SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2014] ACTSC 211

1. The appeal is allowed and the Magistrates Court orders are set aside.
2. The appellant is convicted and ordered to sign a good behaviour undertaking, subject only to the core conditions, for 12 months.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - appellant convicted and sentenced for assault occasioning actual bodily harm - sentence of three months imprisonment to be fully suspended - appellant 18 years old, no criminal history, respected member of community, history of anxiety and depression due to facial deformity due to accident , character references - sentence said to be manifestly excessive - Magistrate relied on sentence imposed in Supreme Court for two counts of assault occasioning actual bodily harm committed by intoxicated offender with prior criminal history who used weapons including knife to inflict quite serious injuries on two victims - sentence manifestly excessive - appeal upheld - appellant convicted and good behaviour order made.

Crimes (Sentencing) Act 2005 (ACT), s 17

Crimes (Sentence Administration) Act 2005 (ACT)

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

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306

R v Evans [2012] ACTSC, Refshauge J, 16 February 2012

R v Mauger [2012] NSWCCA 51

1. This is an appeal against a sentence of three months imprisonment imposed in the Magistrates Court after a plea of guilty to an offence of assault occasioning actual bodily harm.

2. The offence was committed on 10 May 2013 at the Canberra Centre food court, where the appellant assaulted a former friend whom she believed had interfered in the appellant's relationship with a boyfriend. The assault consisted of punching the victim in the back of the head with a closed fist, and then kicking and punching the victim after she had fallen to the ground. The consequences of the assault seem to have consisted of:

(a) pain to the back of the victim's head;

(b) a swollen lip; and

(c) the opening of a scab on the victim's knee.

3. I note first that photographs tendered in the Magistrates Court show what is clearly a scab and therefore susceptible to being opened by a reasonably minor blow, but it was described in the Magistrates Court and in the police statement as a scar, which one might think would take a considerably more significant blow to open up.

4. I also note that it is by no means clear whether the actual bodily harm relied on was only the re-opening of the scab or whether it included the swollen lip. Either way, the harm was in my view towards the lower end of what could or would commonly be charged as actual bodily harm.

5. At the time of the offence, the appellant was 18 and a half years old. She had no criminal record. She had apologised to the victim in writing.

6. She appears to have been a respected member of the community, and in particular of the local Macedonian community. She has worked at The Canberra Hospital and in retail positions, and at the time she was sentenced had begun studying business management at CIT. She provided a number of positive character references, including from her parish priest, two of her employers, and several family friends.

7. The appellant had also provided reports from two doctors detailing an ongoing history of depression and anxiety, significantly related to an injury she suffered to her nose at the age of six which left her with a deformed nose, despite several attempts at surgical repair, until slightly before the offence, when further surgery apparently resolved the problem.

8. The appeal papers specified a number of grounds for the appeal, but at the hearing counsel focused on the claim that the sentence was manifestly excessive and accepted that the other matters mentioned might be particulars of that excess.

9. In the High Court case of Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, the plurality explained the concept of manifest excess in relation to sentences, saying:

1. As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error".
2. The Court of Criminal Appeal also said that "manifest error is fundamentally intuitive". That is not right. No doubt, as the Court went on to say, manifest error "arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it". But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
3. The applicants' submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge's findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion. [citations omitted]

10. The respondent referred me to the formulation of the test of manifest excess by Maxwell P of the Supreme Court of Victoria (Court of Appeal) (R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306 at 309; [14]) as "that no reasonable sentencing judge could have imposed" the sentence concerned. I note first that although the High Court has had ample opportunity to adopt this formulation, which seems to originate in the administrative law area, it has so far resisted the temptation. I also note that his Honour's formulation of the test, to the extent that it requires an appeal court to identify the sentencing officer as unreasonable rather than his or her decision as simply wrong, may have the possibly unintended effect of imposing an additional and unjustifiable inhibition on an appeal court examining a claim of manifest excess or inadequacy. In my view, it is a formulation appropriately avoided in favour of the High Court explanations of how such claims should be dealt with.

(a) the nature of the offence as already described;

(b) the offender's personal circumstances as also noted;

(c) the results of a search of the ACT sentencing database showing that in the Magistrates Court since July 2012, fewer than half of offenders between the age of 18 and 20 years who had committed a single assault occasioning actual bodily harm offence were sentenced to any prison term, suspended or otherwise, but unfortunately not showing details of the prior histories or personal circumstances of those offenders; and

(d) finally, my own experience of sentencing for this offence on the rare occasions when the offence is dealt with in the Supreme Court;

I am satisfied that this sentence was manifestly excessive.

12. Such a finding describes the conclusion that somehow the sentencing process has gone wrong, although a specific error has not been identified. Certainly it was not apparent from the transcript of the proceedings in the Magistrates Court that his Honour had fallen into any of the standard and obvious errors that may infect a sentencing process.

13. However, a clue to his Honour's sentencing, and possibly in fact a specific sentencing error, emerged when consideration was given to the decision apparently referred to by his Honour as providing some kind of benchmark for the sentencing of the appellant in this case. His Honour referred - although this decision was not apparently drawn to his attention by either party to the Magistrates Court proceedings - to the decision of R v Evans [2012] ACTSC, Refshauge J, 16 February 2012 (Evans), a decision published in February 2012, in which Refshauge J made some general comments about problems of violence in the community in the context of sentencing for an assault occasioning actual bodily harm. The Magistrate sentencing the appellant in this case went on:

That case, [Refshauge J] said, was a midrange or medium level, as to objective seriousness, although in that case a knife was involved; that is, a weapon was involved, and Mr [Salmon] has [impressed] upon me that a weapon in this case wasn't involved, but there is then the counterbalance to that, is that this wasn't just simply a single punch. This was an ongoing engagement of violence; even when the victim was on the ground, you continued to deliver violence to her.

In that case [Evans] his Honour sentenced the person to four months' imprisonment, although of course he'd already been in remand, in custody, for four months, no actual time was required.

14. Counsel for the appellant handed up the decision in Evans. It involved an offender who had been found guilty by a jury of two charges of assault occasioning actual bodily harm, involving two separate victims in a single incident. The offender and his victims were intoxicated and, in the course of an altercation, the offender stabbed one of the victims with a knife and hit the other victim with a piece of wood. The injuries were described as follows:

Mr Price suffered injuries where there was a stab wound and a small laceration to his liver on the right side (but no injury to his lungs or heart), some lacerations on the top of his head, a laceration to the base of his thumb, a small laceration to the left side of his nose and abrasions to his right foot. There was some fracture of the bones to the right foot and there was damage to his eye socket. He had to undergo some surgery but appears to have recovered from that.

Mr King suffered an injury to his foot, a superficial abrasion to his left forearm and a fracture to the shaft of his right fifth metacarpal. He also underwent surgery, but it was expected that he would make a full and complete recovery from the injury.

15. Mr Evans, who was 39, had a criminal history involving nine offences, six of them being traffic matters and the other three being minor offences of the kind that are often referred to as street or police offences. This is not a particularly serious record, but it contrasts significantly with that of the appellant. Refshauge J gave Mr Evans some credit for his good character, although presumably no particular leniency for his youth. His Honour in sentencing pointed out that the use of knives is abhorrent to the community and will usually lead to a significant increase in sentence.

16. Mr Evans had been in custody for nearly five months. He was sentenced on each charge to time served, the two sentences therefore running concurrently.

17. The sentencing Magistrate, having referred at some length to the matter of Evans, went on to say that a good behaviour order would not properly reflect the circumstances of the appellant's offending, nor the nature of the violent act that she inflicted on another person. He then imposed a sentence that, before the plea of guilty discount, would have been almost as long as the sentence imposed on Mr Evans for two separate albeit nearly contemporaneous assaults involving in one case the use of a knife and in both cases quite serious injuries.

18. I should point out at this stage that the fact that Mr Evans had served the five months of his sentence while the sentence imposed on the appellant was fully suspended does not make any significant difference in the consideration of whether the sentence was manifestly excessive. There is authority for the proposition that a sentence of imprisonment should not be imposed unless the sentencing officer is satisfied that it would be appropriate for the whole of that sentence to be served in full-time custody, even if the intention is to suspend the sentence (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 346 - 347; [75] - [80], Kirby J). Accordingly, a finding that the sentence of three months imprisonment is manifestly excessive reflects a conclusion that it is inappropriate for this appellant to be liable to serve three months in full-time custody for the offence concerned.

19. As noted, and for the reasons already specified, I am satisfied that the sentence imposed on the appellant was manifestly excessive, and for that reason, will uphold the appeal and re-sentence the appellant. As also indicated, I consider that his Honour was led into imposing an excessive sentence by reliance on another sentencing process that was in multiple respects not comparable with the matter that was before him. It may be that such an approach could of itself be identified as a specific error, perhaps involving taking account of an irrelevant consideration, but I do not need to pursue that question at this stage.

20. Accordingly, the sentence appeal is upheld and the appellant will be re-sentenced.

21. My inclination is to impose simply a good behaviour order with the core conditions.

[At the beginning of the appeal hearing counsel for the appellant had said that there was no appeal against the conviction, and he did not argue that recording a conviction was manifestly excessive or otherwise erroneous. After the appeal was upheld and the sentence had been set aside, counsel sought to argue for the making of a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). His argument was based largely on the proposition stated in R v Mauger [2012] NSWCCA 51 at [37] that the imposition of a "bond" (the making of a good behaviour order in ACT terms) itself subjects the offender to "onerous consequences" if the good behaviour obligations thus imposed are not observed. Counsel conceded that there had been no submission made in the Magistrates Court about extenuating circumstances for the purposes of s 17 of the Crimes (Sentencing) Act, and that in effect there had only been reliance on the appellant's prior good character.]

22. My own assessment, as I indicated, of the position here was that an appropriate sentence would be a conviction and a good behaviour order. I have not heard from Mr Bevan anything that induces me to take that further down the scale to a non-conviction order. The things that influence me are:

(a) the absence of any claim of extenuating circumstances;

(b) the nature of the assault, which was not a single punch or push; it was an assault sustained over at least an extended number of seconds, possibly minutes, involving not just the blow to the back of the head but also kicking while the victim was on the ground; and

(c) the absence of any particular reason why in this case a non-conviction order ought to be considered having regard to the circumstances of the offence.

24. I have indicated I have upheld the appeal and set aside the orders of the Magistrates Court. I record a conviction on the charge of assault occasioning actual bodily harm and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months. The good behaviour order is subject to the core conditions only.

25. You will be given a written copy of that good behaviour order and it will be explained to you by the court officials and, I expect, by Mr Bevan, although presumably you know how good behaviour orders operate anyway.

26. In short, it means that for the next 12 months you need to keep out of trouble. If you commit another offence during the next 12 months you may find yourself back before this court to be re-sentenced for this current offence, the assault offence, as well as whatever happens to you for that new offence. I would say, however, that I do not expect to see you before the courts again.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.