Bennett v Daley [2021] ACTSC 159

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Bennett v Daley

Citation: [2021] ACTSC 159

Hearing Date: 19 July 2021

Decision Date: 4 August 2021

Before: Burns J

Decision: See [57]–[59]

Catchwords: APPEAL – MAGISTRATE COURT APPEAL – Crown appeal against sentence – respondent convicted of two counts common assault – non-conviction orders imposed – whether Magistrate made an assessment of the objective seriousness of the offences – where offences committed while respondent under self-induced drug intoxication – whether Magistrate misapplied principle in R v MT [2020] ACTSC 339 – whether self-induced drug intoxication mitigating, aggravating or neutral factor – R v Gagalowicz [2005] NSWCCA 452 distinguished – whether Magistrate erred in taking into account consequences emanating from a conviction that were not sufficiently supported by evidence – whether sentence manifestly inadequate – whether cogent or compelling circumstances demonstrated reason to deviate from recording a conviction – no cogent evidence that respondent’s prospects of rehabilitation would be jeopardised by imposition of convictions – re-sentencing

Legislation Cited: Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) ss 7, 17 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA) Evidence Act 2011 (ACT) Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Balthazaar v The Queen [2012] ACTCA 26 Beniamini v Craig [2017] ACTSC 30 Bialecki v Rollings [2020] ACTSC 344 CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346 Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 Forster-Jones v The Queen [2020] ACTCA 31 Imbornone v The Queen [2017] NSWCCA 144 Kirby v Ali [2021] ACTSC 95 Lutz v JK [2016] ACTSC 200; 310 FLR 392 Martin v The Queen [2007] VSCA 291; 20 VR 14 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 Proud v Sladic [2014] ACTCA 26 R v Avery [2018] ACTCA 57 R v BC (No 4) [2021] ACTSC 119 R v Coleman (1990) 47 A Crim R 306 R v Freeman-Quay (No 3) [2015] ACTSC 284 R v Gagalowicz [2005] NSWCCA 452 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Kilic [2016] HCA 48; 259 CLR 256 R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 R v Miller [2019] ACTCA 25 R v MT [2020] ACTSC 339 R v MT [2014] ACTSC 162 R v Ngata [2020] ACTSC 9 R v Smith [2021] ACTSC 114 R v Stacker [2020] ACTCA 34 R v Taylor [2015] ACTSC 43 Stewart v The Queen [2012] NSWCCA 183 Wood v The Queen [2019] NSWCCA 309 ZZ v The Queen [2013] NSWCCA 83 Parties: Robert Bennett (Appellant) Lorenz Martin Salunga Daley (Respondent)

Representation: Counsel A Williamson (Appellant) M Kukulies-Smith (Respondent)

Solicitors ACT Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent)

File Number: SCA 11 of 2021

Decision under appeal: Court: ACT Magistrates Court Before: Special Magistrate Campbell Date of Decision: 5 March 2021 Case Title: Bennett v Daley Court File Numbers: CC 248 of 2021; CC 249 of 2021

BURNS J:

1. The respondent, Lorenz Martin Daley, entered pleas of guilty in the ACT Magistrates Court on 5 March 2021 to two charges of common assault contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty applicable to each such offence was 2 years’ imprisonment. The Magistrate hearing the matter dismissed each charge without conviction pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The informant in the proceedings before the Magistrate has appealed from the sentences imposed. The grounds of appeal are:

(a) the Magistrate erred in failing to assess the objective seriousness of the offending;

(b) the Magistrate erred in treating the respondent’s self-induced psychosis as a mitigatory factor misapplying R v MT [2020] ACTSC 339;

(c) the Magistrate erred in taking into account consequences emanating from a conviction that were not sufficiently supported by evidence;

(d) the sentences imposed are manifestly inadequate.

2. The appellant seeks orders that the sentences imposed by the Magistrate be set aside and that the respondent be re-sentenced by this Court.

The proceeding before the Magistrate

3. The respondent was represented by an experienced legal practitioner in the hearing before the Magistrate. A Statement of Facts was tendered without objection which stated that at about 8:45pm on 31 December 2020, the victims were driving on a street in Gowrie in the Australian Capital Territory. They heard a male voice screaming at them and observed the respondent walk towards their vehicle. The respondent was not wearing a shirt and appeared to be in a very energetic and aggressive state. The male victim, who I will refer to as DJ, observed the respondent’s pupils to be extremely dilated. The respondent opened the front passenger door where DJ was seated. DJ said to the respondent, “what are you doing mate?” DJ observed that the respondent could not communicate very well and appeared to be confused. DJ tried to reason with the respondent and told him to go back inside his house. The respondent said words to the effect of, “get out of the car, cunt”. The respondent then rushed around the car to where the female victim, who I will refer to as NM, was seated in the driver’s seat. The respondent opened the driver’s door and grabbed NM by the arm and tried to pull her out of the car. She felt pain in her right arm. DJ said to the respondent, “what are you doing? That’s a woman!”

4. DJ took his seatbelt off, got out of the vehicle, ran around to the driver’s side and pushed the respondent out of the way while repeating, “it’s a woman”. The respondent stopped and looked at DJ and said, “look at me, I’m a stallion”. The respondent shaped up to DJ in a “boxing stance” with both fists balled. The respondent then punched DJ to the face approximately three times in the right eyebrow area. DJ felt immediate pain. DJ attempted to shield himself with his arms as the respondent kept trying to punch him. NM got out of the vehicle and attempted to push the respondent off DJ while screaming, “Stop! Stop! Stop!” The respondent then turned his focus towards NM and threw a punch at her face. She was able to move out of the way, avoiding the full force of the punch but the respondent’s fist still hit her chin. The respondent then punched NM to her chest with such force that it pushed her back and caused her to stumble. NM felt pain.

5. At this time, the respondent’s brother and mother came out of the house nearby and were screaming and yelling at the respondent. DJ screamed at the respondent to get back inside his house as he had hit a woman, and the respondent appeared to “snap out of” his aggressive state and said, “I’m sorry, I’ll back off”. The respondent’s mood then changed quickly, and he again shaped up to DJ in a boxing stance and started to pace back and forth. Fearing that the respondent was going to assault them again, the victims got back in their car and drove up the street and called police.

6. Police arrived at the vicinity of the respondent’s home at about 9:00pm. The respondent was in a neighbour’s house, being calmed down by a nurse who was one of the residents of that house. The respondent told police that he had taken one “tab” of Lysergic acid diethylamide (LSD), that he had never taken LSD before and that he was having a “bad trip”. The respondent was arrested and conveyed to the ACT Watch House where he was lodged in custody. He was not offered the opportunity to participate in a record of conversation due to his intoxication.

(a) his client was drug affected at the time of this incident;

(b) he had not previously used LSD and was not aware of the effects that the drug would have on him;

(c) that the respondent has continuing family support;

(d) his client is remorseful for his actions;

(e) the respondent was a young man at the time of the offences;

(f) the respondent is a person of previous good character;

(g) while it could not be stated conclusively that a conviction for the offences would preclude him from achieving his ambitions in boxing and in retaining his employment, there was an unquantifiable risk that it may have some effect.

11. Specifically regarding the respondent’s drug use and the way in which it may be relevant to sentencing for the offences, the respondent’s legal practitioner referred the Magistrate to the decision of Elkaim J in R v MT [2020] ACTSC 339 (MT). It is convenient at this point to say something about that decision. The offender in that matter pleaded guilty to multiple offences including murder, intentionally inflicting grievous bodily harm, and assault occasioning actual bodily harm. At the time of the events leading to the charges, the offender was drug affected, including affected by the use of LSD, to the extent that Elkaim J concluded that he was in the midst of a drug induced psychosis. His Honour referred to the decision of the Court of Appeal of Victoria in Martin v The Queen [2007] VSCA 291; 20 VR 14 (Martin):

19 We respectfully agree with his Honour’s conclusion that, in the circumstances of this case, the applicant’s moral culpability is not reduced by reason of his psychotic state. We would not, however, endorse the general proposition which underpins this conclusion – that psychosis (or other mental illness) which is drug induced can never be a mitigating factor because it is the result of the offender’s own (illegal) act. 20 Cases can be imagined where the offender’s psychotic state is drug-induced but is nevertheless treated as lessening the offender’s culpability. For example, the offender might have had no awareness – because of a lack of prior knowledge or experience – that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. Again – as in the case of Sebalj – the psychosis might occur in the course of the offender’s attempts to withdraw from the use of the drug which was, nevertheless, the cause of the psychosis. In Sebalj, the drug-induced psychosis was seen as substantially reducing the offender’s level of culpability for what he did while under the influence of paranoid delusions. 21 As these examples illustrate, the critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. There is an obvious parallel in this respect with sentencing for offences committed while under the influence of alcohol, where the concept of “reckless intoxication” has been developed. 22 One of the leading authorities is Coleman, in which Hunt CJ at CL said: The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication [ie at the time of the offending] would therefore be relevant in determining the degree of deliberation involved in the offender’s breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. … 30 Voluntary ingestion of drugs should be approached no differently from intoxication, in our view. The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences. (Citations omitted).

12. Elkaim J referred to the decision of the New South Wales Court of Criminal Appeal in R v Gagalowicz [2005] NSWCCA 452 (Gagalowicz) where the Court upheld a Crown appeal against sentence. The Court concluded that the trial judge had treated the offender’s use of drugs as a mitigating factor. The Court said, at [36]:

We accept that his Honour was entitled to find that, notwithstanding the respondent was aware that his use of amphetamine could result in psychosis, that he did not appreciate that it might lead to an act of violence to any person. But such a finding was not mitigatory of the respondent’s culpability for the killing. Had the respondent a realisation that one of the effects of his use of drugs might have been that he would act violently towards some other person, this would have been a matter of serious aggravation.

13. In MT, Elkaim J found that there was no basis on which he could conclude that MT knew, or had regarded as a possibility, that his use of LSD would induce the psychosis from which he suffered at the time that he committed the crime of murder. His Honour concluded that the use of LSD by MT was neither an aggravating factor nor a mitigatory factor in the particular circumstances of that case.

14. In her submissions to the Magistrate, the prosecutor emphasised the following matters:

(a) the maximum penalty for each offence is two years’ imprisonment;

(b) the respondent engaged in a significant level of violence towards two members of the public who were previously unknown to him;

(c) one of the victims was a woman;

(d) the offending was neither momentary nor reflexive;

(e) the respondent continued with his attacks despite being told to stop by DJ;

(f) the respondent struck DJ to his face, a vulnerable area of the body;

(g) the respondent was entitled to a degree of leniency because he had no prior convictions;

(h) the respondent’s consumption of the LSD was voluntary;

(i) the respondent’s pleas of guilty were early pleas.

15. In his submissions, the legal practitioner for the respondent suggested that the Magistrate could exercise her Honour’s discretion to proceed without recording a conviction pursuant to s 17 of the Sentencing Act, particularly taking into account the respondent’s intoxication through the use of LSD. The prosecutor opposed that submission on the basis that such a disposition would not give adequate weight to the harm suffered by the victims and the need for general deterrence.

16. The Magistrate commenced her Honour’s sentencing remarks immediately after hearing submissions from the parties. The Magistrate described in adequate detail the facts of the offending and the evidence relating to the respondent’s subjective features. The Magistrate accepted that the respondent felt shame and embarrassment about his behaviour, and had displayed victim empathy. The Magistrate further accepted that the respondent was remorseful.

17. The Magistrate stated that voluntary drug use is not normally a mitigatory factor in sentencing for criminal offences. The Magistrate then went on to say that her Honour accepted the respondent’s submissions, and referred to the respondent’s reference to the decision in MT. The Magistrate then went on to say:

I do accept in this case that it was the first time that [the respondent] did, in fact, take drugs. And I do accept and I find that he lacked the full knowledge as to how he himself would react to the taking of LSD. Being a young person he no doubt did not expect that type of reaction that he had. So, it is a matter where I need to balance those two issues taking the victims’ harm as well as balancing it against that fact about his lack of foreknowledge.

18. The Magistrate then went on to say:

This was not anything intentional and also I take into account what is his good character and that’s been attested to by many people. There are considerable consequences for [the respondent] that are likely to flow from a conviction given he is a person who works with children, well respected in his mentoring role with children as well is [sic] a possibility of further travel and success with his boxing career. He’s a person who clearly makes a positive contribution to the community and he is only 20 years of age and I would expect that he will continue to do so. Imposing a conviction may have some impact on his able [sic] to engage and continue engage with the community to the level that he has been doing. I am satisfied that this is – that [the respondent] has well and truly learnt his lesson and that he will – he’s unlikely to reoffend. And so in those circumstances, specific deterrence does not play much of a role in regards to this sentencing exercise. Taking into account all of those considerations I have – I am of the view that I will exercise my discretion pursuant to section 17 and not impose a conviction.

The appellant’s submissions on appeal

19. With respect to the first ground of appeal, the appellant submitted that a fundamental part of the sentencing process is an assessment of the objective seriousness of an offence: R v Kilic [2016] HCA 48; 253 CLR 256 at [19]. The appellant then referred me to the decision of the ACT Court of Appeal in Forster-Jones v The Queen [2020] ACTCA 31, where the Court said at [29] – [30]:

Assessment of the objective gravity of any offence is a fundamental part of determining the appropriate sentence for that offence: see eg R v Cage [2006] NSWCCA 304 at [17], R v Campbell [2014] NSWCCA 102 at [27] and R v Van Ryn [2016] NSWCCA 1 (Van Ryn) at [135]. Not only must sentencing judges make such an assessment, but it must be apparent from their sentencing judgements that that is what they have done: see eg Van Ryn at [141]. A failure to do so will mean that the sentencing process has miscarried. It is not enough to simply recite the facts on which any particular count is based: Van Ryn at [137].

20. The appellant submitted that the Magistrate had simply summarised the facts without saying anything about the objective seriousness of the offences, or the features of the offending that would inform an assessment of the objective seriousness.

21. Turning to the second ground of appeal, the appellant submitted that the Magistrate had treated the respondent’s use of LSD as a mitigating circumstance, whereas it should have been treated as a neutral matter based upon the decision of Elkaim J in MT. The appellant further submitted that the respondent’s assertion to the Magistrate by his legal practitioner that he was a first time drug-user who did not foresee the effect that LSD would have on him was an untested, self-serving statement that should have been afforded little weight: Imbornone v The Queen [2017] NSWCCA 144 at [57]; R v Smith [2021] ACTSC 114 at [44]; R v BC (No 4) [2021] ACTSC 119 at [59].

22. In any event, even if it were accepted that the respondent did not foresee the effect that his illicit drug use would have on him, the appellant submitted that the decision in MT did not support the use of that evidence as mitigating.

23. With respect to the third ground of appeal, the appellant submitted that the Magistrate had made a finding that it was likely that “considerable consequences” for the respondent would eventuate if convictions were recorded. The appellant submitted that this was a finding which was not open to the Magistrate on the evidence. The appellant submitted that the only evidence in relation to the possibility of consequences flowing from the recording of a conviction was found in a character reference tendered on behalf of the respondent. The author of this reference described himself in the document as a “business owner and professional athlete”. He stated:

I believe a conviction of this nature will affect all three of his jobs as he needs a working with vulnerable peoples [sic]. [The respondent] also has great ability as a boxer and in my professional opinion he is very likely to make the Australian team and potentially compete in Olympics and Commonwealth Games. A conviction could hinder his travel opportunities. Ultimately if Lorenz is convicted it will stop his coaching with youth.

24. The appellant submitted that the evidence before the Magistrate rose no higher than to suggest there might be some unspecified, detrimental consequences for the respondent if convictions were recorded, and could not support a finding that such consequences were likely to occur.

25. Turning into the last ground of appeal, the appellant submitted that the ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v The Queen [2012] ACTCA 26 at [53]; Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42] (Proud v Sladic). The appellant submitted that the sentences imposed by the Magistrate were “so plainly short of the appropriate sentences as to bespeak error of principle” (Lutz v JK [2016] ACTSC 200; 310 FLR 392 at [28] per Murrell CJ citing Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [66]), having regard to:

(a) the maximum penalty;

(b) the objective seriousness of the offences, as informed by the following facts:

(i) the offences involved the actual infliction of physical force to the victims;

(ii) the physical violence was repeated in nature;

(iii) the offences occurred in a public place;

(iv) the offences were unprovoked and committed against two unsuspecting victims who were complete strangers to the respondent, one of whom was female;

(v) the offences were sustained;

(vi) the respondent attacked the head of DJ, and inherently more dangerous area to attack than other parts of the body;

(vii) the respondent is a trained fighter;

(c) the respondent’s subjective features;

(d) the relevant purposes of sentencing.

26. The appellant referred me to the decisions in R v Ngata [2020] ACTSC 9 (Ngata) and R v Freeman-Quay (No 3) [2015] ACTSC 284 (Freeman-Quay). In Ngata, Mossop J stated at [54]:

Having regard to the social and legislative tolerance of excessive alcohol consumption, general deterrence is a significant sentencing consideration. It is necessary to deter young males from engaging in alcohol fuelled violence in public places. Punishment, accountability, denunciation and recognition of the harm done to the victim of crime and the community are also important sentencing considerations. Although the actions of the offender were out of character, specific deterrence remains a sentencing consideration.

27. In Freeman-Quay, Murrell CJ said at [36]:

[The] sentencing purposes of general deterrence and denunciation loom large in this case. Unfortunately “one punch” attacks in public places by young men who are grossly intoxicated are common. They arouse the abhorrence of the community. They placed vulnerable people (including other intoxicated people) in danger. They cry out for a strong message of general deterrence. The sentencing purposes of accountability and protection of the public are important for similar reasons.

28. The appellant also referred me to the decision of the New South Wales Court of Criminal Appeal in R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31, where the Court said, at [103] – [104]:

Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]. This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].

29. The appellant further submitted that while the respondent was a person of prior good character, the seriousness of the offences and the fact that there were no extenuating circumstances should have resulted in the Magistrate refusing to exercise her Honour’s discretion to dispose of the charges by way of non-conviction orders under s 17 of the Sentencing Act.

30. Finally, the appellant drew my attention to the decision of Robinson AJ in Kirby v Ali [2021] ACTSC 95 (Kirby v Ali), where his Honour doubted that this Court had a residual discretion to dismiss a prosecution sentence appeal from the Magistrates Court. In any event, the appellant submitted that this was not a case for the exercise of any residual discretion.

The respondent’s submissions

31. The respondent submitted that the Magistrate made clear reference in her Honour’s sentencing remarks to a number of the salient features of the offending including that it was an “extremely violent episode that occurred involving the offender assaulting two people of whom he did not know”, that he had punched DJ three times and had punched NM on the chin and to the chest. The respondent referred me to the decision of the New South Wales Court of Criminal Appeal in Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 where Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) said at [56]:

While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so…

32. With regard to the second ground of appeal, the respondent submitted that the decision in Martin left open the possibility that a drug induced psychosis following voluntary drug ingestion could be mitigatory in some circumstances. The respondent submitted that it was open to the Magistrate to accept that he had taken LSD before the offending, that it was the first occasion upon which he had used that drug (or indeed any drug) and that he had no reason to believe that ingestion of the drug would lead him to behave in an aggressive manner.

33. Turning to the third ground of appeal, the respondent submitted that there had been no objection to any of the testimonials or their contents taken by the appellant in the proceeding before the Magistrate, nor was there any application by the prosecutor that the provisions of the Evidence Act 2011 (ACT) should apply in the proceeding. The respondent submitted that it was open for the Magistrate to take into account the likely consequences flowing from the recording of a conviction on the basis that they were proved on the balance of probabilities.

34. With regard to the final ground of appeal, the respondent submitted that the claim of inadequacy in sentence made by the appellant amounts to an assertion that it was not open to the Magistrate to dispose of the charges under s 17 of the Sentencing Act. The respondent submitted that the Magistrate appropriately approached the exercise of her Honour’s discretion in accordance with the decision in Proud v Slavic and, while the resulting sentences were lenient, they were not manifestly inadequate.

35. The respondent drew my attention to the decision of the Court of Appeal in R v Avery [2018] ACTCA 57, the Court said with regard to Crown appeals from the Supreme Court, at [6]:

(a) Although s 37E of the Supreme Court Act permits an appeal to the Court of Appeal from any order of the Supreme Court, courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly. (b) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle. (c) Examples of the occasions for the bringing of a Crown appeal are: i. when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; ii. where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; iii. to enable the courts to establish and maintain adequate standards of punishment for crime; iv. to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; v. to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained; and vi. to ensure, as far as the subject matter permits, that there will be uniformity of sentencing. (d) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown. (e) In resentencing after a successful Crown appeal, the Court is bound to consider the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and impose a sentence that was appropriate in the first place.

36. Finally, it was submitted that the decision in Kirby v Ali is “problematic”, and in the event that this Court accepted that it has a residual discretion, the onus lies on the appellant to negate any reason why the residual discretion not to intervene should not be exercised: CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346 at [33] to [34]. The respondent submitted that there was no suggestion of a pattern of unduly lenient sentences the imposed for this type of offending in the Magistrates Court which would warrant the intervention of this Court. Consideration

First ground of appeal

37. With regard to the first ground of appeal, the allegation that the Magistrate failed to assess the objective seriousness of the offending, I am not satisfied that this ground has been made out. It is undoubtedly the case that the Magistrate could have more fully set out those matters bearing upon the assessment of the objective gravity of the offences, and probably would have, had her Honour the luxury of more time. As has been stated on many occasions, it is inappropriate on appeal from a decision of a Magistrate to construe the reasons given by the Magistrate as if they were reasons which were carefully considered and crafted: Bialecki v Rollings [2020] ACTSC 344 at [22] citing Acuthan v Coates (1986) 6 NSWLR 472. The Magistrate was not required to identify where the offences fell within a particular range of such offences, such as the low, medium or high range: Beniamini v Craig [2017] ACTSC 30 at [117] – [122], cited with approval in R v Miller [2019] ACTCA 25 at [21]. In any event, even if I was satisfied that the Magistrate had fallen into the error suggested, it would be inappropriate for me to intervene unless I was satisfied that the sentences imposed by the Magistrate were outside the range of those that could properly be imposed.

Second ground of appeal

38. Turning to the second ground of appeal, that the Magistrate erred in treating the respondent’s self-induced psychosis as a mitigatory factor, the case law regarding the relevance of voluntary intoxication to sentencing is vexed. It is difficult to derive a consistent principle, and much appears to turn upon the facts of the particular case. Care must also be taken to distinguish those cases where it has been argued that addiction is mitigatory (e.g. R v Henry [1999] NSWCCA 111; 46 NSWLR 346) from those concerned with an offender acting under the influence of an intoxicant (e.g. R v Coleman (1990) 47 A Crim R 306) (Coleman). In Coleman, in that part of the judgment of Hunt J, as his Honour then was, quoted in Martin at [11] above, it was accepted that intoxication of an offender may be either an aggravating or a mitigating circumstance. Presumably, it would also have to be accepted that it could be a neutral circumstance.

39. Considered in isolation, that part of the decision of the New South Wales Court of Criminal Appeal in Gagalowicz quoted by Elkaim J in MT, and reproduced at [12] above, may suggest a retreat from what was said in Coleman, but the quoted material must be viewed in its context. Gagalowicz was a case when the fact that the offender committed the offence while under the influence of drugs was never going to amount to a mitigatory circumstance. The offender had a long history of drug use and was aware that his use of the particular drug in question had led in the past to him developing psychosis. In that case, the question was whether his use of the drug should have been treated as an aggravating circumstance or as a neutral one. While the offender in Gagalowicz was aware that his use of the drug in question may cause him to develop a psychosis, he had no reason to believe on past experience that he would behave violently to the extent of killing another person in the course of such a psychosis. On that basis, his drug use was to be treated as a neutral circumstance. It is also worth noting that the decision in Coleman was not mentioned in Gagalowicz.

40. The decision in Coleman has been applied in subsequent cases in New South Wales: see, for example, Wood v The Queen [2019] NSWCCA 309; Stewart v The Queen [2012] NSWCCA 183. To the extent that the law as expressed in Coleman permitted a sentencing court to have regard to an offender’s intoxication for the purpose of determining the degree of determination involved in an offence, this position has been changed in New South Wales by the introduction of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which precludes self-induced intoxication being taken into account in sentencing as a mitigating factor.

41. It is often submitted that the fact that an offender was under the influence of an intoxicant when they committed an offence has caused them to act “out of character”. In ZZ v The Queen [2013] NSWCCA 83, the New South Wales Court of Criminal Appeal said at [110] – [112]:

In R v GWM [2012] NSWCCA 240 at [78]- [82], this Court adopted and applied the decision of the Victorian Court of Appeal in Hasan v R [2010] VSCA 352; 31 VR 28 with respect to the very limited relevance of self-induced intoxication to sentencing for offences of violence, including sexual assault. It was said in R v GWM at [78] that "voluntary intoxication operates rarely (at best) to mitigate penalty". The "out of character" exception is "acknowledged to exist, but it has almost never been applied": Hasan v R at 33 [21]; R v GWM at [80]-[81]. In Hasan v R, Maxwell P, Redlich and Harper JJA said at 37 [33]-[34] (footnotes excluded): "[33] Because the out of character exception has been so rarely applied, there has been almost no judicial exploration of the circumstances in which the exception might be applicable. It seems clear enough, however, that the circumstances must be quite exceptional before intoxication at the time of offending can mitigate the offender's moral culpability. [34] On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her. Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender's drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance." Properly understood, in accordance with the principles in Hasan v R, the "out of character" concept is a narrow one which has rare application: R v GWM at [82]. This conclusion is supported by other decisions of this Court, including Stanford v R [2007] NSWCCA 73; Bourke v R at 44 [26], [28] and BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 392 [55], 397 [79].

42. The decision in Coleman has been applied in the Australian Capital Territory: R v Taylor [2015] ACTSC 43 at [48]; R v MT [2014] ACTSC 162 at [77]. In my opinion, the decision in Coleman continues to have application to sentencing in this Territory until such time as an appellate decision determines otherwise, or the law is changed by statutory intervention. As such, voluntary intoxication on the part of an offender remains relevant to sentencing in the narrow way contemplated in Coleman.

43. The effect of the above analysis is that it will not always be an error to take into account voluntary intoxication as a mitigating circumstance in sentencing. To the extent that the Magistrate may have taken the respondent’s voluntary intoxication into account in sentencing, it would not have been an error if her Honour had done so in the limited way permitted by the decision in Coleman. The difficulty for the appellant is that it is not possible to determine how the Magistrate took the respondent’s voluntary intoxication into account as a mitigating circumstance, although it appears that she certainly did. Her Honour’s reasons do not permit a conclusion to be drawn on this question. Any mitigatory effect of the respondent’s voluntary intoxication with LSD could only be very minor. As the Magistrate observed, while the respondent may not have been aware of the likely precise effect upon him of his consumption of LSD, he must have expected some effect. That is the whole purpose of taking illicit drugs. The respondent voluntarily consumed a known hallucinogen. While he did not have previous experience with the consumption of LSD to guide him as to the likely effect of that drug on him, that does not necessarily significantly reduce his moral culpability for his actions whilst drug affected. The consumption of a known hallucinogen in circumstances where the offender has no prior experience of the likely effect of that drug upon them is highly reckless.

44. I am not satisfied that the Magistrate made the error alleged by the appellant.

Third ground of appeal

45. With regard to the third ground of appeal pleaded by the appellant, that the Magistrate took into account consequences emanating from a conviction that were not sufficiently supported by evidence, no objection was taken by the prosecution in the proceeding before the Magistrate to the admittedly slim material which spoke of potential consequences for the respondent if convictions were recorded. No submission was made by the prosecutor to the Magistrate that her Honour should ignore, or give no weight to, that material. In those circumstances, it would not be appropriate to uphold this ground of appeal.

Fourth ground of appeal

46. Turning to the last, and most significant, ground of appeal, the appellant’s position is that the disposition of these charges without convictions was manifestly inadequate. The principles to be applied in consideration of such a ground of appeal are not in doubt. In R v Stacker [2020] ACTCA 34, Loukas-Karlsson J, with whom Mossop and Charlesworth JJ agreed on this point, said at [141]:

The principles applying to a Prosecution appeal on against sentence on the basis of manifest inadequacy were recently stated in R v UG [2020] ACTCA 8 (at [41]-[42]): [I]n R v Nicholas; R v Palmer [2019] ACTCA 36 (Nicholas), this Court summarised the principles applying to a Crown sentence appeal alleging manifest inadequacy in the following way (at [66]–[68]): A claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence. The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]: • Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge. • The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice. • In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles. • It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence. (citations omitted) In the case of Crown appeals alleging manifest inadequacy of a sentence, the correct approach was recently summarised in R v Rappel [2019] ACTCA 11 at [10], where the Court stated: As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” ... Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke [1996] VicRp 83; (1996) 2 VR 520 at 522: (a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) to enable the Court to establish and maintain adequate standards of punishment; (c) to ensure uniformity in sentencing, so far as the subject matter permits. In R v Duffy [2014] ACTCA 53; 297 FLR 359 at [60], the Court said: It will be very difficult for the Crown to succeed on an appeal where it relies solely on “manifest inadequacy” and seeks to infer an error of principle from the length and/or nature of the sentence. Whereas offender appeals are concerned with the correction of error in particular cases, prosecution appeals are brought to establish matters of principle. In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle. As to the utility of particularising a claim of manifest inadequacy (or, for that matter, manifest excess), we agree with the observations of Priest JA in Director of Public Prosecutions v Ristevski [2019] VSCA 287. At [62], His Honour (with whom Ferguson CJ and Whelan JA agreed, except in relation to the appropriate resentence) said: Much of the argument on the appeal seemed directed to assertions of specific error. That may be because, as has become customary, the ground of appeal complaining of manifest inadequacy had six subjoined ‘particulars’. In my opinion, however, supposed particulars of manifest inadequacy are, at best, a distraction; and at worst, are calculated to subvert the essential inquiry that must be made when it is asserted that a sentence is manifestly inadequate. Indeed, undue attention to ‘particulars’ invites a piecemeal consideration of the relevant features of a case, inconsistent with an approach which intuitively synthesises all relevant factors.

47. The starting point in considering this ground must be the relevant provisions of the Sentencing Act. Section 7 of that Act sets out the purposes of sentencing:

Purposes of sentencing (1) A court may impose a sentence on an offender for 1 or more of the following purposes: (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community. (2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

48. The imposition of non-conviction orders is governed by s 17 of the Sentencing Act:

Non-conviction orders – general (1) This section applies if an offender is found guilty of an offence. (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13. … (3) In deciding whether to make a non-conviction order for the offender, the court must consider the following: (a) the offender’s character, antecedents, age, health and mental condition; (b) the seriousness of the offence; (c) any extenuating circumstances in which the offence was committed. (4) The court may also consider anything else the court considers relevant. Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10). (5) If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender. … (6) Failure to comply with subsection (5) does not invalidate the non-conviction order. (7) If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years. (8) This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).

49. As the appellant submitted, the ordinary consequence of proof of criminal offending is the recording of a conviction. The imposition of a non-conviction or order is therefore a disposition which falls outside of the ordinary. There must be good reason for adopting such a course. The section does not require that exceptional circumstances be demonstrated before a non-conviction order may be imposed, but cogent or compelling circumstances should be demonstrated before a court is persuaded to deviate from the ordinary consequence of criminal offending. The section is not a “first offenders” provision, so that a lack of prior convictions would not, of itself, ordinarily satisfy the requirement to demonstrate compelling circumstances justifying a non-conviction order. Virtually every offender who comes to be sentenced by a court will put material before the court concerning their character, antecedents, age, health, or mental condition. Many will also suggest that the offence was committed under extenuating circumstances. When properly analysed, in most cases the material will not take the offence or the offender outside the ordinary.

50. The requirement in s 17(3)(b) that a court consider “the seriousness of the offence” requires the sentencing court to not only consider the type of offence committed but also the gravity of the particular offence in the spectrum of cases that may fall within the ambit of that type of offending. In the present case, the Magistrate was obliged to consider where in the spectrum of offences of assault under s 26 of the Crimes Act 1900 (ACT) the offences committed by the appellant fell. The offence of assault may be committed without any physical contact between the offender and the victim; all that is required is the intentional creation of an apprehension of physical harm in the victim by the offender. An offence of assault not involving physical contact with the victim would usually fall at the bottom end of the range of seriousness of such offences. The assaults committed by the respondent were well above that range and constituted serious examples of that type of offending. Multiple forceful blows were delivered to both victims. In my opinion, the Magistrate gave insufficient weight to the seriousness of these offences in sentencing the respondent.

51. As the Victim Impact Statements revealed, these offences had significant and ongoing detrimental effects on the victims. That is a matter which should have weighed heavily against non-conviction orders.

52. The respondent’s intoxication was relevant to determining his degree of deliberation in committing the offences, and to a determination that he acted contrary to his normal character, but for the reasons I have given those matters could not be given great weight.

53. The respondent’s relative youth is a factor which would tend towards leniency, but it is a sad fact that many offences of violence are committed by young men, and particularly by intoxicated young men.

Orders

57. The appeal will be upheld, and the sentences imposed by the Magistrate are set aside and convictions are recorded on each charge.

58. On each charge there will be a Good Behaviour Order for a period of 12 months commencing today, 4 August 2021, with a condition that the respondent will be subject to the supervision of officers of ACT Adult Corrections for that period of 12 months or such lesser period as deemed appropriate by his supervising officer, and that he obey all reasonable directions of such persons.

59. The appellant is to pay the respondent’s costs of and incidental to the appeal.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

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