Mulhall v Nicholas [2012] NTSC 50

 

PARTIES:                                         MULHALL, Patrick

 

                                                         v

 

                                                         NICHOLAS, Sally

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          JA 9 of 2012 (21113410)

 

DELIVERED:                                   20 JULY 2012

 

HEARING DATES:                           26 JUNE 2012

 

JUDGMENT OF:                              KELLY J

 

APPEAL FROM:                               H HANNAM CM

 

CATCHWORDS:

 

CRIMINAL LAW – Appeal against sentence – Criminal Code s 14 – a person is not guilty of an offence unless the conduct impugned is an offence or constitutes an offence when proceeded against – Criminal Code s 103A – intimidation of witnesses – threats or reprisals relating to persons involved in criminal investigations – appellant convicted after amendments to s 103A – counsel argued that the conduct impugned was no longer an offence – the conduct was found to still be an offence under the new s 103A – appeal dismissed

 

CRIMINAL LAW – Appeal against sentence – sentence manifestly excessive – inability to establish a range of comparable sentences – no record of sentences and sentencing remarks from the Court of Summary Jurisdiction – taking into account the maximum sentence imposed by the legislature the implied threat in the words spoken and other circumstances sentence not considered manifestly excessive – appeal dismissed

 

Criminal Code s 14(1), s 103A, s 103A(1), s 103A(2), s 103A(2)(c)

Sentencing Act s 53, s 54(2), s 57, s 57(1), s 57(2), s 59, s 59(1)(a), s 59(1)(b), s 59(1)(c), s 59(2)

 

R v Tait and Bartley (1979) 46 FLR 386; Van Toorenburg v Westphal [2011] NTSC 31, followed.

 

Caruana v Skinner [1995] WASC 1056; Principle Registrar Victorian Civil and Administrative Tribunal v Izak Jason Rogers [2005] VCAT 307, distinguished.

 

Barnes v Westphal [2008] NTSC 41; Berry v Westphal & Berry v Cassidy [2012] NTSC 59; Bibi (1980) 2 Cr App R (S) 177; Rory (1992) 64 A Crim R 134; Williscroft [1975] VR 292, referred to.

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     J Tippett QC

    Respondent:                                  P Usher

 

Solicitors:

    Appellant:                                     Darrow Chambers

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       KEL12017

Number of pages:                             15


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Mulhall v Nicholas [2012] NTSC 50

No. JA 9 of 2012 (21113410)

 

 

                                                     BETWEEN:

 

                                                     PATRICK MULHALL

                                                         Appellant

 

                                                     AND:

 

                                                     SALLY NICHOLAS

                                                         Respondent

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 20 July 2012)

 

[1]       In February 2011, the appellant, Patrick Mulhall and his brother were charged with aggravated assault as a result of a fight with F.  The fight was witnessed by three people who did not know the appellant.

[2]       The appellant and his brother pleaded not guilty to the charge and the matter was listed for trial.  On 5 April 2011, the three witnesses were present in court to give evidence at the hearing, but the trial could not go ahead on that day because F could not be found.  As he was leaving the court room that day, after the magistrate had left the bench, the appellant said to the three witnesses, “See you when I get out.”  

[3]       The witnesses complained to police and the appellant was charged with three counts of intimidating a witness contrary to s 103A of the Criminal Code.  Particulars of the alleged intimidation were that on 5 April 2011 the appellant “did intimidate [each named witness] by looking at him/her when [he was] leaving court in custody and said ‘I’ll see youse when I get out’ because, this person appeared as a witness in a judicial proceeding, namely O’NEILL V MULHALL”.  [punctuation and capitalisation in original]

[4]       All three witnesses went on to give evidence at the appellant’s trial for aggravated assault.  The appellant was ultimately acquitted on the aggravated assault charge on the ground that the fight was consensual.

[5]       All three witnesses also gave evidence at the appellant’s trial before the Chief Magistrate on the charges of intimidating witnesses.  On 25 January 2012, the Chief Magistrate found the appellant guilty of those charges.  In doing so, she found that the words said were, “See you when I get out,” that they were directed to the police officer and the three witnesses as a group, and that the appellant spoke those words to them because they were witnesses in his trial.  She also found that saying the words in those circumstances did amount to intimidation of those witnesses.  She said:

“The undisputed fact that each of the witnesses felt intimidated by the words is evidence of which it can be inferred that the speaking of the words was intimidating.  Although it may be that the female witness was less robust than the two male witnesses, all three of them describe being intimidated. 

It is also undisputed that the female witness burst into tears.  It is also not disputed that every other person in the court who gave evidence concluded that the words were threatening or intimidating and they made immediate complaint statements to the police, which supports the inference that the speaking of the words did intimidate the witnesses.” [emphasis added]

[6]       The Chief Magistrate sentenced the appellant to 12 months imprisonment, and indicated that four months of that sentence should be served concurrently with the sentence that the appellant was then serving for an unrelated matter.  (There is a technical difficulty with the way the sentence was structured which will be dealt with below.)

[7]       The appellant has appealed against both his conviction and, alternatively, the sentence on the ground that it is manifestly excessive.

Appeal against conviction

[8]       There were three grounds of appeal against the conviction on the amended notice of appeal, but none of them were pressed.  Instead, the appellant sought leave to add another ground which became the only one argued.  That ground was that the appellant was not liable to be found guilty of the offences by virtue of the operation of s 14(1) of the Criminal Code.

[9]       Section 14(1) of the Criminal Code provides:

“(1)    A person cannot be found guilty of an offence unless the conduct impugned would have constituted an offence under the law in force when it occurred; nor unless that conduct also constitutes an offence under the law in force when he is proceeded against for that conduct.”

 

 

[10]     Section 103A as it was in force when the impugned conduct occurred (ie 5 April 2011) was as follows:

“103A     Intimidation of Witnesses

(1)        Any person who:

(a)         menaces or intimidates another person;

(b)         threatens to do any injury or cause any detriment of any kind to another person; or

(c)         does any injury or causes any detriment of any kind to another person;

because that person has appeared, or has been called or may be called to appear, as a witness in any judicial proceeding is guilty of a crime and liable to imprisonment for 7 years.”

 

(2)     For the purposes of subsection (1)(c), a person my cause detriment to another person:

 

         (a)     by menacing or intimidating a third person;

 

         (b)     by threatening to do any injury or cause any detriment of any kind to a third person; or

 

(c)       by doing any injury or causing any detriment of any kind to a third person.”

 

[11]     On 1 December 2011 (ie after the conduct giving rise to the charges had occurred but before the appellant had been convicted on those charges) s 103A of the Criminal Code was repealed and replaced by a new, much longer and less clearly worded s 103A the first two subsections of which deal with criminal investigations and judicial proceedings in the following terms:

“103A         Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings or against public officers

               (1)     A person must not do any of the following with the intention of inducing a person who is, or may be, involved in a criminal investigation or judicial proceedings, to act or not to act in a way that might influence the outcome of the investigation or proceedings:

                        (a)   stalk a person within the meaning of section 189;

                        (b)   cause or procure any physical injury to a person or property;

                        (c)   threaten or attempt to cause or procure any physical injury to a person or property;

                        (d)   cause detriment of any kind to a person.

                        Fault elements:

                        The person:

(a)      intentionally does an act mentioned in paragraph (a), (b), (c) or (d); and

(b)     intends to induce a person to act or not to act in a way that might influence the outcome of a criminal investigation or judicial proceedings; and

(c)     knows, or is reckless as to whether, the person is or may be involved in the investigation or proceedings.

Maximum penalty:     Imprisonment for 7 years.

               (2)     A person must not do any of the following on account of anything said or done by a person involved in a criminal investigation or judicial proceedings in good faith in the conduct of the investigation or proceedings:

                        (a)   stalk a person within the meaning of section 189;

                        (b)   cause or procure any physical injury to a person or property;

                        (c)   threaten or attempt to cause or procure any physical injury to a person or property;

                        (d)   cause detriment of any kind to a person.

                        Fault elements:

                        The person:

(a)      intentionally does an act mentioned in paragraph (a), (b), (c) or (d); and

(b)     has knowledge of the thing said or done by a person involved in a criminal investigation or judicial proceedings in the conduct of the investigation or proceedings.

Maximum penalty:     Imprisonment for 7 years.”

[12]     Senior counsel for the appellant, Mr Tippett QC argued that at the time the appellant was convicted, the amendments to s 103A meant that the conduct which formed the basis of the charges was no longer an offence.

[13]     In written submissions, Mr Tippett referred to subsection 103A(1) only and argued that under the law as amended what he called “mere intimidation of another person because the person is called as a witness” is not an offence.  He contended that an offence is not committed unless the act in question is intended to induce a person to act (or not act) in a way that might influence the outcome of judicial proceedings.

[14]     This argument ignores the existence of subsection 103A(2) which contains no such qualification.  When this was pointed out, Mr Tippett initially contended that a requirement that the act in question be done with the intention to induce a person to act (or not act) in a way that might influence the outcome of judicial proceedings somehow “carried over” from subsection (1) to subsection (2).  That contention being self-evidently unsustainable, his final submission was that the word “threat” in paragraph 103A(2)(c) was not the same as the word “intimidate” under the old provision.

[15]     Clearly the words used in the new section are not the same as the words in the old section.  (There are many more of them to begin with.)  It may also be that the new section is narrower in compass than the old section.  In particular, if s 103A(2)(c) is limited to threats “to cause physical injury to a person or property” that may be narrower than “intimidation”.  If so, one wonders whether the legislature intended to narrow the range of conduct towards a witness which would constitute an offence, or if this was an unintended consequence of the amendments.  However, those questions do not fall to be determined on the present appeal.  The question here is not whether the old section and the new section cover precisely the same conduct, but whether the conduct of the appellant as a result of which he was convicted of three counts of intimidating a witness contrary to the old s 103A is no longer an offence under the new section 103A. 

[16]     In my view, that conduct is still an offence under the new section.  It seems to me that the only reason the words spoken by the appellant were found to amount to intimidation is that they contained an implied threat of physical harm to the witnesses or their property.  Indeed, as the learned chief magistrate pointed out in her sentencing remarks, “it was not disputed that every other person who was present in the court who gave evidence at the appellant’s trial, concluded that the words were threatening or intimidating.”  As counsel for the respondent pointed out, the words were spoken by the appellant to witnesses who did not know him otherwise than having seen him involved in a violent fight which led to him being charged with aggravated assault, and they were said in such a manner as to cause the female witness to burst into tears and all of them to feel intimidated.

[17]     This ground of appeal fails.

 

Appeal against sentence

(a)     Is the sentence manifestly excessive?

[18]     An appellate Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it can be shown that a sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.[1]  The sentence is presumed to be correct.[2]

[19]     Thus it is that where an appellant contends that the sentence imposed is outside the range, the onus is on the appellant to establish the range.  Neither counsel was able to provide the Court with examples of comparable sentences.  Mr Tippett for the appellant referred the Court to two cases from other jurisdictions.  One was a Western Australian case[3] in which a woman approached a witness in the course of giving evidence “in a quite threatening and intimidating manner”.  She was subdued and removed from the court and later convicted of wilfully interrupting proceedings in the Court of Petty Sessions contrary to s 41 of the Justices Act 1902 (WA) and sentenced to 3 months imprisonment.  (On appeal the sentence was reduced to a little over three weeks as a result of psychiatric evidence not before the sentencing magistrate.)  The other was a Victorian case in which the accused, described as “a large, strong-looking young man” made “clear and alarming threats of violence” to witnesses in the course of a hearing in the Victorian Civil and Administrative Tribunal.[4]  He was charged with contempt of court, convicted and fined $3,000.  The Judge indicated that his initial inclination was to sentence the defendant to a term of imprisonment but changed his mind as a result of the defendant’s guilty plea, apology and his personal circumstances.  Neither of these cases is particularly helpful.  Neither is a case where the accused was charged with intimidating a witness.  Both involved charges which focused on the disruption which the behaviour in question caused to the Court proceedings.

[20]     I have been unable to locate any sentences handed down in this Court for breach of s 103A.  There has been at least one in the Court of Summary Jurisdiction that was the subject of an appeal against conviction in Barnes v Westphal[5]. The appellant in that matter was convicted of an offence against s 103A(1) and sentenced to a term of imprisonment of 6 weeks.  The conduct that formed the basis of the conviction was telling a potential witness to get out of a car and fight and saying, “You’re fucking dead”.  The appeal against conviction was allowed and there was no question on the appeal as to the adequacy or otherwise of the sentence.  If there are other cases, and if those establish a range, it is not possible to determine.

[21]     In Berry v Westphal & Berry v Cassidy[6], I made the following comments as a result of the inability of either counsel or the Court to locate comparable sentences which would establish a range of sentences for disorderly conduct.

“[42]  In Rory[7], Kearney J in the Supreme Court of the Northern Territory said:

“It is desirable that detailed sentencing statistical material be made available to this Court when it sits on appeal from sentences imposed by courts of summary jurisdiction.  That is because it is frequently difficult for this Court to assess what is appropriate by way of the exercise of the sentencing discretion, unless it knows the sentences currently imposed for similar offences by those courts: see the observations of Adam and Crockett JJ in Williscroft[8].  There are at least two other reasons why such material should be routinely produced.  First, counsel cannot intelligently advise whether a sentence should be appealed on the basis that it is manifestly excessive, unless he is aware of the sentences imposed in other cases similar in character.  Excessiveness of sentence is a relative concept, and knowledge of other sentences is essential to determine whether the sentence in question is significantly different.  Secondly, such statistical information is also essential for sentencing magistrates to prevent, as far as may be, unjustified disparity of sentencing.  The existence of such information is an essential first step towards attaining a desirable uniformity of approach: see the observations of Lord Lane CJ in Bibi[9].  Regrettably, suitable official sentencing statistics are not as yet available in this jurisdiction, despite the highly computerised systems used by the courts.  The use of computer power should enable such statistical material to be readily produced.”

[43]   Unfortunately, nearly 20 years later, sentences and sentencing remarks from the Court of Summary Jurisdiction are still not published in a form which is accessible to this Court and to practitioners.”

[22]     The situation remains unchanged.

[23]     The appellant points to no error of principle and has been unable to establish that there is a range of sentences for offences of this kind and that the appellant’s sentence falls outside that range.  

[24]     I accept that this is not the most serious example of an offence of this type.  Counsel for the appellant submitted that the words spoken by the defendant should be seen as “simply bravado” given that they were said in court in front of numerous witnesses and the appellant was in custody at the time and therefore unable to immediately cause harm to anyone.  Counsel for the respondent submitted that, if anything, the audacity of making the implied threat in the courtroom aggravated the offence.  The submission that this statement was “mere bravado” is not consistent with the findings of fact by the learned magistrate that the words were “threatening or intimidating” and the effect they had on the witnesses to whom they were spoken.  The fact that the appellant was in custody at the time is not relevant, given that the words spoken were, “See you when I get out.”

[25]     Taking into account the maximum sentence imposed by the legislature, the implied threat in the words spoken, the circumstances in which they were spoken, and the personal circumstances of the appellant, I do not consider that a sentence of 12 months imprisonment (with 4 months to be served concurrently with his existing sentence) is manifestly excessive.

(b)   Technical defect in the sentence

 

[26]     When the learned chief magistrate was sentencing the appellant for the offence under s 103A, he had already been sentenced in the Supreme Court to a term of imprisonment for 6 years beginning on 4 August 2011, with a non-parole period of 4 years and 6 months, for charges of causing serious harm, aggravated assault and stealing.

[27]     The chief magistrate sentenced the appellant to imprisonment for 12 months and indicated that she intended that 4 months should be served concurrently with the term imposed in the Supreme Court and the balance of 8 months cumulatively.  (The rationale for this was that M had spent 4 months on remand at an earlier time on the charge of assault for which he was ultimately acquitted.)

[28]     As the sentence she imposed was for 12 months or longer, and not suspended in whole or part, the learned chief magistrate was obliged to fix a non-parole period unless she considered that the nature of the offence, the past history of the offender or the circumstances of the particular case made the fixing of such a period inappropriate.  [Sentencing Act s 53] Although the chief magistrate did not explicitly state that she had considered whether or not to fix a non-parole period, it seems that she must have formed the view that it was not appropriate to do so in the circumstances.  (As the minimum non-parole period for the sentence which the learned chief magistrate was imposing would have been 8 months [s54(2)], and she was only adding 8 months to the existing sentence, one can readily appreciate why she did not consider it appropriate to fix a non-parole period.)

[29]     If she had decided to fix a non-parole period for the sentence she was imposing, the provisions of s 57 of the Sentencing Act would have applied and she would have been obliged to fix a new, total non-parole period in respect of both sentences [s 57(1)].  That combined non-parole period would have been required to be no less than the non-parole period which had been set in relation to the existing sentence plus the minimum non-parole period for the further sentence she was imposing. [s 57(2)]

[30]     As she did not fix a non-parole period under ss 53, 54 and 57, the provisions of s 59 of the Sentencing Act applied to determine the order in which the sentences should be served.  The first to be served is the new sentence of 12 months handed down by the learned chief magistrate in respect of which no non-parole period was fixed [s 59(1)(a)]; the second to be served is the non-parole period for the existing sentence [s 59(1)(b)]; and finally the balance of the existing sentence unless and until the appellant is released on parole [s 59(1)(c)].  As the existing sentence had been partly served when the sentence of 12 months imprisonment was imposed, it would be necessary for the service of the existing sentence to be suspended to enable the sentences to be served in that order.  There is no need for any order to be made to accomplish that, as that is the effect of s 59(2).

[31]     There is no discretion in the courts to alter the order of service of sentences prescribed by s 59.  (Indeed it would be futile to attempt it since s 59 simply sets out the logical consequences of a court or courts sentencing a person to serve a sentence without a non-parole period as well as one with a non-parole period.  For the two sentences to take effect as intended, the sentence without a non-parole period must be served first.)

[32]     Hence (as both counsel agreed) the learned chief magistrate was in error in ordering that the 12 month sentence she imposed commence four months before the end of the existing non-parole period.

[33]     Accordingly, I set aside that sentence and instead sentence the appellant to imprisonment for 12 months commencing on the date of imposition of the sentence by the learned chief magistrate, and direct that that sentence be served concurrently with the existing Supreme Court sentence as to 4 months and cumulatively as to the balance of 8 months.  The effect of the application of s 59 is that service of the Supreme Court sentence will be suspended for 8 months from the date of commencement of the fresh sentence while the cumulative portion of the fresh sentence is served, and will then re-commence.



[1]         R v Tait and Bartley (1979) 46 FLR 386 at 388

 

[2]         Van Toorenburg v Westphal [2011] NTSC 31 at [3]

 

[3]         Caruana v Skinner [1995] WASC 1056

 

[4]        Principle Registrar VCAT v Izak Jason Rogers [2005] VCAT 307

 

[5]         [2008] NTSC 41

[6]         [2011] NTSC 59

 

[7]         (1992) 64 A Crim R 134 at 138

 

[8]         [1975] VR 292 at 301.

 

[9]         (1980) 2 Cr App R (S) 177 at 179.