APPEAL AND NEW TRIAL - In General and Right of Appeal - Appeal against sentence - Principle of parsimony - Principle explained.

Bail Act 1992 (ACT), s 49

Crimes Act 1900 (ACT), s 26

Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP

Crimes (Sentencing) Act 2005 (ACT)), ss 10(2), 33(1)

Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10

Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)

Anderson (1987) 32 A Crim R 146

Blundell v The Queen [2008] NSWCCA 63; (2008) 70 NSWLR 660

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions v Malikovski [2010] VSCA 130

Grimshaw v Mann [2013] ACTSC 189

Halden v The Queen (1983) 9 A Crim R 30

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198

Ly v The Queen [2007] NSWCCA 28

R v Bell [2005] ACTSC 123

R v J W [2010] NSWCCA 49

R v Roadman (1990) 47 A Crim R 181

R v Valentini [1980] FCA 133; (1980) 48 FLR 416

Saddler v Pavicic [2011] ACTSC 199

The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Webb v O'Sullivan [1952] SASR 65

2. The sentence imposed on Adam Beniamini on 4 September 2013 for intentionally causing damage to property on 16 March 2012 and for assault on 16 March 2012 be set aside.

1. From about 2007, Adam Beniamini, the appellant, was in a relationship with a young woman, to whom I will refer as AEL. There were two children of the relationship.

2. Ongoing conflict, however, marred the relationship, apparently caused largely by Mr Beniamini's ongoing abuse of alcohol. It appears that the relationship broke down between about October 2011 and March 2012.

3. On 23 November 2011, Mr Beniamini went to AEL's house to see the children but AEL refused to let him in. He damaged the front security door and shouted threats at AEL.

4. He was arrested in January 2012 and charged before the court with the offence of intentionally causing damage, an offence against s 403 of the Criminal Code 2002 (ACT). He was granted bail.

5. Before those proceedings could be resolved, however, he again went to AEL's house at 12:30am on 16 March 2012, banging on the window to wake her up. He broke open the door and entered the premises. He assaulted AEL. He was charged with a further offence of damaging property, with trespass on the premises contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) and common assault contrary to s 26 of the Crimes Act 1900 (ACT).

6. In circumstances that are not entirely clear, he was not charged with these offences until 16 April 2012, even though he had appeared in Court on 4 April 2012 on the earlier charge when, following his plea of not guilty, a hearing date was set for that charge. In any event, he appeared in Court on these further charges on 9 May 2012, and was granted bail.

7. Finally, on 30 November 2012, he drove into a service station at Mawson, filled the motor vehicle with 37.10 litres of premium unleaded petrol. He told the attendant that he had forgotten to bring his wallet and left his personal details on the understanding that he would return with payment within two hours, which he did not do. As a result, he was summonsed to appear in court on 22 April 2013 to answer a charge of minor theft contrary to s 321 of the Criminal Code.

8. On 1 August 2013, Mr Beniamini was remanded in custody. It is not entirely clear, on the materials before me, why that was. He had apparently not appeared earlier that day and a warrant was issued but later withdrawn. He had also failed to appear on 24 May 2013, when a warrant issued and was again withdrawn when he appeared on 5 June 2013.

9. It is also unclear why there were twenty appearances in Court between when Mr Beniamini was first charged and when he was sentenced.

10. Ultimately, Mr Beniamini pleaded guilty to all five offences and, on 28 August 2013, he was sentenced in the Magistrates Court for them.

• intentionally causing damage to property on 23 November 2011: a fine of $1,500;

• intentionally causing damage to property on 16 March 2012: three months imprisonment to commence on 1 August 2013, to take into account pre-sentence custody;

• trespassing without reasonable excuse: a fine of $500;

• assault: seventeen months imprisonment to commence on 1 September 2013;

12. A non-parole period of twelve months was set on the total period of eighteen months imprisonment.

13. On 4 September 2013, Mr Beniamini appealed against the two sentences of imprisonment including the non-parole period.

14. The sentences also constituted a breach of a good behaviour order that I had made on 9 December 2010, when I had suspended a sentence of nine months imprisonment for an offence of assault occasioning actual bodily harm committed on 7 January 2010.

15. Under Pt 3.10 of the Magistrates Court Act 1930 (ACT), this Court is given jurisdiction to hear and determine appeals from the Magistrates Court. Division 3.10.2 of that Act regulates appeals in criminal matters such as this appeal.

16. I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.

17. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.

18. Specific errors may be errors of law, errors of fact, taking into account irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find a specific error, but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal, and re-impose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal, and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust, or plainly wrong, which implies that the sentence was infected by a specific error, though unidentified.

19. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

20. Although I have briefly set out the facts of all the offences with which Mr Beniamini was charged and sentenced on 28 August 2013, only the sentences for two of the offences committed on 16 March 2012 are the subject of this appeal.

21. The facts relating to that incident are as follows.

22. By the date of the offences, the relationship between Mr Beniamini and AEL was finally and completely at an end, but Mr Beniamini was denied access to the children of his relationship with AEL, despite the fact that he was making a financial contribution to their support.

23. On the night in question, Mr Beniamini had been drinking alcohol and he was drunk. He went to AEL's house and banged on the window of the bedroom where AEL was asleep. She awoke and recognised his voice.

24. He said, "Let me in." AEL replied, "No, it's the middle of the night." He said: "Let me in, I just want to come in for five minutes." She said: "No, I know you're not going to come in just for five minutes."

25. He continued to bang on the window, demanding that AEL come outside.

26. AEL then grabbed her mobile phone and got out of bed and walked down the hallway towards the laundry. She heard continued banging on the laundry door and, as she approached it, she saw that it had cracked as a result. A few moments later, the door broke open and Mr Beniamini came in. AEL ran to the lounge room and turned to face Mr Beniamini who was behind her. He then grabbed her around the throat with one of his hands and pushed her backwards onto the couch.

27. Mr Beniamini then began to strangle AEL, saying "You need to help me". AEL felt his grip tighten and she was unable to speak. After a few moments, he released his grip and AEL said, "You can't break someone's door down and expect them to help you".

28. She walked away from him and he followed her, saying, "You need to help me, you need to help me". AEL tried on a number of occasions to walk past him, but he stopped her from doing so, making intimidating movements towards her by standing over her and throwing his arms out towards her.

29. AEL sat on the floor in the hallway in an attempt to prevent the situation from escalating and asked him "Why are you doing this?" Mr Beniamini said, "You need to shut your mouth or you'll cause me to do something bad" and repeated, "You need to help me".

30. One of AEL's daughters, however, took AEL's mobile phone, went into her room and locked the door. She called AEL's mother.

31. During this time, AEL tried without success to calm Mr Beniamini down, so she got up and walked outside to the front yard. Mr Beniamini followed her, repeating, "You need to help me".

32. A few moments later, Mr Beniamini put his hand over AEL's mouth to prevent her from screaming, but AEL broke free and screamed for help.

33. About five minutes later, AEL's mother arrived and Mr Beniamini calmed down. A short time later, a marked police car, with emergency lights flashing, arrived at the house. Seeing this, Mr Beniamini turned and ran down the street away from the police officers, who pursued him, but lost sight of him as he scaled over fences of surrounding properties.

34. AEL spoke to the police officers; she was visibly upset and showed the red marks around her neck. The police officers also inspected the damaged door, noting that the force used had dislodged the reinforced strike plate.

35. At the time, Mr Beniamini was, of course, on bail in connection with the earlier offence of damaging property, one of the bail conditions, imposed on 7 February 2012, being not to assault, threaten, harass or intimidate AEL or cause another person to do so.

36. Mr Beniamini was born thirty years ago in Canberra, the third of four children. He received a caring and loving upbringing and has positive relationships with his parents and siblings; indeed, he is a subcontractor with his father.

37. Mr Beniamini went to schools in Canberra, leaving in the middle of Year 10. He achieved satisfactory grades, but left to gain employment.

38. He initially entered an automotive spray painting apprenticeship but did not finish it as he lost interest after about two and a half years. He then worked in the building industry as a renderer.

39. He left home when he was 21 to live with his then partner with whom they had one child, now seven.

40. In 2005, he began to work with his father as a tiler, and enjoys the work.

41. His relationship with his then partner ended in about 2006, and he later entered into a relationship with AEL. They had two children, a girl now aged five and a boy aged four. As noted earlier (at [22]) this relationship has also ended.

42. As I have noted, Mr Beniamini was dealt with by me on 9 December 2010 for a charge of assault occasioning actual bodily harm. During those proceedings, I received a letter from AEL in which she described Mr Beniamini as follows:

Adam is my partner and I would like to advise that he works hard, provides well financially, he is supportive, a wonderful father and partner. Without Adam I would struggle to cope financially, since the incident in January Adam has become more responsible in his actions and commitments, he is now aware that his actions have affected not just himself.

Adam has also stopped drinking, which he realises was the cause of his inappropriate behaviour, Adam and myself have spoken about what happened and he is very sorry and remorseful.

43. Mr Beniamini tries to have contact with his first child, but she lives with her mother interstate which makes contact difficult.

44. Mr Beniamini has now entered into a further relationship with a woman he has known for about ten years. She knew his first partner. She also has children of a prior relationship.

45. Mr Beniamini started drinking alcohol when he was about fifteen, drinking up to ten to fifteen beers at a session with friends. He did not consider himself to be dependent on alcohol, but did accept that his social drinking ended in significant binges which often led to negative outcomes and to offending behaviour.

46. He experimented with cannabis as a teenager but has otherwise not used other illicit drugs.

47. His physical health is good, but he has suffered from bouts of depression which, about three years ago, required medication to manage. His mental health appears presently to be sound.

48. Mr Beniamini has a criminal history which started in 2000. It consists of twenty-five offences dealt with in fourteen court appearances. Many appear to be related to alcohol. They include five drink-driving offences, five offences of dishonesty, including two offences of burglary, four offences of violence, all, save the one for which I dealt with him, being offences of common assault. These may all be alcohol related. He has also had action taken against him on two occasions for breaching court orders.

49. Apart from these offences, his most recent offence was committed on 7 January 2010. He has not been sentenced to full-term imprisonment, though he has served imprisonment by way of periodic detention and has received suspended sentences; he has experienced periods of custody when bail has been refused.

50. These matters, largely taken from the Pre-Sentence Report received by Her Honour and Mr Beniamini's criminal record, were before Her Honour in the sentencing proceedings. Preparation of that Report had been delayed because Mr Beniamini had failed on five occasions to attend on ACT Corrective Services for its preparation and had failed to respond to numerous attempts to contact him. As noted above (at [8]) he was ultimately remanded in custody and the Report finally prepared.

51. Evidence was called from Mr Beniamini's current partner. At the time, his relationship with her had begun about twelve months previously.

52. From the experience she had had of knowing his first partner and from conversations with her, she said that she was not aware of any violence ever being perpetrated on his first partner. His partner also said that she had never experienced any violence or physical or mental abuse committed by him towards her or her children. Indeed, she said that if that happened, she would end the relationship. She had also not seen any similar behaviour during the currency of his relationship with AEL. However, she was of the opinion that the relationship was not a good one: they did not bring out the best in each other. She had discussed the offences with him.

53. Mr Beniamini's current partner also stated that they now have access to his two children from his relationship with AEL. They have them at their home every fortnight at the weekends. Sometimes they have them over for more than just the weekend. Mr Beniamini now has, she said, a civil relationship with AEL; he makes a financial contribution to their support. No personal protection orders have been made on the application of AEL.

54. Mr Beniamini's partner was asked about his alcohol consumption. She said that, apart from one or two social drinks, he no longer drinks alcohol. He does not come home intoxicated, nor does he drink at home.

55. In submissions on sentence, Mr Beniamini's counsel, Mr S Whybrow, who also appeared for him on the appeal, acknowledged that there would be a need to commit Mr Beniamini to this Court to be dealt with for the breach of the good behaviour order. He submitted that the learned Magistrate had to take into account Mr Beniamini's criminal history and the aggravating feature that the offences were committed while Mr Beniamini was on conditional liberty, at all times under the good behaviour order I had imposed and then, in relation to the offences committed in 2012, while on bail. That, of course, he submitted, cannot result in a sentence more severe than is called for by the crime committed. He also referred to the principles relating to a breach of conditional liberty, especially when that occurs by committing a different or less severe offence.

56. He submitted that the breakdown in the relationship with AEL had been subsequently managed in a responsible way without the need for domestic violence orders, which he described as "AFP orders", or Family Court orders. This had led to Mr Beniamini paying financial support for the children, which started even before AEL permitted him access to the children.

57. Mr Whybrow submitted that Mr Beniamini now had his alcohol abuse under control. He acknowledged that Mr Beniamini had not acted in a sensible way and had engaged in "a lot of terrible conduct", though it did not involve more serious forms of assault such as punching, or trashing the house. He pointed to the offer Mr Beniamini had made to repay for the damage that he had caused to the property and that, as soon as that cost was quantified, it would be paid.

58. Mr Whybrow acknowledged the seriousness of Mr Beniamini grabbing AEL by the throat, but again pointed out that there was no dragging by the hair or other "condign" (I assume he meant very serious or severe) violence. He accepted that it was inappropriate conduct and, no doubt, very frightening for AEL. It is, however, difficult not to see strangling as serious violence.

59. He relied on the fact that, since the offences in November 2011 and March 2012, the parties had not been in further conflict. Both Mr Beniamini and AEL have each re-partnered and there are no problems with those arrangements; so often problems do occur in such circumstances.

60. He also submitted that Mr Beniamini's non-compliance with the arrangements for the preparation of the Pre-Sentence Report and his bail breaches could not aggravate the offences. He submitted that he had been assessed as suitable for periodic detention and that he had performed it satisfactorily in the past.

61. Mr A Williamson, who appeared for the prosecution, submitted, quite correctly, that the most serious offences were those committed on 16 March 2012, being the offences (other than the trespass offence) the subject of the appeal. He submitted that the assault was "towards the upper end of the spectrum of objective seriousness" because of the following aggravating features:

• Mr Beniamini was on conditional liberty at the time, in two respects: the breach of the good behaviour order I had made, and the breach of bail;

• the offences included one of personal violence, which was the nature of the offence for which I made the good behaviour order;

• there were children in the house at the time, and they apparently witnessed the violence;

• the violence involved grabbing AEL by the throat, a vulnerable part of the body, and later prevented her from screaming;

• his intoxication, which made the offence more frightening because she could not reason with him.

62. He submitted that nothing but a sentence of imprisonment would be appropriate, given the need for general and specific deterrence, denunciation and the need to impose condign, that is well deserved, punishment.

63. He further submitted that there were factors tending against suspension of the sentence or setting a period of periodic detention. His criminal record denied him leniency and indicated that retribution, deterrence and protection of society made a more severe penalty warranted.

64. Mr Williamson acknowledged that this was the first domestic violence offence committed by Mr Beniamini but noted that he had a history of personal violence offences.

65. He submitted that combination sentences had, in the past, failed to deter Mr Beniamini, and that he had also had the benefit of community based orders directed towards his rehabilitation. His compliance with community based orders, including bail, had not been particularly good and on two occasions he had been dealt with for breach of such orders and once for breach of bail.

66. He also submitted that there should be a level of accumulation so as to avoid what has been suggested as "some kind of discount for multiple offending".

67. There were two errors in the submissions. In the first place, Mr Williamson submitted that Mr Beniamini had dragged AEL out to the front of the house. That is not in accordance with the Statement of Facts where, it is stated, that she "got up from the floor, walked out of the house and sat down outside in the front yard". It does later state that Mr Beniamini "began dragging her back inside the house", but that she broke free and screamed for help. Mr Whybrow pointed that out in reply.

68. Mr Williamson also submitted that Mr Beniamini had committed five earlier offences of personal violence but it was, in fact, four, three offences of common assault and one of assault occasioning actual bodily harm.

69. In reply, Mr Whybrow pointed to the plea of guilty which needed to be taken into account, though it was not altogether clear when it was entered, but apparently not at an early stage.

70. Her Honour then proceeded to sentence. Her Honour suggested that Mr Beniamini was his "own worst enemy", perhaps because he likes to ignore things, such as not attending appointments when he should.

71. Her Honour emphasised that Mr Beniamini was on conditional liberty when he offended on 16 March 2012, noting that it is important that the community have confidence that people given the privilege of such liberty will take advantage of it.

72. Her Honour stated that she was not punishing Mr Beniamini for the breach of the good behaviour order I had imposed and would ensure that he was not punished twice. Her Honour then said

it is clear that the offences I am dealing with you for are more serious because you were abusing that conditional liberty ... that was ... apart from the conduct itself, they are factors extraneous to them but relevant, that I have to take into account.

73. As to the events on 16 March 2012, Her Honour considered Mr Beniamini should be given the benefit of "an early-ish plea".

74. Her Honour considered it was aggravating that the offence occurred in AEL's home, that it was an unpleasant incident that would have terrified AEL. It was also a crime of family violence. Her Honour was told that Mr Beniamini was intoxicated, though she could not make that finding on the material before her. Her Honour accepted that Mr Beniamini would not have gone to the premises deliberately to distress them. Her Honour was concerned about the effect of this behaviour on the children, though she accepted that he was a good father.

75. Her Honour noted that the incident occurred over some extended period of time and during it, he had tried to shift the onus onto AEL to prevent any violence.

76. Her Honour noted that the charge was one of assault and not assault occasioning actual bodily harm, though she found that the evidence suggested the use of significant force. Her Honour accepted that, as conceded by Mr Whybrow, a term of imprisonment was appropriate. Her Honour agreed with the submissions that the seriousness was at the upper end of the range for such offences.

77. Her Honour, referred to the aggravating features mentioned by Mr Williamson, save for the intoxication, though Her Honour agreed that, if present in this case, it was likely an aggravating feature.

78. Her Honour accepted that there were no earlier offences of domestic violence, but his record was a bad one. Her Honour also commented that he "picks and chooses when he will go to Court, whether he will comply with bail orders, pre-sentence reports".

79. Her Honour considered whether any of the term of imprisonment could be served by periodic detention or suspended. Her Honour considered that this depended on whether Mr Beniamini was at a cross-roads. Her Honour noted that Mr Beniamini's partner had been in his life for twelve months but in that time, he had "not come to Court when [he was] meant to have ... breached [his] bail and [he] did not turn up at all for the pre-sentence report". Her Honour concluded

... while I am sure she will work are [sic] hardest, I am not - there has not been such a change in your behaviour.

80. Thus, Her Honour had no confidence that he would abide by a community based sentencing order. Her Honour then considered that she had to denounce his conduct and that this was one of the primary sentencing objectives, "making it clear to you and other men who ... resort to violence ... that it is unacceptable".

81. Her Honour also expressly referred to deterrence, both specific and general, and protection of the community. Her Honour also considered that when Mr Beniamini had been sentenced that may suffice in relation to the breach of the good behaviour order for which I will have to deal with him, a difficult approach if the courts are to avoid double punishment.

82. Her Honour then referred to the fine she had imposed and, as would be very proper, proceeded under s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT) holding that, while the fines were "hefty" Her Honour did not want him "to come out and have fines to pay". Her Honour commented that "he has got a little family to support".

83. The sentences to which I have referred above (at [11]) were then imposed.

84. As noted above (at [13]), Mr Beniamini filed a Notice of Appeal, thus commencing his appeal on 4 September 2013.

(i) The learned Magistrate erred in that she imposed a sentence that is manifestly excessive;

(ii) Further, and in the alternative, Her Honour erred in that she imposed a sentence that is unreasonable or plainly unjust in the circumstances;

(iii) Further, and in the alternative, Her Honour erred in failing to impose a sentence that properly reflects the principles of parsimony or minimality;

(iv) Further, and in the alternative, Her Honour erred in that she failed to give adequate weight to the Appellant's subjective circumstances.

86. It seems to me that the real ground here is the first one, that the sentence was manifestly excessive and that, at least, the third and fourth grounds were particulars of the first. It may be that the second ground stands alone, though a manifestly excessive sentence would be unreasonable or plainly unjust, as appears from what was said by Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; [6].

87. In relation to the ground that a sentence was manifestly inadequate or excessive the Court of Appeal in R v TW (2011) 6 ACTLR 18 at 27-8; [59]-[61]; 38-9; [119]-[126]

Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called 'the collective wisdom of the judges': per Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 460).

In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]):

1. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
   1. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
   2. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

1. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

1. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

1. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.

88. The so-called principle of parsimony can be traced to a decision of Napier CJ in Webb v O'Sullivan [1952] SASR 65 where His Honour said (at 66):

The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.

89. A similar approach was taken by the Federal Court of Australia in R v Valentini [1980] FCA 133; (1980) 48 FLR 416 at 420:

The task of a sentencing judge is not an easy one. He is invested with a discretion which entails the balancing of the often competing alternatives of sentencing. It has been said many times that the dominant theme in sentencing is to provide protection to society. To achieve this, the sentencing judge must balance retribution - in the sense of the infliction of a just punishment to express the moral outrage of the community: deterrence - of the particular offender and others in the community who may consider similar action: and rehabilitation - ensuring that the sentence imposed is consistent, if possible, with the offender's returning to society as a contributing member. This delicate process is often complicated by the need to have regard for a uniform and national approach to sentencing, 'a consistent correlation', while looking to society - with whose moral outrage and protection the judge is immediately concerned and the individual offender himself. The judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purposes of sentencing taking care that he punishes only for the crime or crimes before him.

We would refer to the judgment of Brennan J in Channon v The Queen where His Honour cited R v Geddes, R v Goodrich and R v Cuthbert. There are many other cases attempting to analyse the task involved and debate has ranged constantly over the field of sentencing aims; whether punishment deters, whether 'retribution' is a legitimate aim, whether rehabilitation should be the primary concern. But it is the interaction of the facts with the perception of societary circumstances that in each case provides the sentence which the judge considers will best protect and reassure society.

(Citations omitted).

90. If this is regarded as a principle, the breach of which is an error, there are differences in the approach that courts have taken.

91. In New South Wales, the Court of Criminal Appeal has been cautious in its approach to any such principle, despite its promulgation by Adams J in cases such as Ly v The Queen [2007] NSWCCA 28 at [10].

92. The argument is, in part, semantic for it depends upon the meaning of "minimum consistent with a due regard for the public interest". If one accepts, as indeed one must, that there is a range of sentences that would still be a proper sentence to be imposed on an offender for a particular offence and that a sentencer is permitted to impose a sentence within that range, then the principle is put into a context. The Court is, as was said in R v J W [2010] NSWCCA 49 at [180], permitted to impose a sentence at the bottom of the permissible range but is not required, at the risk of appellable error, to do so. Thus, the Court has said in Blundell v The Queen [2008] NSWCCA 63; (2008) 70 NSWLR 660 at 665; [39], that

Where a sentencing judge imposes a sentence within that range, it will not be held to be erroneous, notwithstanding that another judge might have selected a different sentence. That cannot stand with the proposition, said to be 'fundamental', that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing should be that which is imposed. The two simply cannot stand together.

93. If, however, the principle is rather a recognition of matters such the basic principles of proportionality, that a sentence should never exceed that what is proportionate to the gravity of the offence (Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354), and the statutory requirements such as that imprisonment is the sentence of last resort (as in s 10(2) of the Crimes (Sentencing) Act 2005 (ACT)), then there can be no real complaint about such a principle.

94. The offence of assault is a serious one. To so describe it, however, does not justify any sentence, no matter how severe. The sentence, even for serious offences, must be proportionate to the offence and the circumstances of the offender.

95. Here, the serious objective features of the offence were: it was committed late at night in AEL's home; it was an offence within a context of family violence; the offence was a protracted one consisting of Mr Beniamini grabbing AEL by the throat, pushing her backwards onto the couch, "strangling" her, a threat of unspecified, but likely, personal violence, Mr Beniamini putting his hand over AEL's mouth and his beginning to drag her inside the house.

96. The offence was aggravated by the fact that Mr Beniamini was on conditional liberty at the time, subject to both a good behaviour order made when a prison sentence for an offence of personal violence was suspended and on bail for an offence of damaging property at the same premises. This aggravates the offence: R v Roadman (1990) 47 A Crim R 181 at 184.

97. It was also clear that the violence was perpetrated in the presence of children, which increases the seriousness of the offence, as pointed out by Burns J in Saddler v Pavicic [2011] ACTSC 199 at [17]. See also R v Bell [2005] ACTSC 123 at [30].

98. Mr Beniamini is also to be denied leniency in the light of the fact that he had a significant criminal history, including four prior offences of personal violence, though they were not offences of family violence.

99. Again, it must be noted that such seriousness does not mean that a sentence of any severity is permissible; the sentence must still be proportionate and balance the factors that are mitigatory as well.

100. Thus, although, for reasons that can be guessed at but which were not articulated, the sentence was not imposed until nearly eighteen months after the offences, during which time, Mr Beniamini had made no further inappropriate contact with AEL; indeed, he had managed to participate in a resolution of the questions of access to the children, who regularly stay at his house now, and their financial support, without the necessity of the often stressful intervention of the Family Court of Australia or the Federal Circuit Court of Australia and he was, until imprisonment meant he lost the capacity to earn funds to do so, still financially supporting them.

101. He had, on the sworn evidence of Ms Dillon, stopped drinking, which was said to be a major factor in his offending.

102. While Mr Beniamini has a history of offences of personal violence, this was the first offence of violence in a family context and, again, the sworn evidence was that he had no history of violence within such relationships. In addition, of course, while his history may deny him the leniency that an absence of such history would permit, he could not be further punished for the offences appearing on his criminal record: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477. The last offence of personal violence had been committed in January 2010, over two years before this offence.

103. Relevant, too, were the facts that the denial of access to his children at the time of the offence was arbitrary, and not under any court order. That this issue had been sensibly resolved, and that both AEL and Mr Beniamini had entered into new stable relationships is relevant. Mr Beniamini was, at the time of sentencing, employed and using his wages, in part, to support his children.

104. Mr Beniamini was remorseful and showed insight into his actions. He had, as I have noted, addressed, to a large extent, the issues that caused or contributed to his offending. He had, thus, made good use of the delay in sentencing. That justified a reduction in sentence, as held by Nettle JA in Director of Public Prosecutions v Malikovski [2010] VSCA 130 at [38]- [39].

105. Of some concern is the reference that the learned Magistrate made to Mr Beniamini's failures to appear in answer to his bail undertakings and his failure to comply with requests to attend on an officer of ACT Corrective Services for the purposes of preparing a Pre-Sentence Report.

106. The failures to appear in answer to his bail undertaking must not sound in punishment for the current offence. There is a separate offence (s 49 of the Bail Act 1992 (ACT)); to impose a penalty for a separate offence not charged would offend the principles clearly articulated by the High Court in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389-392. I have a concern that the length of the sentence imposed does suggest that it was influenced by these failures.

107. It was, however, permissible and, indeed, appropriate to take these failures and the lack of co-operation with ACT Corrective Services in preparation of the Pre-Sentence Report into account for the purposes of assessing whether Mr Beniamini would be likely to comply with the obligations of a community based sentence.

108. It was urged on his behalf that any conceded sentence of imprisonment would be served by periodic detention. He had served imprisonment by periodic detention before, and he complied with it. In any event, a failure to comply leads, almost inevitably, to full-time custody.

109. While this permits an offender to spend time in the community, it is not an easy option. The punitive aspects were well-described by Kirby P in Anderson (1987) 32 A Crim R 146 at 154-5. In this jurisdiction, it has also the punitive aspect that two failures to attend result in automatic cancellation of the order, and full-time custody for the balance of the term of imprisonment. See Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198.

110. The benefit is, of course, that Mr Beniamini could continue to work and earn wages with which he could support his children. That is a very relevant factor required under s 33(1)(o) of the Crimes (Sentencing) Act to be taken into account.

111. Given the sanction for non-compliance with periodic detention, it is not clear why this option was apparently not seriously considered, for not only had he previously performed periodic detention satisfactorily, but there was little of the kind of obligation associated with such a sentence that was of the kind that his bail failures and non-co-operation with ACT Corrective Services would represent.

112. There was, in Her Honour's consideration of this issue, no real distinction between a suspended sentence which required a good behaviour order to be made and periodic detention. I consider that there is a significant difference and that separate considerations, as well as some similar ones, apply.

113. It must be accepted that in compliance with the processes of the criminal justice system (bail, preparation of the Pre-Sentence Report), Mr Beniamini had made no efforts. The real issue, however, was his criminal behaviour, and the factors that contributed to, or caused, it. On these matters, there was definite and significant improvement which Mr Beniamini was entitled to have taken into account on his behalf.

114. Reference was also made to what I had said in Grimshaw v Mann [2013] ACTSC 189, where the appellant in that case had pleaded guilty to an assault on a woman with whom he had been in a relationship. That was also a case which featured an argument by the male ex-partner about access to his children which had been denied by the female ex-partner.

115. There was in that case, however, an element of stalking and three punches by the appellant to the face of the victim. The appellant in that case had a significant criminal history but only two offences for personal violence, though one was for assault occasioning actual bodily harm.

116. The appellant in that case had been sentenced to ten months imprisonment, of which three months were to be served in full-time custody, three months by periodic detention and the balance suspended.

117. I referred in that decision to the statistics kept by the Judicial Commission of New South Wales on the offence of common assault. I said

1. I have had access to the statistics provided by the Judicial Commission of New South Wales for the offence of common assault. They show that of 28,669 cases, 6% were sentenced to imprisonment and, of these, 19% received a sentence of imprisonment of ten months or more. Nine offenders were sentenced to more than twelve months imprisonment and none to more than eighteen months imprisonment. Even on a plea of guilty, only 17% of those sentenced to imprisonment were sentenced to more than nine months imprisonment. I am aware that these are statistics from another jurisdiction, though one with which we share a common heritage in criminal law. I am also aware of the caution expressed by Spigelman CJ, with whom Sully and Ireland JJ agreed, in R v Bloomfield (1998) 44 NSWLR 734 at 739 about the use of such statistics.
2. It appears to me, however, that, in the light of the description by the learned Magistrate of the objective seriousness of the offence which was in the "upper-middle range", the penalty was somewhat higher than that, having regard to those statistics. It is, however, difficult to see whether those statistics show combination sentences, and whether, for example, partially suspended sentences are shown. There is, of course, no provision for periodic detention in New South Wales.
3. Nevertheless, a sentence, even suspended, is a sentence of imprisonment, and a decision must be made as to the fact of imprisonment and the length of the period of imprisonment in those circumstances. There is no doubt that the period of periodic detention and the suspension of 40% of the sentence is a significant amelioration of the ten month period of full time detention that was prima facie imposed, but the whole period is truly a sentence of imprisonment and, potentially, actually to be served as such.

118. There are differences in the two cases. Mr Beniamini's offence was on the whole more serious and his antecedents less mitigatory. In addition, his plea of guilty was not made as early.

119. Nevertheless, it is clear, from the statistics to which I have referred, that a sentence of more than eighteen months imprisonment for an offence of common assault must be a very serious version of the offence. That Her Honour started her calculation of the sentence at twenty months imprisonment and reduced it for the plea of guilty shows she must have considered it almost at the worst category of the offence. I do not consider it reaches that level of seriousness.

120. The offence of intentionally damaging property was also subject of the appeal. Mr Beniamini was sentenced for that offence to three months' imprisonment, one month of which was cumulative on the sentence of imprisonment for the offence of assault.

121. The offence was constituted by the breaking of the door to AEL's house so that he could enter uninvited. That he entered uninvited was another charged offence of trespass.

122. The offence of intentionally damaging property attracts a maximum penalty of 1000 penalty units; that is a fine of $110,000, or imprisonment for 10 years, or both. It is, thus, a very serious offence.

123. Nevertheless, the damage caused is central to the determination of the offence as Murphy J, in Halden v The Queen (1983) 9 A Crim R 30, at 38-9, pointed out

It is a crime which may be committed in a very wide range of circumstances. The property damages may vary from a book to a mansion, and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.

The penalty may also vary according to the circumstances in which the crime is committed, and the fact that it was here committed with gunshots at night would clearly be material.

124. Here, the door to the house was smashed in order to gain entry. There was no information on the monetary value of the damage, such as the cost of repair but while it would be significant, it would not be substantial.

125. The circumstances were serious, however, because it was a prelude to a home invasion and it was a repeat offence for which Mr Beniamini was on bail at the same time.

126. Thus, a sentence of imprisonment was not inappropriate and, having regard to the maximum, the term was not unreasonable or unjust. I do not consider that this sentence in isolation was manifestly excessive.

127. Nevertheless, the whole sentence must be considered and the sentence for the assault was, as I have found, manifestly excessive.

128. Accordingly, the appeal must be upheld and Mr Beniamini must be re-sentenced. I shall do so.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of His Honour, Justice Refshauge.

Solicitor for the appellant: Ben Aulich & Associates

Solicitor for the respondent: ACT Director of Public Prosecutions