Semkin v Verity [2011] NTSC 12


PARTIES:                                         SEMKIN, Keith William




                                                         VERITY, Brett Justin






FILE NO:                                          JA 52 of 2010 (21002924)


DELIVERED:                                   15 FEBRUARY 2011


HEARING DATES:                           15 FEBRUARY 2011


JUDGMENT OF:                              RILEY CJ


APPEAL FROM:                               MORRIS SM





    Appellant:                                     C Bala

    Respondent:                                  M Nathan



    Appellant:                                     North Australian Aboriginal Justice Agency Inc


    Respondent:                                  Office of the Director of Public Prosecutions


Judgment category classification:    C

Judgment ID Number:                       Ril1101

Number of pages:                             7






Semkin v Verity [2011] NTSC 12

No. JA 52 of 2010 (21002924)





                                                     KEITH WILLIAM SEMKIN





                                                     BRETT JUSTIN VERITY








(Delivered 15 February 2011)



[1]       This is an appeal against sentence.

[2]       The appellant was sentenced in the Northern Territory Supreme Court on 29 September 2010 in relation to offences committed against his former partner, Ms L.  The appellant was sentenced to imprisonment for a period of four years.  The sentence commenced on 27 October 2009 and was directed to be suspended after he had served 12 months. The appellant was due to be released on or about 26 October 2010.

[3]       On 20 October 2010, whilst serving the Supreme Court sentence, the appellant pleaded guilty in the Court of Summary Jurisdiction to a charge of breaching a domestic violence order whilst he was in custody.

[4]       The appellant breached a domestic violence order by sending a letter to the victim, Ms L, from the prison on 22 November 2009 saying things such as:

a.         “L I’m very sorry for all the grieve (sic) & harm I cause or done to you since I been with you & I mean it from the bottom of my heart”

b.         “L I still can’t remember what I did to you on that Tuesday.  No matter how hard I think about it.”

c.         “L Can you come out & see me, I would like to talk to u one on one.  Its too hard writing that I like to say. (pls).”

[5]       The appellant made full admissions to the offence. When asked his reason for sending the letter to the victim in contravention of his domestic violence order the appellant replied “Broken heart, saying sorry and all that.” When informed that communication by letter constituted contacting a person contrary to the terms of the domestic violence order the appellant commented “I didn’t know about letters.”

[6]       In relation to the offending, the appellant was convicted in the Court of Summary Jurisdiction and sentenced to a term of imprisonment of three months to commence on 26 October 2010.  The commencement date coincided with the day the appellant was due for release under the Supreme Court sentence.

[7]       In order to appreciate the seriousness of the conduct of the appellant it is necessary to have an understanding of the context in which the breach occurred.  The appellant and Ms L had been together for some 12 months when she ended the relationship on 22 July 2009.  On 24 July 2009 the appellant entered the dwelling of Ms L when she was out, removed her clothing from her bedroom and burnt it in the yard.  He remained in the home until disturbed by Ms L.  Thereafter, on 26 July 2009, he was served with a full non-contact domestic violence order.  On 28 July 2009 he contacted Ms L by text message on 17 separate occasions on the one day.  The messages included veiled threats to her, threats of self harm and professing his “undying love” for Ms L.  On 29 July 2009 he was dealt with in the Court of Summary Jurisdiction for the breaches of the domestic violence order. He was fined $750 and placed on a good behaviour bond.  The domestic violence order was confirmed.

[8]       Between the end of July 2009 and 27 October 2009 Ms L resumed her relationship with the appellant.  On 27 October 2009 the appellant committed the offence of aggravated assault against Ms L.  He went to her workplace armed with two knives and a hammer and followed her as she left for the day.  He chased her to the Knuckey Street taxi rank where he punched her and knocked her to the ground.  He threatened to kill her.  He punched and kicked her while she lay helpless on the ground, stopping only when a member of the public intervened.  It was in relation to the offences of 24 July 2009 and 27 October 2009 that the appellant was sentenced to imprisonment for a period of four years suspended after 12 months.

[9]       The present offending, constituted by the sending of the letter to Ms L, occurred on 22 November 2009 whilst the appellant was in custody serving that sentence.

[10]     The grounds of appeal are:

Ground 1: The sentence was manifestly excessive in all the circumstances of the offender and the offence.

Ground 2:  The learned Magistrate imposed a sentence which failed to give proper application to the principle of totality when considered in conjunction with the sentence imposed by the Supreme Court.

[11]     These grounds were argued together.  It was submitted on behalf of the appellant that the sentence imposed was disproportionate to the objective circumstances of the offence.  Whilst conceding that the offending was serious given the history between the appellant and the victim it was argued that the learned Magistrate paid insufficient regard to mitigating factors in favour of the appellant.

[12]     It was submitted that the appellant's claim that he was not aware that writing a letter was a breach of his domestic violence order reduced his moral culpability.  This submission does not sit comfortably with the fact that the appellant had already been convicted, fined and placed on a good behaviour bond on 29 July 2009 for breaching the domestic violence order by sending text messages.  He had also been remanded in custody for breaching the Order by virtue of his conduct on 27 October 2009.  I do not accept the claim by the appellant nor do I accept this submission.

[13]     Counsel for the appellant pointed to other factors described as "significant factors of mitigation" being:

1.     whilst the appellant had a significant criminal history he had remained out of trouble for 10 years from 1999;

2.     he had "demonstrated an active effort to engage in rehabilitation since being on remand";

3.     he had not been in further trouble since the commission of this offence.

[14]     The learned Magistrate provided ex tempore reasons for sentence.  The reasons focused upon the major issue argued being the correct interpretation of s 121(6) of the Domestic and Family Violence Act.  There is no challenge to the rulings of the learned Magistrate in relation to that provision.

[15]     The matters of mitigation were placed before the learned Magistrate.  Her Honour expressly referred to those matters indicating that she had read all of the material and taken it:

“into account in relation to (the appellant’s) rehabilitative prospects, (his) attitude to his offending as contained in the report, and all the information there about his background and, as I said, prospects for rehabilitation".

[16]     There is nothing in the material placed before me to suggest the mitigatory factors were not taken into account along with the countervailing factors that the appellant had a significant history of violence demonstrating that he had not, at the time of his offending, successfully addressed his anger management and alcohol issues.  He was at that time a mature man, being 41 years of age.  Whilst he was to be given credit for his efforts to undertake rehabilitation, the need for personal deterrence remained a significant factor in determining an appropriate sentence.  This was the view taken when he was sentenced in the Supreme Court and it remained applicable when he was sentenced by her Honour.  The learned sentencing Magistrate expressed concern as to the appellant’s prospects for rehabilitation noting that the appellant "just doesn't get it".

[17]     In determining sentence her Honour expressed the view that the letter constituted a serious breach of the domestic violence order even though no actual physical harm was caused.  This was because of the history of violence by the appellant against Ms L and the fact that the appellant had previously been dealt with for breaches of the order.  He had created a climate of fear for Ms L and the impact of the breach upon her was consequently significant and not unexpected.  The offence was committed whilst the appellant was in custody for similar offending.  This is an aggravating feature.  As the respondent submitted, the appellant showed "an alarming lack of insight into his prior offending and its impact upon the complainant".  He was not deterred by the fact that he was in custody in relation to other offences committed against Ms L.

[18]     General deterrence was also a significant factor in determining an appropriate sentence in all the circumstances.

[19]     It was submitted that the learned Magistrate failed to give proper application to the principle of totality.  The offending with which her Honour was dealing was not part of the course of offending which occurred on 27 October 2009. Although the offending arose out of the relationship between the appellant and Ms L the incidents were separate in time and of a different order.  The breach of the domestic violence order occurred whilst the appellant was in custody in relation to the other matters and amounted to conduct of such a different kind as to require a separate sentence.  Whilst the totality principle has application, her Honour has not been shown to be in error in concluding that the conduct of the appellant was such that it required a sentence of imprisonment that should be served cumulatively upon the sentence then being served.  Indeed the relevant legislation required cumulation.

[20]     In my opinion the sentence imposed was not manifestly excessive.  In my opinion it was appropriate in all the circumstances.  The appeal is dismissed.