Carne v Wride & Carne v Nicholas [2012] NTSC 33

 

PARTIES:                                         CARNE, Barry James

 

                                                         v

 

                                                         WRIDE, Susan

 

                                                         and

 

                                                         CARNE, Barry James

 

                                                         v

 

                                                         NICHOLAS, Sally

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 18 of 2012 (21133390) &

                                                         JA 19 of 2012 (21126215)

 

DELIVERED:                                   15 MAY 2012

 

HEARING DATES:                           11 MAY 2012

 

JUDGMENT OF:                              KELLY J

 

APPEAL FROM:                               E MORRIS SM

 

CATCHWORDS:

 

CRIMINAL LAW – Appeal against sentence – facts not relevant to offence on police précis – sentencer having regard to facts not relevant to the offence – breach of a domestic violence order – whether act of hanging himself outside family home was an action within the definition of domestic violence – whether act was considered to be harm or attempted harm to a person’s mental health within the meaning of sub-section 1A(3) of the Criminal Code – no evidence of harm before the magistrate – appeal successful

 

CRIMINAL LAW – Appeal against sentence – failing to properly consider the plea of guilty – failure to state explicitly that a guilty plea has been taken into account and the manner in which it has been taken into account does not necessarily constitute an error – no error in principle

 

CRIMINAL LAW – Appeal against sentence – whether learned magistrate erred in ordering that the sentences imposed be served cumulatively upon one another – section 50 of the Sentencing Act – the two acts constituting the two offences occurred on different days and were totally different acts – Attorney General v Tichy (1982) 30 SASR 84 – no error in the approach of the sentencing magistrate

 

CRIMINAL LAW – Appeal against sentence – whether learned magistrate erred in failing to apply the principle of totality – a failure to specifically state that the totality principle has been applied does not necessarily lead to the conclusion that there has been an error – no error in principle      

 

Criminal Code s 1A

Domestic and Family Violence Act s 5 (f), s 6 (1) (c)

Sentencing Act s 50

 

Brown v Lynch (1982) 15 NTR 9; Carnese v R [2009] NTCCA 8 at [33]-[36]; Carroll v The Queen (2011) 29 NTLR 106; Jambajimba v Dredge (1985) 33 NTR 19; Lo Castro v R [2011] NTCCA 1; Mather v R [2009] NTCCA 15 at [25] & [26]; Miles v The Queen [2001] NTCA 9; Mill v R (1988) 166 CLR 59; R v Nadich [2012] NTCCA 4; Postiglione (1997) 189 CLR 295; Van Toorenburg v Westphal [2011] NTSC 31; followed.

 

Attorney General v Tichy (1982) 30 SASR 84; Bartusevics v Fisher (1973) SASR 601; R v Creed (1985) 37 SASR 566; applied.


 

REPRESENTATION:

 

Counsel:

    Appellant:                                     J Truman

    Respondent:                                  M McColm

 

Solicitors:

    Appellant:                                     Halfpennys

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    C

Judgment ID Number:                       KEL12012

Number of pages:                             21


 

 


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Carne v Wride & Carne v Nicholas [2012] NTSC 33

No. JA 18 of 2012 (21133390) & JA 19 of 2012 (21126215)

 

 

                                                     BETWEEN:

 

                                                     BARRY JAMES CARNE

                                                         Appellant

 

                                                     AND:

 

                                                     SUSAN WRIDE

                                                         Respondent

 

                                                     AND BETWEEN:

 

                                                     BARRY JAMES CARNE

                                                         Appellant

 

                                                     AND:

 

                                                     SALLY NICHOLAS

                                                         Respondent

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 15 May 2012)

 

[1]       In August 2011 the appellant Barry Carne had been in a relationship (described by him as an on again off again relationship) with LS for about 18 years.  She was the mother of his four children then aged from 15 to 6 years old. 

[2]       Although the appellant had had the custody of the three older children for a number of years, in August 2011 the mother of the children was living in the family home with all four children.  The appellant was not living there.

[3]       On the evening of 12 August 2011 the appellant telephoned LS at home.  He became aggressive towards her and she hung up.  He called her back and said, “I’m coming round,” and she called the police.

[4]       The appellant went to the family home, went inside, picked up a television set and threw it from the front balcony, smashing it. 

[5]       He then went down to the driveway and confronted LS.  He saw a gold ring on her finger which he had previously given to her and said, “Give me the ring”.  She refused.

[6]       The appellant then grabbed LS’s right hand, twisted her wrist and forced her finger backwards causing her to fall to her knees in pain thinking that he had broken her finger.  The appellant forced the ring off her finger saying, “Give it to me.  Call the police, I don’t care”. 

[7]       He was charged with aggravated assault and a Domestic Violence Order (“DVO”) was put in place restraining him, among other things, from:

(1)     contacting or approaching LS (except in limited, controlled and presently not relevant circumstances);

(2)     approaching, entering or remaining at any place where LS was living;

(3)     intimidating or harassing LS; or

(4)     exposing the children of the relationship to domestic violence.

[8]       On the night of 21 August 2011, while the DVO was in force, the appellant telephoned LS.  Then he went to her home, made his way upstairs onto the veranda and knocked on the front door.  She was inside the house but refused to answer the door. 

[9]       A short time later the appellant tied one end of a rope to an exposed roof beam next to the front door, tied the other end of the rope into a noose, put the noose around his neck, climbed over the veranda railing, and jumped off the veranda, causing himself to hang by the neck.  All this was witnessed by the appellant’s 14 year old son who cut the rope and lowered the appellant, who by that time was unconscious, to the ground.  The appellant was in a serious condition and taken to hospital, but later recovered.

[10]     On 7 December 2011, the appellant pleaded guilty to one charge of aggravated assault arising out of the incident on 12 August and one charge of breaching a DVO arising out of the incident on 21 August 2011. 

[11]     The matter was adjourned to enable a psychiatric report and pre-sentence report to be obtained and the appellant was remanded in custody.  He was sentenced in the Court of Summary Jurisdiction on 29 February 2012.

[12]     There was some confusion in proceedings before the learned sentencing magistrate on 29 February 2012.  Copies of the police précis outlining the events referred to above were on the court file.  It was apparently assumed by the sentencing magistrate (who was not the magistrate before whom the pleas were entered) that those précis had been tendered during the earlier proceeding at which the pleas were taken.  The following exchange occurred between the prosecutor and the sentencing magistrate:

“MR TEAGUE:      Your Honour, can I request what has been tendered previously in relation to these ...

HER HONOUR:    No, just the précis.”

[13]     It is evident from the transcript of proceedings on 29 February 2012 that defence counsel who appeared for the appellant on the sentencing hearing was aware of the details of the allegations contained in the précis and indeed that he must have had a copy.  The following exchange occurred between the sentencing magistrate and defence counsel:

“HER HONOUR:   All the pleas have already been given.

MR MALEY:         Have already entered, facts have been read ...”.

[14]     Defence counsel then referred to the facts of the offending in the following terms:

“Your Honour, in terms of the facts, your Honour you will probably note that in terms of that first offence and the first allegation, the allegation which occurred on 12 August, your Honour, it’s an assault which really flowed from a domestic argument.  My client was demanding a number of things.  When obviously reconciliation wasn’t going to occur, he’s then physically removed the wedding ring off his former partner’s finger and that had hurt her hand and it caused, according to the précis, some bruising to her right ring finger.

Your Honour, there’s allegations that a TV was damaged but that was his TV.  He replaced that in any event.  He’s written an apology and done all he can to demonstrate real and genuine remorse in respect of that.

Your Honour, in relation to that second file which was dealt with by way of a plea of guilty, that’s the 21st August events.  I’ll just remind you that is an absolutely tragic set of circumstances.  My client attempted to commit suicide and he was effectively cut down by one of his children and since – everything just came to an absolute head in his life with pressure and it all just came crashing in.” [emphasis added]

[15]     In sentencing the appellant on the charge of aggravated assault on 12 August the learned sentencing magistrate said this:

“In relation to that assault, it was a nasty assault.  It obviously caused a great deal of pain, enough for her to think her finger was broken.  However, it is more towards the lower end of the scale in relation to the assaults that are dealt with under that particular section.”[1]

[16]     In relation to the breach of the DVO, the learned sentencing magistrate said this:

“In my view, that breach of the domestic violence order is a despicable, cowardly act of violence aimed at his wife and children who were present at the time.  It is an absolutely dreadful and selfish thing to do.  It is both in its – how it was carried out and in his intentions.

In the psychiatrist’s report, Dr McLaren says in his opinion: ‘It was clearly a determined attempt motivated largely by rage but not by any sense of guilt or worthlessness.’  And it would appear to me that the evidence supports that finding, not just from a psychiatric view.

To put his children and his previous partner through that I find makes this contravention of the domestic violence order to the upper seriousness in relation to this particular kind of offence.  Merely because there was no physical harm or physical damage to the children or to the adult protected person does not mean that contraventions of domestic violence order cannot have serious ramifications.

It would be an extraordinary child of 14 who this did not affect for the rest of their life.  Mr Carne comes to court with a couple of references from people who have gone out of their way to support him through this time of his life; people who he has known since primary school.

He has a supportive family who are here in court today and have supported him during the time of the breakdown of his relationship as well as obviously the time that he has spent in custody.  Obviously good personal and family support is also an indicator in relation to prospects of rehabilitation and that having that support (inaudible) well for his rehabilitation.

There are some matters contained in the psychiatric report which are some cause for concern though in relation to Mr Carne’s own ability to rehabilitate himself.  There is obvious need for him to address any amphetamine use or being tempted by amphetamine use upon his release from prison and that would obviously need to be addressed.

I take into account in relation to these matters general deterrence and personal deterrence in relation to this kind of offending.  Families including women and children need to be kept safe particularly when the court and the system has engaged an order which is meant to do just that.  It did not work for Mr Carne’s family on this particular occasion.”

[17]     The sentencing magistrate sentenced the appellant to eight months imprisonment on the charge of breaching the DVO and two months imprisonment in relation to the aggravated assault.  The sentences were ordered to be served cumulatively and backdated to take into account time already spent in custody on remand.

[18]     The sentencing magistrate ordered the sentence to be suspended after the appellant had served six months on conditions including supervision, counselling and abstinence from drugs and alcohol.

[19]     The appellant has appealed against both sentences on the ground that the sentences imposed are manifestly excessive in all the circumstances.  By consent, leave was given to add additional grounds of appeal.

[20]     In respect of the appeal against sentence in respect of the breach of DVO leave was given to add two additional grounds of appeal, namely:

(1)        that the learned magistrate impermissibly aggravated the sentence by having regard to facts and circumstances not relevant to the offence for which the appellant pleaded guilty;

(2)        that the learned magistrate erred by failing to properly consider the plea of guilty.

[21]     In respect of the appeal against the sentence for the aggravated assault leave was given to add four additional grounds of appeal, namely:

(1)        that the learned magistrate impermissibly aggravated the sentence by having regard to facts and circumstances not relevant to the offence for which the appellant pleaded guilty;

(2)        that the learned magistrate erred by failing to properly consider the plea of guilty;

(3)        that the learned magistrate erred in ordering that the sentences imposed be served cumulatively upon one another;

(4)        that the learned magistrate erred in failing to apply the principles of totality when sentencing the appellant.

[22]     The two appeals were heard together.  In these reasons, the additional grounds of appeal against the sentence for breach of the DVO, being the more serious offence, will be dealt with first, then the additional grounds of appeal against the sentence for the aggravated assault, followed by the ground of appeal that the total sentence was manifestly excessive.

 

Appeal against the Sentence for Breach of the DVO

 

Additional ground 1

 

[23]     In relation to the sentence for breach of the DVO, the appellant argues, in additional ground 1, that the learned magistrate impermissibly aggravated the sentence by having regard to facts and circumstances not relevant to the offence for which the appellant pleaded guilty. 

[24]     In support of this submission counsel for the appellant advanced a number of contentions, in her written submissions.

[25]     First it was contended that as the facts were not read onto the record or formally tendered, the appellant was not made aware of the facts relied upon in open court for the purposes of his sentence.  That contention is simply factually inaccurate.  As outlined above, it appears from the transcript that defence counsel had a copy of the précis and was well aware of the facts which were alleged against the appellant, believed that these facts had been read onto the record when the plea was taken, and himself summarised the facts in terms entirely consistent with the précis.

[26]     Obviously the facts ought to be read onto the record, and it is highly undesirable that copies of police précis should find their way onto the court file without being tendered, if for no other reason than that there is a risk that the version on the court file may not reflect the finally agreed facts. However, counsel for the appellant conceded that in this case the copy of the précis on the court file was in fact the one which was in the possession of defence counsel at the time and must be taken to have been the agreed facts.

[27]     Secondly it was contended by the appellant that the only allegations in the précis relevant to the offence were that the appellant had telephoned the victim and attended at her residence thus attempting to contact and communicate with her contrary to the terms of the DVO and that therefore the learned magistrate was in error in sentencing the appellant on the basis that the attempted suicide formed part of the breach of the DVO. 

[28]     The question is whether the appellant’s act of hanging himself outside the front door of the family home was an action which came within the definition of domestic violence in the Domestic and Family Violence Act (“the Act”). 

[29]     Under s 5 of the Act domestic violence includes causing harm and intimidation.  Under s 6 of the Act intimidation includes any conduct that has the effect of unreasonably controlling the person or causes the person mental harm.[2]

[30]     The learned sentencing magistrate was clearly of the view that the appellant’s action had caused mental harm to his 14 year old son.  It seems to me that she was quite entitled to infer from the facts in the précis that it would be an exceptional 14 year old who was not affected for life by the actions of the appellant.  However, in s 4 of the Act “harm” is defined as harm within the meaning of s 1A of the Criminal Code.  Sub-section 1A(3) of the Criminal Code provides:

“Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.”

[31]     It seems to me probable that the appellant’s actions did cause significant psychological harm to the 14 year old son who was obliged to cut the appellant down.  However, counsel for the appellant has pointed out that the Crown adduced no evidence to this effect and that the précis did not recite as an agreed fact that the child had suffered mental harm. 

[32]     It is a very great pity that the Crown did not specify in the précis or elsewhere the particulars of the conduct said to constitute the breach of the DVO.  In the absence of such particulars the magistrate was left to make the best of the précis.  She obviously (and quite naturally) assumed that all of the facts in the précis constituted the offence charged.  It was not brought to her attention at the time that the act of attempted suicide might not be alleged as a breach of the DVO.  If it had been brought to her attention, it would have been necessary for her to decide beyond reasonable doubt whether that conduct fell within the definition of domestic violence in the Act.  In my view, in the absence of evidence that the child suffered significant psychological harm it was not open to the magistrate to be satisfied beyond reasonable doubt that the attempted suicide was conduct which caused mental harm to the son and hence fell within the definition of domestic violence in s 6(1)(c) of the Act.

[33]     Counsel for the respondent pointed out that s 5(f) of the Act brings into the definition of domestic violence any attempt to commit conduct mentioned in the first three paragraphs of the definition.  Those three paragraphs include causing harm and intimidation, and intimidation includes conduct that causes a person mental harm.  Counsel submitted that it was open to the learned magistrate to conclude that the appellant’s actions in attempting suicide in the circumstances was at least an attempt to cause mental harm. 

[34]     The sentencing magistrate found as a fact that the appellant’s conduct in attempting suicide was aimed at LS and the children.  It seems to me that this inference was open to her, and was probably correct.  The appellant tried to hang himself outside the front door of the family home (at which LS and the children were living and he was not) a place where LS and the children would see him if they were at home and, if they were not at home and he succeeded in the attempt, they would be bound to find his body.  Moreover, she had before her a psychiatric report in which Dr McLaren expressed the opinion that the appellant was a manipulative individual and that the attempted suicide was motivated by rage and not by feelings of guilt or worthlessness.  She referred to this opinion in her sentencing remarks.

[35]     However, counsel for the appellant pointed out that as this was a matter of inference, in order to be satisfied beyond reasonable doubt that the conduct was in fact aimed at LS and the children, the magistrate would have had to exclude any other reasonable hypothesis open on the facts.  She submitted that there was another reasonable hypothesis open which had not been excluded, namely that the appellant was simply so desperate that he was thinking of nothing other than taking his own life.  In making this submission she relied on a different paragraph in the psychiatric report in which Dr McLaren said:

“Having lost custody [of the older children], his life began to unravel to the point where death seemed preferable.  However, he continued to deny the problems throughout in that he made no attempt to seek assistance.  He preferred a grand exit, even though a moment’s thought would have told him that it would have a ghastly effect on his children.”

[36]     In order to find that the appellant had attempted to cause mental harm to LS and/or the children the learned magistrate would have had to consider whether she was satisfied beyond reasonable doubt that he had aimed his suicide attempt at them, and satisfied beyond reasonable doubt that the alternative hypothesis, namely that he did not give the question of the effect of his actions on his children “a moment’s thought” but was thinking only that death was preferable, had been excluded.  I am not convinced that it was not open to her to be so satisfied beyond reasonable doubt.  Unfortunately we do not know whether she was as these matters were not argued before her and she did not therefore direct her mind to the question.  She proceeded on the assumption which seems to have been shared at least by defence counsel, that the attempted suicide was an act of domestic violence which formed part of the charge.

[37]     That being the case, I am compelled, reluctantly, to conclude that this ground of appeal must succeed.  Although in the circumstances it is not strictly necessary for me to deal with the other grounds of appeal, I do so for the sake of completeness.

Additional ground 2

[38]     In the second additional ground of appeal against the sentence for breach of the DVO, the appellant complains that the learned magistrate erred by failing to properly consider the plea of guilty.

[39]     It is desirable for the sentence to state that a guilty plea has been taken into account in sentencing, and where a sentencing judge fails to state that he or she has made an allowance for the plea of guilty, it may be more readily inferred that he or she has not done so.  However, failure to state explicitly that a guilty plea has been taken into account, and to state the manner in which it has been taken into account, does not necessarily constitute an error which vitiates the sentence.[3] 

[40]     It is not to be assumed that the failure to mention a sentencing principle means that it has been overlooked.[4]  In particular, magistrates are working under pressures which mean that they are simply unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[5]  An appellate court is entitled to assume that a magistrate has considered all matters which are necessarily implicit in any conclusions which he has reached.[6]

[41]     In the present case, the sentencing magistrate specifically referred in her sentencing remarks to the fact that the appellant had pleaded guilty, from which it can be inferred that she did take it into account.  However, she did not state how she took it into account or specify any particular reduction in the sentence on account of the plea of guilty.  That is unfortunate.  However, given the nature of the offending (as she assumed it to be) and the sentence imposed, I am not prepared to conclude that the magistrate must have failed to make an appropriate reduction in the sentence on account of the guilty plea. 

Appeal against the sentence for aggravated assault

Additional ground 1

[42]     In the first additional ground of appeal against this sentence, the appellant complains that the learned magistrate impermissibly aggravated the sentence by having regard to facts and circumstances not relevant to the offence for which the appellant pleaded guilty.

[43]     In relation to this ground of appeal too, counsel for the appellant contended that the appellant did not have proper notice of the facts on the précis.  This submission is rejected for the reasons set out above.

[44]     In addition, in written submissions the appellant suggested that the magistrate wrongly took into account the smashing of the television set as an aggravating factor.  In fact the magistrate did not do this.  On the contrary, she simply repeated the remarks of defence counsel to the effect that the television belonged to him anyway, and he had bought another one to replace it.  Thereafter she recited the facts of the assault itself and observed that it was towards the lower end of the scale for assaults dealt with under that particular section.  This ground was not pressed in oral submissions.

[45]     This ground of appeal has not been made out.

Additional ground 2

[46]     The appellant contends in the second additional ground of appeal against the sentence for the aggravated assault that the learned magistrate erred in failing to properly consider the plea of guilty.  I consider that this ground of appeal too must fail for the reasons set out in relation to the appeal on the same ground against the sentence for breach of the DVO.

Additional ground 3

[47]     In the third additional ground of appeal against this sentence, the appellant contends that the learned magistrate erred in ordering that the sentences imposed be served cumulatively upon one another.

[48]     Section 50 of the Sentencing Act provides that unless the court otherwise orders, where an offender has been sentenced to serve a term of imprisonment for an offence is sentenced to serve another term of imprisonment for another offence, the term of imprisonment for the other offence is to be served concurrently with the first offence.  There is no fetter upon the discretion exercised by the court and the prima facie rule may be displaced by a positive decision.[7]  In this case, the learned sentencing magistrate made a positive decision to order that the sentences be served cumulatively.

[49]     Generally speaking, when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, wholly cumulative penalties ought not to be imposed.[8]

[50]     The relevant principles have been illuminated in the often quoted judgment of Wells J in Attorney General v Tichy:[9]

“It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or consecutively ... what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.  Sometimes, a single act of criminal conduct will comprise two or more technically identifiable crimes.  Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with technical offences or they may not.  Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice.  The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.  What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been (found) guilty ...

Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap.  Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.”

[51]     The appellant contends that the assault and the contravention of the DVO arise out of a closely related series of occurrences.  I do not agree that this is so, except in the very limited sense that both offences were probably motivated by the appellant’s sense of grievance over the changes that had occurred in his domestic arrangements.  The two acts constituting the two offences occurred on different days and were totally different acts.  They constituted two “separate invasions of the community’s right to peace and order, notwithstanding that they [may have been] historically interdependent” in the limited sense I have just mentioned.  I discern no error in the approach of the sentencing magistrate.  

[52]     This ground of appeal has not been made out.

Additional ground 4

[53]     In the fourth additional ground of appeal against the sentence for aggravated assault, the appellant complains that the learned magistrate erred in failing to apply the principle of totality when sentencing the appellant.

[54]     In applying the principle of totality, the sentencing judge should “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose”.[10]  The aim is to ensure that “the aggregation of the sentences appropriate to each offence is a just and appropriate measure of the total criminality involved”.[11]

[55]     Although a failure to refer to the totality principle may lead to an inference that the sentencing magistrate has failed to apply it where it appears that the sentence is excessive, a mere failure to specifically state that the totality principle has been applied does not necessarily lead to the conclusion that there has been an error.  In this case, the magistrate specifically turned her mind to the question of whether the sentences should be concurrent or cumulative and ordered them to be served cumulatively and, had the conduct constituting the breach of the DVO been as the magistrate had assumed, there is nothing in the sentence which suggests that in doing so, she failed to have regard to the totality principle.

[56]     This ground of appeal has not been made out.

Was the sentence manifestly excessive?

[57]      The original ground of appeal was that the sentence was manifestly excessive in all the circumstances.  There is no complaint about the sentence of two months imprisonment on the aggravated assault charge, but the appellant contends that the sentence of eight months imprisonment for the breach of the DVO was manifestly excessive and that the total sentence of ten months suspended after six months was manifestly excessive.

[58]     The principles applicable to such an appeal are well known.  There is a presumption that the sentence is correct.  The appellate court does not interfere with the sentence merely because it may be of the opinion that the sentence is excessive.  It interferes only if there was an error of principle.  The error may appear in what the sentencing judge or magistrate has said or the sentence itself may be so excessive as to manifest error.  To succeed on this ground the appellant must show that the sentence was clearly and obviously and not just arguably excessive.[12] 

[59]     If the learned magistrate had been correct in her assumption that the attempted suicide was a breach of the DVO, then in my view her assessment that the offence was towards the more serious end of the scale for offences of this kind was unexceptional and the sentence of eight months imprisonment was not only not manifestly excessive but appropriate.

[60]     However, given that I have been driven, reluctantly, to the conclusion that additional ground 1 of the appeal against the sentence for breach of the DVO must succeed, the only actions by the appellant which constituted the breach of the DVO were one telephone call and attending at the family home.  Such a breach would have been towards the lower end of the scale of seriousness for offences of this nature; it would not have been proper to take into account actions the appellant took while at the family home which did not constitute a breach of the DVO; and, in the circumstances, the sentence was manifestly excessive.  Indeed the Crown properly conceded that if those were the only acts constituting the breach of the DVO, this ground of appeal must succeed.

[61]     It seems to me that a sentence of imprisonment for one month would be appropriate in the circumstances.  I therefore set aside the sentence of eight months imprisonment imposed by the sentencing magistrate for breach of the DVO and in lieu thereof impose a sentence of imprisonment for one month.  As I have already indicated, in my view the learned magistrate was correct in ordering that the sentences for the two offences should be cumulative and I order that they be served cumulatively.  I direct that the sentence be suspended after one month.  I fix an operative period of six months from 1 January 2012.  As the appellant has already served more than one month, he should be released forthwith.

 

 

 

 



[1]           The learned magistrate was undoubtedly correct in this assessment given that the only charge was aggravated assault.  However, as the appellant apparently took the ring after assaulting LS and causing her harm, he is extremely fortunate not to have been charged with aggravated robbery which carries a maximum penalty of life imprisonment.

[2]           Section 6(1)(c).

[3]           Carnese v R [2009] NTCCA 8 at [33]-[36] and Mather v R [2009] NTCCA 15 at [25] & [26].

 

[4]           Van Toorenburg v Westphal [2011] NTSC 31 at [23].

 

[5]           Jambajimba v Dredge (1985) 33 NTR 19, at 22 per Muirhead ACJ.

 

[6]           Bartusevics v Fisher (1973) 8 SASR 601.

[7]           Miles v The Queen [2001] NTCA 9, at [36]; Carroll v The Queen (2011) 29 NTLR 106.

 

[8]           Brown v Lynch (1982) 15 NTR 9 at [11].

 

[9]           (1982) 30 SASR 84, at [92].

[10]          R v Creed (1985) 37 SASR 566 at p 568 per King CJ (in the SACCA).

 

[11]          R v Nadich [2012] NTCCA 4 per Southwood J at paragraph [38] citing Postiglione (1997) 189 CLR 295 per McHugh J at 301-8; Mill v R (1988) 166 CLR 59 at 62-63

[12]          Lo Castro v R [2011] NTCCA 1.