[1990] HCA 18
LN v R [2020] NSWCCA 131
The Queen v De Simoni (1981) 147 CLR 383
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 18
LN v R [2020] NSWCCA 131
The Queen v De Simoni (1981) 147 CLR 383
Judgment (8 paragraphs)
[1]
Background facts
The facts relating to the offences were the subject of an Agreed Facts document, on which both the Crown and the applicant relied and upon which they had agreed. Those Agreed Facts were part of Exhibit A on sentence. The Agreed Facts were summarised by the learned sentencing judge.
The applicant and victim were in a domestic relationship between February and July 2017. After an argument, the applicant was told to leave the victim's premises and did so. He returned to the address on the evening of 9-10 July 2017, while the victim was absent and proceeded to cut up most of her clothes. He was charged with the offence of malicious damage in respect of this conduct, to which charge he pleaded guilty and was placed on a s 9 Bond for 18 months.
As a consequence of that offending, an AVO issued, which contained standard terms that the applicant was not to assault, threaten, stalk, harass or intimidate the victim, or damage any property belonging to her. At the victim's request, the AVO was amended to allow him to reside with her.
The relationship between the applicant and the victim resumed and they moved to a property at Eugene Street, Inverell. On or about 14 September 2017, the victim broke off the relationship and the applicant moved out of the residence. He subsequently called and sent text messages to the victim on numerous occasions in order to have the relationship recommence, but the victim consistently told him that it was over.
The applicant committed the following offences in or about September and October 2017 for which he was sentenced and to which this appeal relates.
Ebsworth v R [2020] NSWCCA 229 | Case summary | Zoe
On 24 September 2017, after the applicant had gone to the Eugene Street premises, an argument ensued and the Police attended and escorted the applicant out of the premises. He called the victim later that day. The victim told the applicant that he was not to come to her house. The applicant said he would return and "I'll just kill all you cunts in that house, eh, you want to be a cunt". [1]
On 28 September 2017, at about 10:55 PM, the applicant sent a text message to the victim in abusive and threatening terms. [2] The text message included significant expletives and was to the effect of threatening to attend the premises and to assault the victim. [3]
On 30 September 2017, the applicant entered the house, dead-bolted the door and once the victim was aware he was there, the victim was terrified. The applicant told the victim that he was "coming for you; ya mother fucker". The applicant slapped and punched the victim to the face a number of times.
The victim fell to the kitchen floor and, at that point, the applicant kicked her twice to the head. The victim stood up, whereupon the applicant choked her by the neck with both hands. The victim could not talk. The applicant lifted the victim off her feet, whilst still choking, causing severe red finger mark bruising to her throat area. [4]
The applicant then stopped choking the victim. The applicant went to the knife block, near the kitchen sink, and obtained a stainless steel butchers' knife, which was about 30 cm long, held it towards her, about 30 cm away from her, and yelled:
"I'm gunna kill ya". [5]
The victim was able to placate the applicant somewhat, but the applicant then took an unopened 750 ml bottle of Moscato from the lounge room table and motioned to swing it at the victim's head. The bottle did not make contact and the applicant placed it back on the table.
At that point, the applicant heard someone arrive. That someone was the victim's cousin, who arrived to check on the victim's welfare. The applicant turned off all the lights and the house was in darkness. The victim convinced the applicant to allow her to go outside to have a cigarette, but he followed her outside.
The victim ran to her cousin's vehicle. The applicant chased after her with the knife and, after jumping onto the vehicle for a time, and jumping down again, the applicant grabbed the victim's hair with one hand and punched her to the face, at least four times, with the other hand, and dragged the victim down the street by her hair and shoulders. That process ripped the victim's T-shirt from her body.
During the course of these events, the applicant placed the knife about 10 cm from the victim's stomach. The victim tried to grab the knife, but the applicant pulled it away, causing minor lacerations to the victim's hand, which started bleeding.
The victim's cousin obtained a chair from the front veranda of the house; ran back to the victim; and told the applicant to let the victim go, all performed while taking hold of the victim with one hand, and keeping the chair raised with the other hand. The applicant responded by pointing the knife directly at the cousin, telling her: "sis, I'll stab you". [6]
The applicant then held the knife to the back of the victim's head, shouting: "I'm going to stab you. I'm going to fucking kill you. I told ya I was going to get ya, slut". The cousin was forced to release her grip on the victim. The applicant then kicked the victim hard to her face with his right leg, before running away, carrying the knife.
Emergency services were called and Police and Paramedics attended. The victim was taken to hospital by ambulance and treated. The victim suffered injuries to many parts of the body, including her head, cheeks, throat area, upper body, hands and left leg. Her injuries are detailed in the Agreed Facts. [7]
On 2 October 2017, the applicant sent the victim a number of threatening text messages. These were sent between 3:35 AM and 3:57 AM. The effect of the messages was that the applicant was about to come to the victim's house to shoot her. One passage read:
"me and you are going to hell mother fucker". [8]
On 3 October 2017, the applicant sent further abusive and threatening text messages and left a number of voicemail messages. Again, these messages were to the effect that he was coming to shoot the victim, accusing her of being "stubborn" and threatening to shoot everyone in her family, including children. [9]
During the course of the foregoing messages, the applicant indicated that he expected to go to gaol for 6 to 8 years. One of the voice messages included the following passage:
"I'll kill every one of you mother fuckers. I'll shoot youse all in the head you dirty stinkin' cunts. I'll make all you mother fuckers bow down to me tonight …". [10]
On 15 October 2017, police attended an address at Inverell, after receiving information that the applicant was staying there. Police intended to arrest him. However, when the applicant saw Police, the applicant fled, by jumping out of the house through a window. He then climbed onto the next door neighbour's roof, causing $558 worth of damage to their television aerial and the fascia board to which the aerial was attached and which was located on the side of the house. [11] The applicant jumped off the roof and was subsequently arrested.
[2]
Subjective features
Before the District Court on Sentence was Exhibit 1 which was tendered by the applicant and related to his subjective circumstances. Exhibit 1 included a psychological report of Andrew Fordyce, of 23 April 2019. Much of what follows is taken from that psychological report.
The applicant was 28 years of age at the time of sentencing. He is of Aboriginal heritage; an only child to his parents, but part of a wider extended family. He was raised by his grandmother in his younger years. He was well provided for under her care, but from around the age of 12 years, he lived with his mother in a neighbourhood with significant psychosocial dysfunction, where alcohol and drug abuse were common.
During that latter stage, the applicant was exposed to those conditions and was also exposed to the use of violence to resolve interpersonal conflict. The applicant had unstable accommodation; left school after Year 10; and had been employed in various capacities, intermittently, until he was 26 years' old. In the psychological report, Andrew Fordyce noted that the applicant "has had difficulty sustaining employment, seemingly as a result of his maintenance of a hedonistic lifestyle oriented around alcohol and drug use". [12]
The applicant has a number of prior entries in his criminal record. Those prior offences include break, enter and steal; and aggravated break enter and steal, each of which were prosecuted in the Children's Court in 2007. The criminal record also includes: assault occasioning actual bodily harm; and common assault and property damage, each of which offences were prosecuted in the Children's Court in 2008 and 2009 respectively. The applicant's criminal record also discloses offences of: affray, prosecuted in the Local Court in 2010; common assault prosecuted in the Local Court in 2013; and destroy or damage property prosecuted in the Inverell Local Court on 27 July 2017, for which last mentioned matter the applicant received an 18 month good behaviour bond, pursuant to the terms of s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This is a matter to which earlier reference has been made.
The applicant breached the bond by the current offending. He also breached the AVO made at the same time, which was framed to protect the victim, whilst allowing him to live with her. The applicant did not give evidence in the sentencing proceedings. It is necessary to deal with the submissions now before the Court.
[3]
Submissions on Ground 1: Uncharged pre-offence conduct
The applicant submits that the sentencing judge erred by taking into account conduct which was not the conduct relied upon in support of the offence. The applicant points to the charge proffered and submits that the conduct of the applicant that gives rise to that charge is the choking incident, which was the particular relied upon in the Agreed Facts as the physical element of the assault occasioning actual bodily harm in relation to Count 1.
It is necessary to look at the judge's comments. His Honour said:
"The assault which occasioned the bodily harm depicted in the various photographs, exhibit B, commenced in the kitchen (para 13 of the facts) and continued into the street (para 26). Having regard to time, place and circumstance, the assault should be viewed as a continuing one, punctuated by the use of a knife on two occasions. The violence inflicted on the complainant featured (1) punching the complainant to the face a number of times; (2) kicking her in the head while she was on the floor in the kitchen; (3) choking her while lifting the victim up off the ground by her neck; (4) grabbing her by the hair and dragging her down the street; (5) kicking the complainant in the face. Included in that conduct were threats to kill the complainant with a knife (count 1) and threatening to stab the victim's cousin, Wesley, when she came to intervene (count 2)." [13]
According to the applicant, the effect of this purported error is that the applicant has been sentenced in relation to Count 1 for quite extensive conduct, which was not the subject of the charge.
In response, the Crown submits that the paragraph extracted above, upon which the applicant relies, has been taken by the applicant out of context and the applicant has misconstrued the meaning and intention of the passage.
The Crown submits that his Honour was doing no more than noting that the offences arose from the applicant's attack on the victim in her home on 30 September 2017 and were part of an ongoing course of criminal offending on that day. As a consequence, his Honour went on to comment:
"Counts 1, 2 and 3 form a connected series of events and in the ultimate aggregate sentence there must be a significant degree of concurrence in the indicative sentences." [14]
In other words, the Crown submits that the passage about which the applicant complained, is a passage which has led his Honour into acting in a manner that was not adverse to the applicant's interests, but, rather, as a basis for the level of concurrence that his Honour determined.
Secondly, the Crown submits that there was no objection to the Agreed Facts from which this account was extracted and which described Count 1 as an assault commencing in the kitchen and concluding with the choking.
Further, the Crown submits that there is no challenge to his Honour's finding that Count 1 was within the mid-range of objective seriousness and, even if there were such a challenge, it is unlikely that it would be successful, in light of the seriousness of the applicant's conduct.
Lastly, on this ground, the Crown submits that the indicative sentence in relation to Count 1 is particularly lenient, and would be overly lenient, if the sentencing judge were purporting to sentence for all of the conduct other than the choking.
[4]
Consideration of Ground 1
The Agreed Facts at [13] and [14] are in the following terms:
"13. The accused stated, 'I told you I was coming for you, ya motherfucker'. He walked directly over to the complainant and commenced slapping and punching the complainant to the face a number of times. Due to this assault, the complainant fell to the kitchen floor. The accused then kicked the complainant twice to her head.
14. The complainant stood up. The accused took hold of the complainant's neck from the front with both hands in a chokehold grip. The complainant could not talk due to the neck compression. The accused then lifted the complainant up off her feet whilst still choking her, causing severe red bruising in the shape of finger marks to her throat area (Count 1 - aggravated break and enter (persons present), commit serious indictable offence (assault occasioning actual bodily harm); sequence 10 related offence - breach AVO)."
The learned sentencing judge who received Submissions on Sentence on 14 May 2019 and, after receiving sentence submissions, adjourned the sentencing to 12 noon on the next day, 15 May 2019, in order to deal with a number of other matters in the afternoon of 14 May and the morning of 15 May, then proceeded to impose a sentence and provide reasons for the imposition of the sentence orally. It is no criticism of his Honour, who is an extremely experienced criminal lawyer, that the complaint in this ground is essentially a complaint that his Honour repeated or summarised that which is contained in the foregoing extracted section of the Agreed Facts.
His Honour's comments and reasons accurately depict the circumstances that led to the offending with which the applicant was charged. His Honour took that conduct into account in order to determine that there was, in reality, one course of conduct on 30 September 2017, which included the choking incident and the two knife charges, in order to allow for the significant concurrency implemented by the aggregate sentence.
To have omitted the preceding conduct of the applicant from the account of the offences would have been to misrepresent that which had occurred in the victim's residence on the day.
The sentencing judge expressly referred to the conduct that gave rise to Count 1. [15] Nevertheless, it was appropriate for his Honour to recite the events which gave rise to the motivation for the offence and provided the context for the assault that was charged. In my view, the only manner in which the sentencing judge has taken into account the conduct surrounding the choking is to take it into account in the applicant's favour for the purpose of showing one course of conduct and allowing for a much more lenient sentence on account of the degree of totality than would otherwise have been necessary. As to the motivation, the sentencing judge was correct to deal with the prior occurrences, because it went to whether there was planning and premeditation, rather than a solely opportunistic offence.
Lastly, the indicative sentence does not indicate that the judge has in any way applied wrong principle or dealt with the offence inappropriately.
[5]
Submissions & consideration of Ground 2: De Simoni
The applicant submits that the sentencing judge considered that the applicant had a continuing state of mind from 24 September 2017 until 30 September 2017, being a state of mind to kill or to inflict really serious injury upon the victim and the events on 30 September 2017 were "following through" on those threats to kill or to inflict serious injury. [16]
Not only was the applicant following through on threats to kill or cause really serious injury to the victim, according to the sentencing judge, on the applicant's submissions, the applicant was once more threatening to kill the complainant at the time of the Count 1 offence. The applicant submits that, by taking these factors into consideration, the sentencing judge was sentencing the applicant in relation to a more serious, un-charged offence and refers to the provisions of s 29 of the Crimes Act 1900 (NSW) and the provisions of s 37(2) of the Crimes Act.
Relevantly s 29 of the Crimes Act creates an offence in circumstances where a person attempts to strangle any person with the intent of committing murder. That offence carries a maximum penalty of 25 years' imprisonment.
The difficulty in those circumstances, in terms of the submission of the applicant, is that the choking of the victim, which was inflicted by the applicant, would have to have been done, itself, for the purpose of killing the victim. The fact and circumstance that murder may be committed in circumstances where the offender has an intention to cause grievous bodily harm does not translate to an offence under s 29 of the Crimes Act.
If a choking occurs, which choking does not kill the victim, the offender does not commit an offence under s 29, unless there was an intention to kill. The sentencing judge referred to threats to kill or inflict grievous bodily harm for which the choking was an act following through on those threats. But the sentencing judge did not conclude that the "following through" by choking was done with an intent to kill. It could have been done to inflict really serious injury. The requirement in s 29 of the Crimes Act to commit an act of strangling "with intent … to commit murder", requires the offender to have an intention to kill; not one that may be to inflict really serious injury. On the other hand, if a strangulation occurs which does, in fact, cause death, then an intention to cause really serious injury is sufficient to give rise to the crime of murder.
Otherwise, the applicant relies upon an offence under s 37(2) of the Crimes Act. That provision creates an offence, relevantly, for a person to choke another and render the person unconscious or incapable of resistance and to do so with the intention of enabling the offender to commit another indictable offence. Again, the maximum penalty under s 37(2) of the Crimes Act is 25 years' imprisonment.
The Court enquired of the applicant's Counsel as to what the "other offence" was that was intended to have been committed, the reply to which was the offence of "intimidation".
Nothing that the sentencing judge noted would suggest that any part of the consideration in sentencing the applicant was the proposition that the choking was done for the purpose of committing another offence. If, as is suggested by the applicant, the sentencing judge has taken into account the choking as part of or giving effect to his continued intimidation of the victim, such does not amount to an offence described by s 37(2) of the Crimes Act.
The choking has not occurred for the purpose of or with the intention of enabling the applicant to commit another indictable offence. Rather, on the applicant's submission, the charged offence was part of an overarching offence of intimidation. The choking did not occur in order to enable the applicant to commit the act of intimidation. If anything, it was part of an act of intimidation and/or gave effect to previous intimidation.
The prohibition based upon the principles established by the High Court in De Simoni [17] should not be overstated. The principles disentitle a sentencing court from inflicting punishment or aggravating an offence for which a sentence is to be imposed, because conduct has occurred which otherwise would be a more serious offence.
The most obvious example is circumstances where a sentencing court takes into account damage inflicted on a victim in circumstances where that damage is the occasioning of actual bodily harm, but the offence for which the sentencing court is to impose a sentence is common assault. In those circumstances, the level of actual damage is an aggravating feature, which, if damage did occur of that kind, would give rise to the offence of assault occasioning actual bodily harm and, therefore, cannot be used to aggravate the seriousness of an offence of common assault.
Nothing in the circumstances of this case give rise to the principles described in De Simoni. It is apposite to recite the comments of Basten JA in LN v R [18] in which his Honour said:
"[39] More directly relevant was The Queen v De Simoni, in which the High Court noted that 'no one should be punished for an offence of which he has not been convicted.' Where a circumstance of aggravation engaged a more serious offence than that with which the accused was charged, a number of differently expressed conclusions followed. These were that the circumstance, (i) did not render the offender liable to a greater punishment, (ii) the circumstance 'could not be relied upon for purposes of sentencing if those circumstances could have made the subject of a distinct charge'; and (iii) the judge could not inflict a penalty on the basis of that circumstance, more severe than would otherwise have been imposed.
[40] The reasoning in De Simoni concerning an uncharged more serious offence should not be applied without qualification to sentencing for the most serious offence, only because the surrounding circumstances and events, although capable of constituting separate offences, have not been the subject of separate charges. It would, of course, be an error to sentence the person for an uncharged offence, but it does not follow that conduct which might constitute an uncharged offence cannot be taken into account in sentencing for a more serious offence, in this case murder. Indeed, evidence of conduct which might be relevant to sentence might be irrelevant to the elements of the offence; it is provable on sentence as with any other (non-criminal) conduct. Were it otherwise, a prosecutor would be forced to include separate charges in the indictment for each of the alleged assaults sought to be relied upon on sentence. The administration of justice would not be advanced by such an approach." (Footnotes omitted.)
The attempt by Counsel for the applicant to engineer, from the description of the context and motivation of the offender, a different and more serious offence is without merit. His Honour has made no such error. His Honour has described, on the one hand, the motivation, premeditation and planning of the offender and, on the other hand, the context of the offence. This comment applies to both Grounds 1 and 2 of this appeal. This ground must fail.
[6]
Ground 4: Error in the assessment of objective seriousness by erroneous findings referred to in Grounds 1 and 2
It is unnecessary to recite all of the submissions of the applicant in relation to this ground. It is sufficient to recount that, as the ground of appeal itself makes clear, the error in the assessment of objective seriousness depends upon what the applicant says are erroneous findings to which the applicant has referred in Grounds 1 and 2. I have determined that the findings in Grounds 1 and 2 are not erroneous. As a consequence, this ground is not made out.
[7]
Conclusion
As earlier stated, the applicant did not press Ground 3 of the Amended Grounds of Appeal, namely that which referred to his Honour's use of or alleged misuse of the principles relating to amelioration arising from the deprived background of the applicant and described by the High Court in Bugmy v The Queen. [19] As a consequence, the Court should not deal with that ground.
The other grounds fail for the reasons already given. Notwithstanding that the grounds of appeal that have been pressed must fail, it is appropriate, in the circumstances, to grant leave to appeal and also to grant the extension of time that is necessary to allow the appeal to have been filed. In all the circumstances, I propose that the Court issue the following orders:
1. Extension of time granted to allow the Notice of Application for Leave to Appeal to be filed on 27 May 2020;
2. Leave to appeal granted;
3. Appeal dismissed.
PRICE J: I agree with Rothman J.
[8]
Endnotes
Form 1.1: Intimidation; sequence 1 related offence, Breach AVO.
Agreed Facts, at [9].
Form 1.2, Intimidation; sequence 2, related offence, Breach AVO
Count 1; Sequence 10, related offence, Breach AVO.
Count 2.
Count 3.
Agreed Facts, at [28].
Agreed Facts, at [30]. This text message is Form 1.3, Intimidation and Sequence 11, related offence, Breach AVO.
Agreed Facts, at [31].
Agreed Facts, at [31(viii)], Form 1.4, Intimidation and Sequence 21, related offence, Breach AVO.
Form 1.5; destroy/damage property.
Psychological Report of Andrew Fordyce, 23 April 2019, p 5.1.
Remarks on Sentence, at p 9.1.
Remarks on Sentence, at p 9.9.
Remarks on Sentence, at p 4.8.
Remarks on Sentence, at p 8.7.
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
LN v R [2020] NSWCCA 131 at [39]-[40].
Bugmy v R (1990) 169 CLR 525; [1990] HCA 18.
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Decision last updated: 11 September 2020
The applicant raises four grounds of appeal in his Amended Grounds, but did not press Ground 3. The grounds notified in the Amended Grounds are:
1. Ground 1: The sentencing judge erred by taking into account conduct which was not the conduct relied upon in support of the offence;
2. Ground 2: In relation to Count 1, the sentencing judge erred by taking into consideration a more serious offence contrary to the principles in The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31;
3. Ground 3 (Not Pressed): The sentencing judge erred by misapplying the principles referred to in Bugmy v R (1990) 169 CLR 525; [1990] HCA 18;
4. Ground 4: In relation to Count 1, the sentencing judge erred in relation to the finding of objective seriousness by making erroneous findings as referred to in Grounds 1 and 2.
The applicant lodged a Notice of Intention to appeal within time on 16 May 2019. That Notice of Intention was extended twice to expire on 20 April 2020. The Notice of Application for Leave to Appeal against Sentence was lodged electronically on 27 May 2020 and, as a consequence, was out of time. The applicant seeks an extension of time to allow the appeal to be heard and determined.
The Crown submits that the extension of time should not be granted. On the extension of time, the applicant relies upon an Affidavit of his solicitor (Eugene Renard) of 13 August 2020, which purports to explain that the wrong form for an extension was sent to the CCA Registry and rejected. This is the reason the appeal is out of time, or, more accurately, the reason there was not a further extension of the Notice of Intention to Appeal that would have rendered the application for leave to appeal within time.