Field v Unas [2019] ACTSC 13

Crimes (Sentencing) Act 2005 (ACT) ss 10, 12

Dinsdale v The Queen [2000] HCA 54; 200 CLR 321

R v Horton-Hegarty [2017] ACTSC 268

R v Zamagias [2002] NSWCCA 17

The Queen v DK [2016] ACTCA 7

1. The appellant appealed against a sentence of imprisonment imposed for an offence of assault occasioning actual bodily harm to Mr Nesbitt that occurred on 22 October 2017.

2. On 13 August 2018, the Chief Magistrate sentenced the offender to nine months' imprisonment, to be suspended after three months subject to undertaking to comply with good behaviour obligations for a period of 18 months from release. At the same time, her Honour imposed an 18-month good behaviour order for an associated offence of common assault on Mr Robertson.

3. The appellant submitted that the Court had erred in failing to adequately explain why the sentence of imprisonment included a period of full-time imprisonment.

4. In the early hours of 22 October 2017, the appellant and a co-offender, Mr Latu, followed Mr Tink and his group of friends from the Mooseheads Pub and Nightclub in London Circuit to Theatre Lane, near Vernon Circle in Civic. They instigated a conversation with Mr Tink and his group.

5. The appellant and Mr Latu approached Mr Tink, who by that stage was lying supine on the road, severely affected by alcohol. Someone began to urinate on Mr Tink. He got up and attempted to push the appellant and co-offender away. Mr Latu ran from the scene, followed by Mr Tink, who was followed by the appellant.

6. Mr Latu stopped, turned, punched Mr Tink in the head and ran off, leaving Mr Tink unconscious on the ground. The appellant remained with Mr Tink, seemingly concerned about his welfare. Mr Tink's friends (including Mr Nesbitt) arrived at the scene and commenced a heated conversation with the appellant, believing that he was responsible for Mr Tink's condition. The appellant walked away.

7. Having ascertained that Mr Tink appeared to be seriously injured, Mr Nesbitt ran after the appellant to remonstrate with him. The appellant and Mr Latu began to push and punch Mr Nesbitt. He raised his hand to his face to protect himself, but the appellant and co-offender continued to assault him. He retreated about 10 metres from where the assault had commenced. His shirt was torn. He fell to the ground on his hands and knees. At some point, he attempted to fight back, but did not land any punches.

8. One of Mr Nesbitt and Mr Tink's friends, Mr Robertson, positioned himself between the appellant and co-offender on one side and Mr Nesbitt on the other, attempting to effect a separation. Consequently, Mr Robertson received several punches to the head from the co-offender and was grabbed and pushed by the appellant. These circumstances make up the offence of common assault.

9. Once Mr Nesbitt was on the ground, the appellant and Mr Latu continued to punch and kick him to the head. Mr Latu delivered the kicks to the head. Mr Nesbitt lost consciousness and was lying with his face, flat on the ground. The appellant and Mr Latu then ran away up Theatre Lane.

10. Mr Nesbitt, sustained multiple facial fractures to his lower jaw, sinus and nose, as well as bruises and abrasions. He also experienced symptoms of concussion. Subsequently, he was taken to hospital and thereafter treated conservatively.

Submissions to the Magistrates Court and reasons for decision

11. When the matter came before the Chief Magistrate, the legal representative for the appellant stated at the conclusion of his submissions:

In my respectful submission, we're not at that point of last resort where a period of full-time imprisonment is required. There are other alternatives available to your Honour, as reported in the pre-sentence report, and I would invite your Honour to consider those alternatives.

He did not elaborate on appropriate alternatives to full-time imprisonment. In particular, he did not invite the Court to request an assessment for an intensive corrections order.

In this matter I respectfully submit that the conduct displayed in the CCTV footage warrants a term of imprisonment. However, it's a matter for your Honour to decide how the defendant serves that term. If your Honour forms the view that an immediate term of [imprisonment] in my submission is not required, there is the alternative of community that can also address that need of general deterrence that is highly relevant in a case of this nature. [sic]

The prosecutor said nothing further about the manner in which any term of imprisonment should be served.

13. In her Honour's sentencing remarks, among other things the Chief Magistrate observed, that:

(a) The offence of assault occasioning actual bodily harm carries a maximum penalty of five years' imprisonment.

(b) The offence was unplanned.

(c) Mr Latu was the instigator and, at least at the outset, the appellant played a lesser role, loitering around Mr Tink more out of concern than out of a desire to harm him.

(d) However, after Mr Nesbitt remonstrated with the appellant, the appellant became aggressive and, "had to be effectively dissuaded from continuing by Mr Latu".

(e) The assault on Mr Nesbitt was "just above the mid-range of seriousness for an offence of its type, having regard to the kicking whilst he was on the ground and unable to defend himself, in company with another person".

(f) The appellant was a young man with no prior criminal history and he was remorseful. Consequently, there was scope for leniency.

(g) The appellant had taken steps to address factors that may have contributed to the incident by obtaining support from a mentor and medical assistance in relation to his problem of alcohol abuse.

(h) There was a very real need for general deterrence, given that violence, particularly among younger people, and particularly among those affected by alcohol in the city, was a major concern for the community.

(i) Other relevant sentencing purposes were denunciation, recognition of harm to the victims, and punishment. Specific deterrence was a lesser consideration. There was scope for rehabilitation.

I have formed the view, however, that at least in respect of the assault occasioning actual bodily harm, a sentence of imprisonment, albeit a sentence of last resort, is the only appropriate sentence to properly recognise those sentencing principles.

Having regard to the assault occasioning actual bodily harm, I now record a conviction. You are sentenced to nine months' imprisonment. Noting the concentration that is still relevant on rehabilitation, given your youth, it will be suspended after serving three months' imprisonment upon entering into a good behaviour order for a period of 18 months with terms.

15. The appellant submitted that the Court should have expressed full reasons for its decision that the appellant must serve a period of full-time imprisonment. The appellant relied upon a decision of Elkaim J in R v Horton-Hegarty [2017] ACTSC 268, where, at [42] to [46], his Honour concluded that a full-time prison sentence was not inevitable and proceeded to consider each possible alternative to a sentence of full-time imprisonment.

16. The appellant submitted that, given his youth and lack of criminal history, a similarly detailed explanation was required of the Chief Magistrate for rejecting the possibility that a sentence of imprisonment be served wholly in the community. The appellant submitted that the failure to adequately explain why some period of full-time imprisonment must be served was a specific error in the Chief Magistrate's reasoning.

17. The starting point is s 10 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which provides:

(2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

(3) If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless -

(b) the offender is released from full-time detention under this Act or another territory law.

18. These provisions make it clear that, before a court imposes a sentence of imprisonment, it must be satisfied that no other penalty but imprisonment is appropriate. Section 10(3) then provides a "default position"; that a sentence of imprisonment must be served by full-time detention unless the Court orders otherwise, or paragraph (b) applies. In Dinsdale v The Queen [2000] HCA 54; 200 CLR 321 at [79], Kirby J said:

The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do".

(footnotes omitted)

19. Similarly, in the ACT, when imposing any sentence of imprisonment, the sentencing court must proceed in two stages. First, a determination of whether it is necessary to impose a sentence of imprisonment; and, secondly, a determination of the manner in which that sentence should be served: The Queen v DK [2016] ACTCA 7 at [27] and [31].

20. As to the need for the sentencing court to explain its decision, Howie J (with whom Hodgson and Levine JJ agreed) stated in R v Zamagias [2002] NSWCCA 17 at [30]:

Having determined the appropriate sentence, the court must explain the sentence imposed and this may require in an appropriate case some discussion of the alternatives available and why a particular alternative has been chosen. But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous.

(citations omitted)

21. My reading of the reasons for sentence in this matter is that the Chief Magistrate was well aware that s 10(2) of the Sentencing Act required her to consider whether she was satisfied that, having regard to possible alternatives, no penalty other than imprisonment was appropriate. Her Honour expressly opined that a sentence of imprisonment, albeit a sentence of last resort, was the only appropriate sentence to properly recognise the relevant sentencing purposes. The appellant accepted that finding.

22. Her Honour then referred to the prominence of the sentencing purpose of rehabilitation, having regard to the appellant's youth. In that context, her Honour decided to deviate from the "default position" and proceed under s 12 of the Sentencing Act to impose a partly suspended sentence.

23. In the ACT, a sentence of full-time imprisonment would usually be associated with a non-parole period of at least 50 per cent of the total term. In this case, by proceeding under s 12, her Honour gave the appellant the benefit of a shorter period of full-time imprisonment because of his youth and the associated sentencing purpose of rehabilitation.

24. The very fact that her Honour adopted that course shows that she was both aware of the need to make a finding under s 10(2) and aware that she could deviate from the "default position" of full-time imprisonment, an option that she chose to adopt.

25. In some circumstances where a court deviates from a usual or default position, a fulsome explanation may be required. However, the circumstances of this case did not call for a detailed explanation. First, read in context of the outcome, the reasons are clear. Her Honour gave an adequate (albeit brief) reason for departing from the "default position": the appellant was young and deserved the benefit of an opportunity to rehabilitate. Second, in the Magistrates Court the pressure and the nature of the work means that a full explanation detailing all aspects of the reasoning process is not usually required, as long as the main matters are addressed. Finally, the submissions that were made to her Honour included only brief reference to alternatives to full-time imprisonment and no particular option was pressed. Consequently, her Honour did not need to explain why she did not take a particular option such as that of fully suspending the sentence.

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