Bianamu v Rigby [2020] NTSC 43

Sentencing Act 1995 (NT) s 78CA, s 78DA

Anzac v Flynn [2019] NTSC 8, Carroll v The Queen [2011] NTCCA 6; (2011) 29 NTLR 106, Hampton v The Queen [2008] NTCCA 5, Hankin v The Queen [2009] NTCCA 11; (2009) 25 NTLR 110, Lambert v R [2015] NSWCCA 22, Leaney v Bell [1992] NTSC 63; (1992) 108 FLR 360, Marshall v Court [2013] NTSC 75, McCarthy v Trenerry [1999] NTSC 29, Norris v The Queen [2020] NTCCA 8, Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, Putti v Simpson [1899] ArgusLawRp 144; (1975) 6 ALR 47, R v Abbott (1984) 17 A Crim R 355, R v McKenna (NSWCCA, unreported, 16 October 1992), R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, R v Scott [2005] NSWCCA 152, Seears v McNulty (1987) 89 FLR 154, The Queen v Duncan [2015] NTCCA 2; (2015) 34 NTLR 201, Thomas v The Queen [2017] NTCCA 4, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, Yi Hong Puan v R [2009] NSWCCA 194, referred to.

Respondent: Office of the Director of Public Prosecutions

Bianamu v Rigby [2020] NTSC 43

• [1] This is an appeal against sentence brought pursuant to s 144 of the Local Court (Criminal Procedure) Act 1928 (NT). On 9 October 2019, the appellant pleaded guilty to unlawfully entering a building at night-time with the intent to commit an assault contrary to s 213 of the Criminal Code 1983 (NT); and unlawfully causing harm contrary to s 186 of the Criminal Code. The maximum penalty for the first offence was imprisonment for four years, and the maximum penalty for the second offence was imprisonment for five years.
• [2] The appellant was sentenced to imprisonment for 12 months for the aggravated unlawful entry, and also to imprisonment for 12 months for unlawfully causing harm. Six months of the sentence imposed for the second offence was ordered to be served cumulatively on the sentence imposed for the first offence. The total effective period of imprisonment was 18 months. It was further ordered that the sentence would be suspended after the appellant had served six months, and an operational period of 12 months from the date of release was fixed for the purposes of ss 40(6) and 43 of the Sentencing Act 1995 (NT).

• [3] The grounds of appeal pleaded in the Notice originally filed by the Northern Territory Legal Aid Commission on 25 October 2019 were that the sentence was manifestly excessive and that the sentencing judge erred by imposing a term of actual imprisonment.
• [4] It appears that the matter was then briefed to the counsel who appeared for the appellant in this appeal, and by Notice dated 28 January 2020 those grounds were amended to plead that the sentencing judge "erred in law in imposing a sentence which was manifestly excessive in all the circumstances of this case"; and that "the sentence was manifestly excessive in all circumstances of the case (sic)". It would appear that the first amended ground is intended to plead specific error, and the second amended ground is intended to plead that the sentence imposed was excessive even if specific error is not established.
• [5] The errors particularised in the first amended ground of appeal are that the sentencing judge:

(a) improperly categorised the offence of unlawfully causing harm as a Level 5 offence within the meaning of s 78CA of the Sentencing Act;

(b) "[d]eparted from section 50 Sentencing Act and made an order for partial concurrency in circumstances where two technically different offences amounted to a single course of conduct";

(c) failed to properly apply the principle of totality;

(d) failed to order a report from the Commissioner of Correctional Services in relation to the availability of home detention;

(e) failed to consider whether an order suspending sentence subject to supervision would be appropriate, and failed to order a report pursuant to s 103 of the Sentencing Act;

(f) "[f]ailed to make enquiries of the prosecutor in relation to any penalty imposed on the Co-offender jointly charged on the information before the Court"; and

(g) "[d]eparted from the principle that a term of imprisonment should only be imposed as a sentence of last resort".

• [6] The appeal first came on for hearing on 17 February 2020. During the course of submissions, the presiding judge drew attention to the fact that in the sentencing proceedings the defence had not sought orders for the reports particularised in the amended grounds of appeal. Counsel for the appellant then sought an adjournment to allow the grounds of appeal to be amended further to plead incompetence on the part of counsel who appeared for the appellant during the course of the sentencing proceedings. The matter was adjourned to 31 March 2020.
• [7] By Notice dated 17 March 2020 the grounds of appeal were amended to plead as an additional ground:

The Appellant was represented by counsel whose competence fell short of the standard which a court shall be entitled to expect, which gave rise to a miscarriage of justice.

• [8] As a result of COVID-19, the Judge who had commenced hearing the appeal on 17 February 2020 was unable to return to the Northern Territory to resume the hearing on 31 March 2020. The appeal was relisted before me on 20 April 2020 for hearing and determination ab initio, with reference also to the oral submissions which had been made by the parties on 17 February 2020.
• [9] By Notice dated 15 April 2020 the grounds of appeal were amended once more to plead the following additional ground:

The sentence is manifestly excessive given the new evidence relevant to the Appellant's subjective circumstances which have come to light since the sentence was imposed.

The facts and circumstances of the offending and offender

• [10] The facts of the offending for which the appellant was sentenced may be summarised as follows.
• [11] Late in the evening of 26 July 2018, the appellant made her way to a house in Belyuen in company with six other people - three of them male and three of them female. There were two women in the house at the time, together with the 12-year-old daughter of one of those women and the 15 year old son of the other.
• [12] When the appellant's group reached the house they used force to break the sliding bolt lock on the front door and entered the residence. They upended the furniture in the main living area of the house and smashed the flat screen television which was there. The occupants of the house were at that time in a bedroom. They closed the bedroom door and pressed the weight of their bodies against the door in an attempt to prevent the appellant and her co-offenders from entering the bedroom. They were unsuccessful in doing so, and the appellant and her co-offenders entered the bedroom as a group.
• [13] One of the victims placed her 12-year-old daughter behind her in a corner of the room and used her body to shield the child from harm. A number of the appellant's co-offenders then attacked that victim. At the same time, the appellant and a number of her other co-offenders attacked the other victim, punching her to the head and body an unknown number of times. They then left the house.
• [14] A neighbour called police and the ambulance service. The victim who had been directly attacked by the appellant suffered facial injuries and a broken arm. That victim subsequently made a Victim Impact Statement in which she described the pain in her face and right arm which she suffered as a result of the assault. She said she was scared to go back to the community and was worried for her family.
• [15] The day following the unlawful entry and assault the appellant approached police in the Belyuen community to speak about the incident. She participated in a record of interview with police. During that interview the appellant gave an account in which she had been threatened earlier in the day by one of the victims, and that she had gone to the victim's house that night in company with her co-offenders for the purpose of exacting revenge. She admitted to participating in the "bashing" of one victim, but not the other. The appellant was subsequently issued with a Notice to Appear.
• [16] By the time the matter came on for plea more than 12 months later the offender was in an advanced state of pregnancy. She was taken into custody on 9 October 2019. The child was born on 31 October 2019. The appellant was released on appeal bail on 11 November 2019. The various amendments and adjournments which led to the delay in hearing this appeal have been described above.

• [17] The grounds of appeal asserting specific error on the part of the sentencing judge are largely misconceived, and may be dealt with in short order.

• [18] The first error asserted is that the sentencing judge improperly categorised the offence of unlawfully causing harm as a Level 5 offence within the meaning of s 78CA of the Sentencing Act. This contention is based on the following remarks made on sentence (emphasis by underlining added):[1]

Count 3 has a maximum penalty of 4 years in prison because the offence the defendant had committed when forcing entry was an assault and the maximum penalty for an assault is 2 years. Because it occurred at night you double that to give you 4 years.

This is in my view, when I consider the overall circumstances of offending, a most serious matter and my starting point is 18 months. I reduce that because of the early plea, the earliest plea. And I will reduce that because of prior good character and positive prospects of rehabilitation as evidenced by no offending in the period of over 12 months since the offending. And overall the defendant is convicted on count 3 and sentenced to 12 months in prison.

On count 6 the maximum penalty of 5 years. The harm that was caused to Joslyn Gordon apart from punches, bruising, included a broken arm. I don't have to distinguish as to whether the broken arm was caused by this defendant before the court or one of the other co-offenders.

The starting point for this offending in my view, noting that if this had been a charge of aggravated assault we would have a mandatory minimum of 12 months. This is not such a charge. There is no mandatory minimum. And noting that the [maximum penalty is] 5 years and noting the injuries, my starting point for this is again 18 months. And my conclusion is again a conviction and sentenced to 12 months in prison.

• [19] It may be accepted at the outset that the mandatory minimum sentence of 12 months' actual imprisonment for the offence of aggravated assault has application only where the commission of the offence involves the actual or threatened use of an offensive weapon, the victim suffers physical harm as a result of the offence, and the offender has previously been convicted of a violent offence.[2] However, it does not follow that the sentencing process was thereby infected by error.
• [20] First, the sentencing judge noted expressly that the offence for which the appellant stood to be sentenced was "not such a charge", and that there was no mandatory minimum for the offence. Second, there is nothing in the adoption of a starting point of 18 months and the application of what was, in effect, a discount of 33 percent for the plea of guilty and other mitigating factors, which necessarily suggests that the sentence was fixed by reference to some form of parallel mandatory minimum. If anything, the correlation in the sentence imposed was with the sentence imposed for the aggravated unlawful entry. This assertion of error is not made out.

• [21] The second error asserted is that the sentencing judge misapplied s 50 of the Sentencing Act by making an order for partial concurrency in circumstances where the two offences amounted to a single course of conduct. Section 50 of the Sentencing Act provides:

Unless otherwise provided by this Act or the court imposing imprisonment otherwise orders, where an offender is:

(a) serving, or has been sentenced to serve, a term of imprisonment for an offence; and

(b) sentenced to serve another term of imprisonment for another offence;

the term of imprisonment for the other offence is to be served concurrently with the first offence.

• [22] That section does not create a presumption that sentences should be served concurrently, or otherwise fetter the discretion of a sentencing court. It confers on a sentencing court the power to order cumulation and makes concurrency the default position in the absence of such an order. Although this has sometimes been described as the "prima facie" position, there is no presumption of concurrency. Section 51 of the Sentencing Act then provides for a general discretion in the court to order the cumulation of sentences in whole or in part.[3] The exercise of that discretion was discussed by the Court of Criminal Appeal in Carroll v The Queen.[4] In short, the default position may be displaced by contrary order; the call for concurrency will be greater where the offences are closely related and interdependent; and there is no fetter on a sentencing court's discretion beyond the requirement that the sentence imposed must be proportionate to the total criminality of the offending.
• [23] The considerations which operate in the assessment of nexus, interdependency and sentence were discussed by the Court of Criminal Appeal in Thomas v The Queen.[5] The Court identified a number of principles which have relevance to the present circumstances. First, where the offences are part of a single episode of criminality with common factors it is more likely that the sentence imposed for one of the offences will reflect the criminality of both, particularly where the circumstances in which each offence was committed were "highly interdependent". Second, that the offences form part of what might be described as a "single episode" does not of itself necessitate or warrant concurrency. The operative question is whether the sentence imposed for one offence encompasses in whole or in part the criminality of the other offence or offences. Third, there will be circumstances where two or more offences take place in a single episode in which are discernible two or more courses of criminal conduct constituting "separate invasions of the community's right to peace and order". Fourth, temporal proximity is not conclusive, particularly in offences of violence involving separate attacks and/or separate victims.
• [24] In this matter, the criminality of the unlawful entry offence was quite distinct from the criminality of the unlawful harm offence, notwithstanding that they occurred as part of what might broadly be described as a single episode. As the presiding judge sought to explain to counsel for the appellant at the first hearing of this appeal, the aggravating circumstance of an intention to assault in the former offence was different to the element of actually causing harm in the latter offence. The sentence imposed in respect of the former offence did not wholly reflect or subsume the criminality of the latter offence, and an order for at least partial accumulation was appropriate in the circumstances. No error is made out in this respect.

• [25] The third error asserted is that the sentencing judge failed to properly apply the principle of totality. This contention is based on a rather literal adoption of the proposition, sometimes expressed, that a sentencing judge must "look back" at the sentence as adjusted having regard to objective criminality, subjective circumstances and any appropriate discount in order to consider whether it requires further adjustment having regard to the offender's criminality as a whole.[6]
• [26] As counsel for the respondent submitted, there is no "third stage" in the process of instinctive synthesis. The expression "a last look" is metaphorical.[7] While considerations of totality will ultimately govern the proportionality of a sentence, they form part of the complex of factors which a sentencing court takes into account as part of a single process. In any event, the sentencing judge made express reference to the issue of totality as part of the determination of concurrency and cumulation:[8]

I come to consider issues of totality. And although it was all the one course of conduct, the breaking in in these circumstances and then the harm in my view do amount to separate criminal acts. There will - of the 12 months for count 6, 6 months will be served concurrently and 6 cumulatively on count 3. The total effective sentence is therefore 18 months' imprisonment.

• [27] The sentencing judge clearly turned his mind to the question of totality, and his determination in that respect was reflected in the order for partial concurrency. It is not necessary for a sentencing judge to go through the process of fixing the sentences and making orders for cumulation and/or concurrency (as the case may be), and then to go through a distinct and mechanical further process, made express in the sentencing remarks, of "looking back" on the sentence first derived. No error is made out in this respect.

• [28] The fourth error asserted is that the sentencing judge failed to order a report from the Commissioner of Correctional Services in relation to the availability of home detention. The appellant's argument in this respect seems to go as follows. There was some discussion of home detention as a possible disposition during the course of sentencing submissions. The Community Corrections officer in attendance at court advised that home detention had not previously been conducted in the appellant's home community of Belyuen, and checks would have to be done and equipment tested before any order for home detention could be made. The sentencing judge concluded that Belyuen would not be an appropriate place for home detention, in circumstances where s 45(1)(a) of the Sentencing Act imposes an obligation on the sentencing court to request a report if it is considering the imposition of a sentence to be served by way of home detention. The sentencing court therefore erred in law in failing to comply with that mandatory requirement.
• [29] That submission must be rejected. First, as counsel for the respondent identifies, an order for, and the receipt of, a home detention assessment report pursuant to s 45(1) of the Sentencing Act is a condition precedent to the making of such an order. It is not a condition precedent to the consideration of home detention as a possible disposition. Second, the fact that home detention has been raised as a possible disposition during the course of submissions imposes no obligation on a sentencing judge to order an assessment report. Third, the sentencing judge considered and rejected home detention as an appropriate disposition on the basis that the objective seriousness of the offending required a term of actual imprisonment:[9]

I come to consider the various ways I can deal with that. I'm satisfied that Belyuen is unlikely to be an appropriate place for any form of home detention. It hasn't been tried before I am informed by Mr James. And in any event I am not satisfied that this is appropriate in all of the circumstances. I have already rejected any possibility of a lesser sentence than actual imprisonment.

• [30] For reasons which are discussed further below in the context of the ground asserting manifest excess, there were good reasons why a sentence to actual imprisonment was indicated. No error is made out in this respect.

• [31] The fifth error asserted is that the sentencing judge failed to consider whether an order suspending sentence subject to supervision would be appropriate, and failed to order a report pursuant to s 103 of the Sentencing Act. The first thing to note in relation to this contention is that the sentencing judge did in fact make an order suspending sentence after the appellant had served six months. The substance of this contention is that the sentencing judge should have imposed a wholly suspended sentence subject to rigourous supervision provisions. The appellant submits that supervision on such terms would have adequately served the purposes of punishment and deterrence and obviated the need for actual imprisonment. It is said that the sentencing judge was therefore required to order an assessment of supervision to effectuate that disposition, or at least to explore its suitability as a sentencing option.
• [32] As counsel for the respondent submitted, there must be some nexus between the imposition of a requirement for supervision, the offending conduct and the criminogenic factors involved. There was no suggestion that this offending was the result of alcoholism, drug addiction or poor impulse control due to some form of psychological issue requiring counselling or treatment. Accordingly, there was no call for the sentencing judge to order an assessment of the appellant's suitability for supervision.
• [33] Properly analysed, the appellant's complaint in this respect is that the sentence was not suspended in whole, rather than after the appellant had served six months' imprisonment. Again, that is a contention which falls to be addressed in the context of manifest excess, rather than on the basis of a confected failure to make the order suspending sentence subject to supervision. No error is made out in this respect.

• [34] The sixth error asserted is that the sentencing judge failed to make enquiries of the prosecutor in relation to any penalty imposed on one of the appellant's co-offenders. During the course of submissions the sentencing judge did make an enquiry of defence counsel concerning the co-offenders. The result of that enquiry is not apparent from the transcript:[10]

HIS HONOUR: Do you know anything about how the co-offenders were dealt with?

• [35] While it is no doubt correct to say that the principle of parity requires that sentences are proportionate and just as between co-offenders, subject to differences in the offences charged and the subjective circumstances, there is no onus on a sentencing judge to conduct an enquiry into the sentencing outcomes for co-offenders. The onus is on counsel to proffer any relevant materials and to make any submission based on the parity principle. Even leaving aside that matter, this assertion of error fails at the very threshold. It became apparent during the course of this appeal that none of the co-offenders had been sentenced at the time of the appellant's sentencing proceedings. The artificiality of this ground of appeal is highlighted further by the fact that there is no contention that the sentences subsequently imposed on any of the co-offenders give rise to a parity issue.

• [36] The final error asserted is that the sentencing judge failed to apply the principle that a term of imprisonment should only be imposed as a sentence of last resort. When reduced to its essence, the contention is that because a term of imprisonment was imposed the sentencing court must necessarily have failed to apply the principle of last resort. There is nothing in the sentencing remarks to indicate that the sentencing judge disregarded or somehow flouted this basal principle. No error is made out in this respect.

Fresh evidence relevant to the appellant's subjective circumstances

• [37] It is convenient to deal next with the ground of appeal contending that the sentence imposed is manifestly excessive given "the new evidence relevant to the Appellant's subjective circumstances which have come to light since the sentence was imposed". Some of the material sought to be tendered related to circumstances transpiring after the sentence had been imposed.
• [38] Evidence relating to matters transpiring after the sentence was passed is not admissible in the determination of the appeal, although it may be admissible in any resentencing exercise if the appeal is allowed. The provisions of s 176A of the Local Court (Criminal Procedure) Act only permit the introduction of evidence "related to the time when sentence was passed, either to make up for a deficiency in that evidence which could have been brought forward at that time, or to better explain the evidence which was brought before that Court".[11] Where fresh evidence relating to the time when sentence was passed is properly received on appeal, the appellate court may then form its own independent opinion of the evidence and "give judgment as if it were sitting as a court of first instance".[12] Where fresh evidence is not admitted on appeal it must proceed in the nature of an appeal in the strict sense.[13]
• [39] The further evidence relating to the time when sentence was passed may be summarised as follows:

(a) A letter from the Knucky Women's Centre dated 19 February 2020 states that while the appellant was residing in the Belyuen community she engaged in Work for the Dole obligations at the Centre, and that the appellant had abstained from alcohol through the course of the pregnancy. The author states that she has never witnessed the appellant to be verbally or physically violent towards anyone at the Centre.

(b) A letter from the Belyuen Community Health Centre dated 30 January 2020 states, so far as is relevant for these purposes, that during an attendance on 29 January 2020 the appellant denied further alcohol consumption and said she had not drunk since early pregnancy. The Centre's records showed she had experienced problems with alcohol in the past.

(c) A letter from the Danila Dilba Health Service dated 12 March 2020 states, so far as is relevant for these purposes, that during an antenatal attendance on 17 April 2019 the appellant said she had not engaged in alcohol and drug use during pregnancy.

(d) A further letter from the Danila Dilba Health Service dated 3 April 2020 states that the appellant attended for one antenatal visit on 17 March 2019 and it was recorded that she was not using any drugs or alcohol at that time.

(e) A clinical psychology report dated 14 April 2020 deals principally with the impact which a return to gaol at this time would have on the emotional and psychological health and well-being of the appellant and her child in the event of separation. While that opinion might be relevant in any resentencing exercise, it is not evidence relating to the time when the sentence was passed.[14] The only material relevant to that time is the report that the appellant had abstained from alcohol and smoking during the course of her pregnancy; that the appellant had been drunk on the night of the assault; that the appellant accepted full responsibility for her part in the offending; and that the appellant demonstrated some insight into the cause of her offending.

• [40] During the course of the sentencing proceedings no reference was made to intoxication on the part of the appellant during this offending. The matter is not included in the agreed facts which were negotiated between the prosecution and the defence. That is no doubt because, as counsel for the appellant appears to concede, the appellant's intoxication was not an aggravating or mitigating circumstance in this particular case. The significance which counsel for the appellant seeks to attribute to the evidence in relation to the appellant's intoxication is that her abstinence from alcohol during the course of her pregnancy, which was subsequent to the offending, demonstrated good prospects of rehabilitation. Counsel for the appellant says further that the acceptance of responsibility and expression of remorse made during the one-hour telephone consultation with the clinical psychologist also operates in mitigation and demonstrates positive prospects of rehabilitation.
• [41] The ultimate submission is that the failure to have regard to these relevant considerations resulted in a sentence which was manifestly excessive. It is in essence an assertion of specific error, albeit one occasioned by the fact that these materials were not put before the sentencing court. A number of observations may be made in that respect.
• [42] First, during the course of sentencing submissions defence counsel made a number of submissions relevant to the questions of remorse and rehabilitation. It was expressly noted that the offending had occurred over a year prior to the date of sentence and the appellant had not reoffended in any way during that period; that the appellant had apologised to the complainant; that the appellant had demonstrated ongoing good character over an extended period of time; that the appellant had some work history at the community store; and that the offending was an aberration which was due largely to "a relatively unique factual matrix and circumstances".
• [43] Secondly, the sentencing judge treated the plea of guilty to the charge of aggravated unlawful entry as a plea at the earliest opportunity, and the plea of guilty to the charge of unlawfully causing harm as a plea made at an early stage. The sentencing judge expressly acknowledged that the appellant had no prior or subsequent criminal history. Having regard to those matters, in relation to the aggravated unlawful entry offence the sentencing judge relevantly stated:[15]

This is in my view, when I consider the overall circumstances of offending, a most serious matter and my starting point is 18 months. I reduce that because of the early plea, the earliest plea. And I will reduce that because of prior good character and positive prospects of rehabilitation as evidenced by no offending in the period of over 12 months since the offending. And overall the defendant is convicted on count 3 and sentenced to 12 months in prison.

• [44] Given that resolves to a discount of one-third, rather than the usual 25 percent given for a guilty plea accompanied by genuine resipiscence, the sentencing judge clearly accepted that the appellant was remorseful, was of good character, and had good prospects of rehabilitation. A similar discount was given in relation to the unlawfully causing harm offence. In those circumstances, evidence to the effect that the appellant had abstained from alcohol in the period following the offending would have added little or nothing to the positive assessment of her prospects of rehabilitation. Similarly, an observation by a person who has had intermittent contact with the appellant to the effect that they had not previously seen the appellant act in a verbally or physically violent manner in the workplace would add nothing to that assessment.
• [45] The sentencing judge also made specific reference to the amends made by the appellant:[16]

And the victim impact statement from Joslyn Gordon, where she says she has lots of pain in her face and right arm, where she was assaulted. She's scared to go back to Belyuen. "I'm worried for my family. I want these people to go to prison." I am told by Mr Saunders, for the defendant, that since then the victim and the defendant have made peace between them, and that's something I note and take into account to some degree.

• [46] It is no doubt always possible to put further and more detailed material before a sentencing court in relation to matters of mitigation. The question presenting here is whether that further information was necessary or would have had some further bearing on the result, and whether the further material which has been proffered on appeal demonstrates manifest excess. Both those questions must be answered in the negative.

• [47] The next ground of appeal is that the incompetence of counsel during the course of the sentencing proceedings gave rise to a miscarriage of justice. Counsel for the respondent raised the preliminary issue of the extent to which an appeal on this ground falls within the scope of s 163(1) of the Local Court (Criminal Procedure) Act. For reasons which are discussed further below, and as the respondent concedes, this ground is available in an appeal against "sentence" under s 163(1)(a). It is unnecessary for these purposes to decide whether it is available in an appeal asserting "error or mistake, on the part of the Local Court" under s 163(1)(b).
• [48] That inquiry required under this ground of appeal is an objective one.[17] The relevant question is whether the act or omission resulted in a miscarriage of justice, not whether the act or omission itself was the result of significant fault, flagrant incompetence or egregious error.[18] The inquiry is also not an examination of what counsel did not know or think about; but of what did or did not happen during the course of the proceedings and whether a miscarriage of justice was occasioned.[19]
• [49] Ordinarily, the question will be whether the incompetence of counsel has caused a criminal trial to miscarry, and even in those circumstances the appellant carries a heavy burden of establishing a miscarriage of justice.[20] The question in this case is not whether there was a fundamental failure in the trial process or whether there has been an unjust conviction. Rather, it is whether there has been error in the sentencing process, and in the sentence imposed, as a result of the incompetence of counsel. As the New South Wales Court of Criminal Appeal has observed, "it will be a very rare case indeed that it would be held that a miscarriage of justice has occurred simply because of a defect in submissions made to a sentencing judge by defence counsel".[21] It may be accepted, however, that a miscarriage may occur in that context where material relevant to the sentence is not produced at the hearing[22], or where the sentencing judge has failed to give any consideration at all to the available sentencing options[23].
• [50] Against that background, it is instructive to consider the substantive submissions put by defence counsel during the course of the sentencing proceedings. They were:[24]

MR SAUNDERS: Your Honour, I will start at the outset. The submission is that this is a level 1 offence. It's her first offence and therefore is no mandatory imprisonment.

HIS HONOUR: Yes, I accept that there's no mandatory imprisonment. However, why should not I sentence your client to imprisonment in the event of the serious nature of the offending?

HIS HONOUR: Yes, well, talk to me about the unlawful entry into a dwelling, house in the meantime.

MR SAUNDERS: Yes, your Honour. With respect, from the point of view of objective seriousness I understand this is a fairly serious example - - -

MR SAUNDERS: - - - of that. I wouldn't say it's at the highest end but it's certainly at mid-range from an objective seriousness point of view. Now, I raise that, the objective seriousness, because in essence that was at both the upper and lower range of the penalty that the court would impose today. I note, your Honour, my client is unknown.

MR SAUNDERS: Your Honour, with respect to my client I raise that she has no convictions. This is the first time before the court. But certainly she has no convictions as far as I am aware of. I have a copy, a fresh copy of that criminal history. There is no criminal history, your Honour, I'm just informed.

Your Honour, just to provide some context to the offending. This is perhaps the culmination of what was an ongoing, a long dispute between members of the community. It had been going for a while between various families. And it appears that some members of the community effectively decided upon which their complaints on this matter had brought people from other areas, in particular Groote Eylandt community members into that community.

They were, in my submission, they had been walking around with weapons and causing a bit of trouble. That was creating unrest within the community.

HIS HONOUR: This is not a community where your client ordinarily resided, was it?

MR SAUNDERS: It is, your Honour. My instructions - - -

MR SAUNDERS: Yes, your Honour. My client's not from this area, not from Wadeye. She's come here for a funeral some time ago and is remaining. But intends to return back to Belyuen and she's lived her whole life in Belyuen, I'm instructed.

MR SAUNDERS: She is related to, I believe, the co-accused and she's also related to, through the traditional kinship system, the complainants in this matter. There had been an incident earlier in the day, not involving my client but involving family members. I would say - I asked my client whose idea it was to go to the house and she told me it wasn't hers. It was other members of that group. But she did participate, your Honour.

In my submission though she's not the primary participant. Obviously the matter falls under the joint criminal enterprise that my client by her presence and also later in her participation does form part of the overall act. But I would say that her moral culpability perhaps is less than somewhat by not being the person who suggested she head there, but essentially followed along and became involved.

With respect to her subjectives. I would also note, your Honour, that this offending occurred over a year ago. My client has not re-offended in any way. I asked her about the relationship with her complainants now and she tells me that they have sorted this out, that the complainant has been to her house playing cards and things have been resolved between the parties. But for obviously not yet legally but they are certainly resolved and done their own sorry business with each other.

MR SAUNDERS: Your Honour, with respect to my client's subjectives, she's a 31-year-old Wadjigan woman. She has grown up in the Belyuen community. Her mother resides in Belyuen, her father resides in Darwin. She is the sole child of that union but her father has further partnered and she has three half-siblings who also reside in Darwin. She went to school to year 11.

She can read and write, she tells me. She went to - had the privilege of going and spending some time at Kormilda College through her high school years. She has worked intermittently. She has worked at the Belyuen store. That work ended because of a crisis incident, I understand, but as part of the trouble that was occurring in the community at the time, that incident forms part of.

She is currently pregnant, your Honour. She is due on 11th November. This will be her second child. I would state, your Honour, that overall this is a serious allegation.

MR SAUNDERS: I beg your pardon, your Honour. Overall it's a serious offence. In my submission, your Honour, my client did play a lesser part.

In my submission, your Honour, taking into consideration her circumstances there are alternatives to a prison, a custodial sentence. Particularly given both her lack of criminal antecedents and given particularly both her lack of re-offending since this incident.

What this shows, your Honour, is a peculiar set of circumstances have arisen within the community. No doubt circumstances which have arisen in different ways in other times, my client has never participated at any time previously.

In my submission this is a matter that the court should show some leniency. There are alternatives to prison. In my submission my [client] could be placed on a good behaviour bond, a rather lengthy one to ensure that she complies with that good behaviour. But the advantage of giving her a lengthy good behaviour bond, it serves the community insofar as if she were to breach that good behaviour bond in any way this matter would come back before the court.

And no doubt the court could then have an opportunity to deal with her differently. It would be also less inclined to show that leniency because she would be in breach of that part of it.

Taking into consideration her subjectives. In particular she's about to have another child. In my submission that is an alternative that is available in these circumstances despite the seriousness of the offending. And that would best serve the community.

Unless I can assist the court any further, those are my submissions.

HIS HONOUR: Mr Saunders, I am going to caution you now I am not going to view the matter as you suggested by way of a good behaviour bond. But I invite [you] to make any further submissions you wish at this point.

MR SAUNDERS: Well, if your Honour is indicating your Honour is considering a custodial sentence, I would submit that again that because of my client's subjectives. Because of my client - I rely on the same submissions in respect of my client's subjectives and her part in this overall offending. I would submit that the court could still show a form of leniency.

If your Honour is to impose a custodial sentence, of course your Honour has made that assumption that no other alternative is available. Your Honour (inaudible). In my submission leniency could be demonstrated through imposing a suspended sentence on this occasion. Again that would (inaudible) my client's ongoing good behaviour for a period of time because it's quite clear given her age - she's not a young woman.

Given her age this is clearly an aberration of character and clearly come about by a relatively unique factual matrix and circumstances. In my submission the community nor my client is served best by pleading this and would be to put this person in custody with an actual term of incarceration particularly in circumstances she has a child and she has another one due in one month's time.

In my submission the community is served best by her remaining in the community. And that in my submission the court could show that leniency and that would be open to the court.

• [51] Making due allowance for the fact that those submissions were made during the course of sentencing proceedings in a busy court of summary jurisdiction, they are largely unremarkable. During the course of this appeal, counsel for the appellant sought to tender a letter from defence counsel who appeared in the sentencing proceedings. That letter was received into evidence, subject to the qualification described above concerning the objective nature of the inquiry. That letter discloses the following relevant matters:

(a) The plea and sentencing proceedings had been listed for hearing in Wadeye because the appellant had previously failed to appear in Darwin and the Northern Territory Legal Aid Commission had experienced difficulties making contact with her.

(b) The pleas of guilty had been negotiated beforehand by other legal aid practitioners. It is apparent from the transcript of the sentencing proceedings that the basis of the resolution was that a circumstance of aggravation involving an offensive weapon would be withdrawn from the unlawful entry charge, and that the plea of guilty on the unlawfully cause harm charge would be accepted in satisfaction of a number of other charges.

(c) On arrival in Wadeye defence counsel had no "proper place" to get organised and confer with clients prior to the commencement of court. Despite that difficulty, defence counsel did confer with the appellant and advised her that there was a risk she would be sentenced to imprisonment. However, he did not think that a 30-year-old female first offender would be sentenced to imprisonment for this offending. During the course of defence counsel's conference with the appellant, she attempted to justify the behaviour on her part which constituted the offending.

(d) Defence counsel states that he misjudged the objective seriousness of the offending, and failed to appreciate the mandatory sentencing regime for aggravated property offences (which is discussed further below). That misjudgment led to the submission that a good behaviour bond would be an appropriate sentence.

(e) When the sentencing judge indicated that a sentence of actual imprisonment was likely, defence counsel says that he "could have applied for an adjournment" and requested a supervision assessment and gathered further material in mitigation.

• [52] As might be expected, that account of subjective experience and consideration adds little or nothing to the objective assessment of whether a miscarriage of justice took place in these circumstances. Counsel for the appellant has identified nine matters which are said to be failings on the part of defence counsel during the course of the sentencing proceedings.
• [53] First, criticism was made of defence counsel's answer in response to a question from the sentencing judge at the commencement of the day's proceedings as to whether there were any matters ready to proceed. That answer was:[25]

Yes. I haven't had time to fully prepare but I think I'd be able to do it on my feet. That's the matter of Bianamu.

• [54] While that statement was not one to inspire confidence, defence counsel's state of preparedness is addressed in the letter which was tendered by counsel for the appellant in these proceedings. That is, the plea and the facts had previously been negotiated by other practitioners in his service, and he had opportunity to confer with the appellant prior to the commencement of proceedings. The concept of full preparation in this context is a rather open-ended one, and it is to be assumed that counsel would have sought an adjournment if he was not in a position to proceed with the matter. It is necessary to point to some substantive matter which has caused a miscarriage of justice.
• [55] Second and third, criticism was made of defence counsel's categorisation of the unlawfully cause harm offence as a level 1 offence rather than a level 2 offence[26] for the purposes of Part 3, Division 6A of the Sentencing Act, and the failure to identify the aggravated unlawful entry as an "aggravated property offence"[27] for the purposes of that same Division.
• [56] The consequence of the categorisation of the unlawfully cause harm offence as a "level 2 offence" was that the court was required to impose a term of actual imprisonment which could not be wholly suspended. As is apparent from the relevant part of the transcript extracted above, the sentencing judge failed to appreciate that there was a mandatory minimum with application to the offence. That failure was of no account in circumstances where the sentencing judge clearly formed the view that the objective seriousness of the offending required a term of actual imprisonment.
• [57] The consequence of the categorisation of the aggravated unlawful entry as an "aggravated property offence" was that on the recording of a conviction the sentencing court was required to order the offender to serve a term of imprisonment, or to participate in an approved project under a community work order, unless there were "exceptional circumstances" in relation to the offence or the offender. Again, that categorisation was of no relevance in circumstances where the sentencing judge determined that a term of actual imprisonment was required. If in the conduct of the ordinary sentencing synthesis the court arrives at a sentence equal to or above the mandatory minimum, the existence of the mandatory minimum is irrelevant. Even in the absence of a statutory exception, that determination excludes by implication the existence of "exceptional circumstances" militating against the imposition of a term of actual imprisonment.
• [58] In any event, although defence counsel did not couch submissions in terms of "exceptional circumstances", submissions were made in relation to the appellant's age, lack of criminal history, good character, pregnancy and impending birth, and the particular circumstances of the offending. As the Court of Criminal Appeal has observed, to be "exceptional" a circumstance or combination of circumstances cannot be one that is regularly, or routinely, or normally encountered.[28] By way of example, good character, youth and an early plea, even in combination, do not constitute "exceptional circumstances" in the relevant sense. Similarly, the fact that an accused has an entirely unblemished record quite clearly cannot, in and of itself, constitute "exceptional circumstances" given that the mandatory sentencing regime has express application to first offenders.
• [59] As the Court of Criminal Appeal stated in Duncan, mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances for the purpose of the legislation.[29] Having regard to the whole of the circumstances of this case, it cannot be said that defence counsel's failure to address submissions expressly to "exceptional circumstances" gave rise to a miscarriage of justice in the final result.
• [60] The fourth matter on which counsel for the appellant relies in asserting a miscarriage of justice is the failure on the part of defence counsel "to make submissions for aggregate penalty for concurrency to consider one course of conduct, totality and mitigating sentencing considerations". That contention should be rejected for the reasons already given in dealing with those assertions of specific error concerning cumulation and totality.
• [61] Fifth, it is asserted that in "pitching for a good behaviour bond" defence counsel demonstrated a failure to appreciate the seriousness of the offences committed by the appellant. There is nothing unusual in a divergence between defence counsel's submission and a sentencing court's assessment as to the objective seriousness of offending. The question is whether that divergence gave rise to a miscarriage of justice. As is apparent from the submissions on plea which are extracted above, when the sentencing judge put defence counsel on notice that a good behaviour bond would not be a proportionate disposition, defence counsel submitted that a wholly suspended sentence to imprisonment was within range having regard to the appellant's subjective circumstances. That is, of course, the same submission concerning disposition which counsel for the appellant puts in this appeal.
• [62] Sixth, it is asserted that defence counsel failed "to agitate for an adjournment for an Assessment Report to be obtained as to [the appellant's] suitability for home detention and its availability at Belyuen". That contention should be rejected for the reasons already given in dealing with the assertion of specific error concerning home detention.
• [63] Seventh, it is asserted that defence counsel failed in "not agitating for an adjournment for an assessment as to [the appellant's] suitability for a supervised suspended sentence". That contention should be rejected for the reasons already given in dealing with the assertion of specific error concerning the failure to make an order suspending sentence subject to supervision.
• [64] Eighth, it is asserted that defence counsel failed "to apply for an adjournment to obtain further material (character references; medical reports)". That contention should be rejected for the reasons already given in dealing with the ground of appeal asserting that further material in relation to the appellant's subjective circumstances demonstrates manifest excess.
• [65] Ninth, it is asserted that defence counsel failed "to seek instructions to seek an adjournment for [the appellant] to make alternative arrangements for her child or seek medical material pertinent to the detriment if any imprisonment may cause or otherwise to the defendant's health or to the health of her child's (sic)". This assertion is speculative. As matters transpired, the appellant went on to give birth in prison without any apparent detriment to her health or that of the child; counsel for the appellant has not identified any material which suggests such a detriment presenting at the time of sentence; and there is no basis on which to conclude that an application for an adjournment of that nature would have succeeded, or that it would have had any bearing on the sentence ultimately imposed.
• [66] Counsel for the appellant's overarching submission under this ground of appeal is that the appellant's legal representation during the course of the sentencing proceedings was so inadequate and that she was denied procedural fairness and the right to be sentenced according to law. For the reasons I have attempted to describe, I am unable to accede to that proposition.
• [67] The principles outlined by this Court in Putti v Simpson[30] no doubt remain relevant today. That is, it is the responsibility of defence counsel to ensure all necessary submissions and evidence in mitigation of penalty are placed before the court; and a "firm application" for an adjournment should be made in circumstances where defence counsel considers it is necessary to obtain some form of pre-sentence report. However, the circumstances of that case were quite different. The facts indicated real grounds for apprehending that the offender committed the offences while in a disturbed psychiatric state. Defence counsel made "the most fragmentary submissions" which contained "little of relevance to sentence". The omissions included no information as to the offender's age, early life and education, or work and family history. Having regard to the sentencing submissions extracted above, the same criticisms cannot be levelled in this case.

• [68] I turn finally to deal with the assertion that the sentence imposed was manifestly excessive even in the absence of some specific and identifiable error. In order to succeed on this ground the appellant must establish that the sentence was clearly and obviously excessive. As the Court of Criminal Appeal has stated on many occasions, and recently reiterated:[31]

... a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is because the discretion which the law commits to sentencing judges is of vital importance in the administration of the system of criminal justice [Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]]. An appellate court is bound to allow to sentencing judges "as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies" [Markarian v The Queen (2005) 228 CLR 357 at 371].

• [69] The salient features of this offending demonstrate its high level of objective seriousness. The appellant went in company with six other people, three of them male, with the purpose of terrorising and assaulting the two victims. The offending was deliberate and premeditated. The appellant's motivation was revenge. The offence of aggravated unlawful entry involved an entry by force into a private dwelling house at night-time. That house was occupied by the two female victims who were the target of the attack and two children. After forcing entry, members of the group engaged in wanton destruction of property in the house. The group then forced their way into the bedroom in which the victims and the children were cowering. The attack was no doubt terrifying for the victims, and its impact on the children would likely have been even greater. The appellant's assault on the victim resulted in her sustaining facial injuries and a broken arm for which the appellant bore criminal responsibility. As counsel for the respondent noted, the appellant does not take issue with any of those findings or incidents.
• [70] There is no tariff for either of these offences. Having regard to the circumstances described in the preceding paragraph, they were very arguably at the upper end of seriousness for offending of this nature. Despite that, the head sentences ultimately fixed resolved to one-quarter of the maximum penalty for the unlawful entry offence and one-fifth of the maximum penalty for the cause harm offence. While that analysis is not determinative, it does inform the assessment of whether the sentences imposed were manifestly excessive having regard to where these offences lay on the spectrum of objective seriousness.
• [71] The principle of proportionality required the fixing of sentences which were proportionate to the gravity and totality of the offending. The sentencing judge in this case clearly had regard to mitigating subjective factors in the determination of sentence. However, those mitigating subjective factors could not be allowed to lead to a sentence which was disproportionate to the appellant's moral culpability. The sentences imposed ultimately had to reflect both subjective factors and the objective seriousness of the offences committed, and in striking the balance there had to be reasonable proportionality between the sentence passed and the objective gravity of the offences.[32]
• [72] Having regard to those principles, it cannot be said that either the head sentence of 12 months imposed for each offence, or the total effective period of imprisonment of 18 months, or the suspension of that period after the appellant had served six months, was clearly and obviously, and not just arguably, excessive. If anything, given the circumstances of the offending it would be arguable that the disposition of a wholly suspended sentence for which counsel for the appellant presses, and for which defence counsel pressed during the sentencing proceedings, would have been manifestly inadequate.

[1] Transcript of Proceedings, 9 October 2019 (Transcript) at 14.

[2] Sentencing Act, ss 78 CA and78 DA.

[3] Hankin v The Queen [2009] NTCCA 11; (2009) 25 NTLR 110 at [72]- [79], [113]-[121]; Hampton v The Queen [2008] NTCCA 5 at [35].

[4] Carroll v The Queen [2011] NTCCA 6; (2011) 29 NTLR 106 at [42]- [44].

[5] Thomas v The Queen [2017] NTCCA 4 at [35].

[6] See, for example, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 341.

[7] Anzac v Flynn [2019] NTSC 8 at [50].

[11] McCarthy v Trenerry [1999] NTSC 29 at [20], cited in Marshall v Court [2013] NTSC 75 at [12].

[12] Seears v McNulty (1987) 89 FLR 154 at 160.

[13] Leaney v Bell [1992] NTSC 63; (1992) 108 FLR 360 at 368.

[14] It should be noted in this respect that the material put before the Court on appeal does not establish that the appellant would necessarily be separated from the child if returned to prison. An email communication between counsel for the appellant and Northern Territory Correctional Services discloses the following matters. The legislation allows children up to the age of 5 to be housed in custody. The standard operating procedure for Sector 4 is that only children up to the age of two years will be housed in custody. Approval for arrangements of that nature are granted by the Commissioner for Correctional Services on recommendation from the Mother's and Children's Committee. At the time of that communication the circumstances were complicated by COVID-19 restrictions.

[17] An exception to this general principle may be found in the decision of the High Court in Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202. That exception applies where the question is whether incorrect advice from counsel was material to a forensic choice which was reserved to the accused to make personally, such as the choice whether or not to give evidence. In those circumstances, the inquiry looks to the subjective effect of the incorrect advice on the accused's decision.

[18] See, for example, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [29], [31].

[19] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [27].

[20] See, for example, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [74].

[21] Yi Hong Puan v R [2009] NSWCCA 194 at [55].

[22] R v Abbott (1984) 17 A Crim R 355; R v McKenna (unreported, NSWCCA, 16 October 1992).

[23] Lambert v R [2015] NSWCCA 22. That case involved the breach and revocation of a good behaviour bond, and a particular provision of the Crimes (Sentencing Procedure) Act 1999 (NSW) providing for the options available in the event of revocation.

[26] The term "level 2 offence" is defined in s 78CA(4) of the Sentencing Act to include an offence against s 186 of the Criminal Code if the victim suffers physical harm as a result of the offence.

[27] The term "aggravated property offence" is defined in s 3 of the Sentencing Act to include an offence against s 213 of the Criminal Code.

[28] The Queen v Duncan [2015] NTCCA 2; (2015) 34 NTLR 201 at [25].

[29] The Queen v Duncan [2015] NTCCA 2; (2015) 34 NTLR 201 at [27].

[30] Putti v Simpson [1899] ArgusLawRp 144; (1975) 6 ALR 47.

[31] Norris v The Queen [2020] NTCCA 8 at [29].

[32] See R v Scott [2005] NSWCCA 152 at [15]; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].