Barrett (a pseudonym) v Pemberton [2025] ACTSC 152

1. On 20 August 2024, John Barrett (the appellant) pleaded guilty to one count of contravening a family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT). The maximum penalty is 500 penalty units or five years imprisonment or both.

2. On 30 August 2024, Magistrate Wilson (the Magistrate) convicted the appellant and sentenced him to a six-month good behaviour order.

3. By way of a Notice of Appeal filed on 24 September 2024, the appellant appealed against that sentence. At the conclusion of the hearing on the appeal, the appellant was granted leave to amend his Notice of Appeal to add an additional ground.

4. The grounds as particularised in the Amended Notice of Appeal are as follows: (a) That the learned Magistrate erred by not expressing an assessment of the objective seriousness of the offending conduct. (b) That the learned Magistrate erred by not specifying and/or applying a discount for the appellant’s guilty plea. (c) That the learned Magistrate erred by not giving adequate reasons in respect of the appellant’s guilty plea. (d) The sentence is manifestly excessive. (e) The learned Magistrate erred by not referring to and/or taking into account the two days the appellant spent in custody.

5. For the reasons outlined below, the appellant has not established any of his grounds of appeal. Accordingly, the appeal should be dismissed. Background The offending

6. On the evening of 22 June 2024, the appellant became intoxicated in the presence of his wife (the victim). Shortly after, the appellant and the victim found themselves in a verbal argument, which led to the victim calling the police. At approximately 2:30am on 23 June 2024, Police attended the family home, removed the appellant from the home, and served him with an after-hours family violence order.

7. One of the conditions of the after-hours family violence order was that the appellant not contact the victim except in limited circumstances, such as through a legal practitioner, at a counselling or mediation session or restorative justice conference, or at a court or tribunal proceeding.

8. At about 4:40am on 23 June 2024, the victim contacted Police to report that the appellant had attempted to call her eight times. The victim did not answer these calls. The victim also reported that the appellant had attempted to call her family in India.

9. On 24 June 2024, the appellant was subsequently arrested by Police for breaching the after-hours family violence order. He was taken into custody at that time, and was subsequently granted bail on 25 June 2024. Procedural History

10. The appellant was charged with the offence of contravening a family violence order on 24 June 2024. The appellant pleaded guilty to the offence on 20 August 2024. The proceedings for sentence were listed for hearing 10 days later, on 30 August 2024.

11. At the sentence hearing, the appellant’s legal representative submitted that the Magistrate should impose a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The appellant’s legal representative advanced two submissions in support of this contention. First, he submitted that the nature of the offending was of low objective seriousness having regard to the context in which it occurred, namely that the appellant recklessly, rather than deliberately, breached the after-hours family violence order after having its conditions explained to him in the early hours of the morning while intoxicated. Second, he submitted that convicting the appellant would disproportionately affect the victim who, with the appellant, was applying for permanent residency in Australia.

12. The respondent submitted that a non-conviction order would not be appropriate. The respondent submitted that the objective seriousness of the offending was aggravated because the appellant breached the after-hours family violence order approximately two hours after its conditions were explained to him by Police. The respondent also submitted that no weight ought to be placed on the consequences for the victim of the appellant potentially being denied permanent residency, as the victim was likely to have “other options” available to remain in Australia. The respondent also submitted that as the appellant had returned to living with the victim, the need for specific deterrence was high.

The Magistrate’s judgment

13. After hearing submissions from the parties, the Magistrate delivered an ex tempore judgment.

14. In that judgment, the Magistrate rejected the appellant’s submission that the offending was at the lowest end of objective seriousness. In so finding, her Honour took into account the number of calls and the “swiftness” of the breach, which her Honour concluded demonstrated a wilful disregard of the order. Whilst acknowledging that “there may be an adverse impact” on the appellant and the victim’s permanent residency application, her Honour expressed the view that this was not certain, noting that it was not “entirely clear how [a conviction] would impact”. In any event, her Honour concluded that any effect on the permanent residency application did not warrant a decision to decline to record a conviction in circumstances where a conviction should otherwise be recorded.

15. Her Honour had declined the appellant’s invitation to impose a non-conviction pursuant to s 17 of the Crimes (Sentencing) Act. Her Honour instead sentenced the appellant to a six month good behaviour order. This sentence forms the basis of the present appeal. Jurisdiction

16. This Court is conferred with appellate jurisdiction concerning any sentence or penalty imposed by the Magistrates Court: Magistrates Court Act 1930 (ACT) pt 3.10.

17. This Court, however, cannot set aside sentences imposed by the Magistrates Court simply because it might have imposed a different sentence on hearing the appeal. The sentence may only be set aside if this Court is satisfied that the exercise of sentencing discretion in the Magistrates Court was infected by patent or latent error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499: Hayne v Zheng [2023] ACTSC 326 at [12].

Determination

Ground (a): Objective Seriousness

18. Ground 1, as amended, alleged that the Magistrate erred when assessing or purporting to assess the objective seriousness of the offence.

19. The principles relating to a Magistrate’s duty to make an assessment of objective seriousness in this jurisdiction are well established. It is necessary for the sentencing court to make an assessment of the objective gravity, or objective seriousness of the offending: Forster-Jones v The Queen [2020] ACTCA 31 at [29] – [30]. However, it is not necessary to reach a conclusion in the form of ‘labels’ such as ‘low-range’, ‘mid-range’ or ‘high range’ offending. Indeed, it has been held that: … references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case. R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]; R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [18] – [25]

20. The requirement that the sentencing judge identify the “particular features” that inform the objective seriousness of the offending is not met by “simply recit[ing] the facts on which any particular count is based”: Foster-Jones at [29] – [30].

21. However, that is not what the Magistrate did in the present case. As the respondent submitted, the Magistrate did not simply “recite” the agreed facts. Rather, she identified various matters which were relevant to the objective seriousness of the offending. In particular, her Honour found as follows: I have to take into account the seriousness of the offence. I think that the seriousness of [the] offence is not at the lowest end of the scale because of the swiftness within which he did breach the FVO. It was breached not by one missed call or one attempted call to the complainant but by eight calls. And, in addition, he had also in addition to the eight calls to her, made calls to her family in India. So he had actively been calling people at that hour of the day and I don’t think that it is at the lowest end of seriousness of the offending.

22. The Magistrate also properly took into account the matters specified in s 34B of the Crimes (Sentencing) Act, in particular, that the offending had occurred in the victim’s home, and also later found that the appellant “[d]espite being intoxicated, … made a choice to make the multiple calls to the complainant after recently being served with a [family violence order]”.

23. From the above, it is clear that the Magistrate identified the following matters as relevant to the objective seriousness of the offending: (i) The breach occurred very soon after the FVO was imposed; (ii) The appellant’s calls were not answered; (iii) The appellant’s calls were “multiple in number”; (iv) The appellant was intoxicated; (v) The appellant made a deliberate choice to make the multiple calls after being served with the FVO; and (vi) The offending occurred at the victim’s home.

24. This analysis amply satisfied the requirement for the Magistrate to assess the objective seriousness of the offence, particularly when one takes into account the need to read the reasons of the Magistrate fairly, as a whole, and bears in mind the “pressure and the nature of the work” of a busy Magistrate: Barnes v Lodding [2020] ACTCA 23 at [33], quoting Field v Unas [2019] ACTSC 13 at [25].

25. The appellant also submitted that even if the Magistrate’s analysis would otherwise be sufficient to meet the requirement to assess the objective seriousness of the offending, the Magistrate fell into error because she made an incomplete assessment on the quantitative range. Specifically, the appellant submitted that having embarked on the task of placing the objective seriousness on a range (by finding that the objective seriousness of the offence was “not at the lowest end of the range”), it was then necessary for the Magistrate to make a positive finding as to where on the range the offending fell.

26. I do not accept this submission. As outlined above, it is not the case that a sentencing judge is required to make an assessment as to whether offending is low-range, mid-range or high-range. The only obligation is for the Magistrate to identify the particular features of the offending that inform the objective seriousness of the offence. The Magistrate did this. The fact that her Honour went further, and rejected a specific range-based submission that had been made on behalf of the appellant did not alter the nature of the obligation.

27. This ground of appeal should be dismissed.

Grounds (b) and (c): Plea of guilty

28. Grounds (b) and (c) each relate to the effect of the appellant’s guilty plea on the sentence that was imposed. The appellant submitted that the Magistrate erred by not specifying and/or applying a discount for the appellant’s guilty plea, and by not giving adequate reasons in respect of the appellant’s guilty plea.

29. The Magistrate stated: I definitely take into account the plea of guilty was entered by the offender at the earliest possible stage.

30. This finding was an unequivocal statement that the guilty plea had been taken into account, and that the Magistrate had assessed the plea (in accordance with the parties’ submissions) as being made at the “earliest possible” time.

31. It is difficult to see what more the Magistrate could have said. It was common ground between the parties that the s 10 threshold had not been crossed. Accordingly, the sentence to be imposed was not one to which ss 35 or 37 of the Crimes (Sentencing) Act applied.

32. Of course, as the appellant submitted, there remained a common law discretion to take the plea into account: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. However, there is no common law obligation to state the precise reduction that has been applied as a result of taking into account of the guilty plea.

33. In circumstances where a term of imprisonment was not imposed (whether full-time or suspended), it was not necessary for her Honour to specify the sentence that would have been imposed in the absence of a guilty plea. It was sufficient for her Honour to record that the guilty plea had been taken into account, and to state that the utilitarian value of the plea had been assessed on the basis that it was entered “at the earliest possible stage”.

34. This ground of appeal should be dismissed.

Ground (e): Failing to take into account the two days of custody that were served by the appellant

35. As outlined above, the appellant spent two days in custody, bail refused, in respect of the present offending. The Magistrate did not refer to that period of custody in her reasons for sentence.

36. However, immediately before imposing sentence, the Magistrate had the following exchange with the prosecutor and the appellant’s legal representative: HER HONOUR: You wouldn’t submit that the section 10 threshold is crossed though. MS PICKLES: No, no. Certainly not. HER HONOUR: Yes. I will just take into account that he has spent two days in custody but you are not suggesting that I, for example, sentence him to time served. MS PICKLES: No. HER HONOUR: I wasn’t considering that so I won’t ask you what your views are. It is obvious because of your section 17 application. MS FISHER: Yes, your Honour. Thank you.

37. Although this exchange did not form a part of the Magistrate’s formal reasons for sentence, it may be taken into account in determining whether the error alleged by the appellant is established. As Jagot J held in Stanley v DPP (NSW) [2023] HCA 3; 278 CLR 1 at [215] (in dissent, but not on this issue): I agree that submissions put to the judge may demonstrate the issues which had to be determined and may be used to supplement the judge's reasons if the reasons are brief and if "the adversely affected party is fully apprised of the judge's thinking from recent exchanges". The course of the hearing may also assist in understanding a judge's reasons, particularly if given orally and soon after the hearing. This must be so given the nature of the business of an inferior court dealing with numerous cases for which remarks on sentence must be given orally and as quickly and efficiently as possible. See also Mohindra v The Queen [2020] NSWCCA 340 at [37].

38. Justice Jagot’s comments in Stanley apply with particular force in the present case. The Magistrate informed the parties that she would take the two days of presentence custody into account. The parties agreed that as the s 10 threshold was not crossed, the sentence could not be backdated to achieve this outcome. For this reason, the two days of presentence custody could only be taken into account in the overall instinctive synthesis of the sentence to be imposed. This exchange occurred immediately before her Honour commenced delivering her ex tempore reasons for sentence. In view of the proximity of the exchange with the pronouncement of sentence, it may be readily inferred that the Magistrate took into account the two days of presentence custody in determining the appropriate sentence to be imposed.

39. This ground of appeal should be dismissed.

Ground (d): Manifest excess

40. The final ground of appeal alleges that the sentence imposed is manifestly excessive. The principles to be applied on such a ground of appeal are also well-established. As the Court of Appeal held in Hawker v The Queen [2020] ACTCA 40 at [14] (references omitted): The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge, or where the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons.

41. The appellant submitted that a s 17 non-conviction order is the only appropriate sentence that should be imposed because: (a) All of the appellant’s eight calls that were made in breach of the FVO were unanswered, all were made in the same short period, all were made whilst the appellant was intoxicated, and all were made shortly after the appellant was removed from the family home in the early hours of the morning; (b) The appellant pleaded guilty at the earliest opportunity; (c) The appellant had no criminal history, was of good character, and was remorseful; and, (d) A conviction would have a disproportionate effect on the victim, given she and the appellant are currently in the process of applying for permanent residency in Australia, and this application ultimately requires an assessment of character which may be adversely affected by a conviction.

42. The appellant submitted that taking into account each of the above matters, the proper conclusion is that the purposes of punishment, denunciation and deterrence have been met by the two days which the appellant had served whilst bail refused.

43. I do not accept this submission. As the Magistrate found, the offence was committed in a family violence context. Section 34B of the Crimes (Sentencing) Act is a powerful reminder of the importance of deterrence, denunciation and protection of victims and the community for offences of this nature: see also Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288 at [97] – [98].

44. Whilst there is no requirement that offending be ‘trivial’ before a non-conviction order may be imposed, it remains the case that “the ordinary consequence of a finding of guilt is the recording of a conviction”: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The purpose of recording a conviction is “a formal and solemn act”, which marks the disapproval of the offender’s wrongdoing by the court and society: see R v AB [2022] NSWCCA 3 at [39].

45. As the Magistrate found, in the present case, the appellant breached the FVO hours after it was served upon him, by making repeated calls to the victim. The fact that the offender was intoxicated when he did so does not reduce the objective seriousness of his conduct: see Hasan v The Queen [2010] VSCA 352; 31 VR 28 at [20] – [34]. Even taking into account the two days of custody served, there remained a need for denunciation and deterrence which could only be met by the recording of a conviction.

46. The appellant did not otherwise challenge the imposition of the good behaviour order, or its length.

47. It follows from the above that the sentence imposed by the Magistrate was open, and that this ground of appeal should also be dismissed.

Orders

48. For the above reasons, the following order is made: (1) The appeal is dismissed. I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: H Clift Date: 15 April 2025