Guy v Anderson and Telford [2013] ACTSC 5 (14 January 2013)

CHRISTOPHER GUY V KRISTY ANDERSON AND ERIN ALEXANDRA TELFORD

[2013] ACTSC 5 (14 January 2013)

APPEAL AND NEW TRIAL - appeal against sentence - manifest excess - sentencing for several offences - cumulation and concurrency - double punishment erroneous despite concurrency of sentences - Pearce v The Queen (1998) 194 CLR 610 - appeal ground upheld

APPEAL AND NEW TRIAL - appeal against sentence - manifest excess - resentencing after breach of suspended sentence - where breach by conviction - Gyory v The Queen [2012] ACTCA 28 - no presumption of activation of the suspended sentence on breach - need to consider all available relevant material on resentencing - proportionality between breaching offence and sentence to be imposed - appeal ground upheld

APPEAL AND NEW TRIAL - appeal against sentence - specific error - court must take pre-sentence custody into account - court has discretion in how to account for pre-sentence custody - discretion not to backdate should be used sparingly - Hawkins v Hawkins (2009)

3 ACTLR 210 - pre-sentence custody not considered - appeal ground upheld

CRIMINAL LAW - property offences - sentencing - characterisation of offence in context of domestic violence - relevance of forgiveness and reconciliation - forgiveness by complainant to be treated cautiously

Crimes Act 1900 (ACT), ss 24, 26, 116

Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, s 216

Crimes (Sentencing) Act 2005 (ACT), pt 4.2, ss 10(2), 12(3), 63

Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110

Domestic Violence and Protection Orders Act 2008 (ACT), sch 1 item 47

United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules), GA Res 45/110, UN GAOR, 45th sess, 68th plen mtg, Agenda Item 100, UN Doc A/RES/45/110 (14 December 1990)

Crime Prevention and Criminal Justice Branch, Commentary on the United Nations Minimum Rules for Non-Custodial Measures (The Tokyo Rules), UN Doc ST/CSDHA/22 (1993)

Bartels, L, and Rice, S, 'Reviewing Reforms to the Law of Suspended Sentences in the Australian Capital Territory' (2012) 14 Flinders Law Journal 253

Attorney-General v Tichy (1982) 30 SASR 84

Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379

Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178

Gyory v The Queen [2012] ACTCA 28

Halden (1983) 9 A Crim R 30

Kien v The Queen [2012] ACTCA 25

Nevard v Harley (1980) 31 ACTR 13

R v Buckman (1987) 47 SASR 303

R v Burton [2008] NSWCCA 128

R v Campbell [2010] ACTCA 20

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Glen (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Grove, Simpson JJ and Loveday AJ, 19 December 1994)

R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179

R v Marston (1993) 60 SASR 320

R v Meyboom [2012] ACTCA 48

R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174

R v Storey (1984) 6 Cr App R (S) 104

Saga v Reid [2010] ACTSC 59

Salmon (1973) 57 C App R 953

Shaw v The Queen [2008] NSWCCA 58

Taylor v Bowden [2009] ACTSC 13

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The conviction for the offence of damaging property on 20 December 2011 (CC2012/537) and the cancellation of the good behaviour order made on 3 August 2011 be confirmed.

3. The sentences imposed by the Magistrates Court on 2 May 2012 be set aside.

4. In lieu of the sentence for the offence of damaging property (CC2012/537) and in the light of the period of custody he has already served, Christopher Martin Guy be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.

5. In lieu of the sentence reimposed for the offence of assault occasioning actual bodily harm (CC2011/2953) and in the light of the period of custody he has already served, Christopher Martin Guy is resentenced as follows:

a. He is sentenced to six months imprisonment to commence on 1 January 2013.

b. The sentence of imprisonment is to be suspended today for a period of two years.

c. I require him to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years from today with a probation condition that for a period of 12 months he be on probation subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him especially as to treatment and counselling for alcohol and other drug use and mental health.

1. On 20 December 2011, the appellant, Christopher Guy, was involved in an argument with a woman, with whom he had a rather intermittent relationship. I shall refer to her as the complainant. Mr Guy walked out of the house to have a cigarette and the complainant locked the door behind him.

2. Later, she packed his bag and left it at the front door. It appears, for reasons that are set out below (at [23]), that he did not hear her tell him that and he knocked at the rear door and then on the bedroom window. The complainant called the police and, as she was talking to them, she heard the sound of breaking glass. Mr Guy had broken the window.

3. The complainant told Mr Guy that his belongings were at the front door and he left. He was later charged with damaging property contrary to s 403(1) of the Criminal Code 2002 (ACT), an offence attracting a maximum penalty of 1 000 penalty units (that is a fine of $110 000) or 10 years imprisonment or both.

4. On 7 March 2012, he pleaded guilty to that offence and, on 2 May 2012, was convicted and sentenced to one month's imprisonment to commence on that day. The conviction constituted a breach of a good behaviour order made on 28 August 2011 when he pleaded guilty to an offence of assault occasioning actual bodily harm, an assault on the same complainant, and the sentence of six months imprisonment was suspended.

5. The learned Chief Magistrate, who sentenced Mr Guy on 2 May 2012, imposed the full six months period of imprisonment, also to commence on that day; that is to be concurrent with the other sentence. Mr Guy has now appealed the sentences imposed by her Honour.

6. An appeal is, of course, a creature of statute, as described by Kelly J in Nevard v Harley (1980) 31 ACTR 13 at 15. A statutory power has to be identified before a court can exercise appellate jurisdiction. This Court has power under pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.

7. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles to be applied. I apply them in this case.

8. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.

I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

9. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

10. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

11. Mr Guy and the complainant were in a relationship for about two years, though there had been separations during that time as the relationship seemed rather volatile.

12. On 3 March 2011, the complainant returned from work to her home, where Mr Guy was then living; he had been drinking all day. He was intoxicated. An argument ensued about their finances and Mr Guy left the premises. He returned later and the argument resumed. He left again but again returned, only to resume the argument.

13. Later that evening, when they had continued to argue, Mr Guy became physically abusive and shouted into the complainant's face and then hit her, causing a small cut to the corner of her left lip.

14. He is said to have attempted to choke her, though the medical records do not record any complaint of this or injuries to her neck. He was on top of her and the facts state that he pushed his thumb into her windpipe and then his other hand onto her windpipe but she managed to kick him in the testicles and he released her. He then stood up and kicked her in the ribs as she screamed for help.

15. Mr Guy got on top of her again and pushed his thumb again into her windpipe until her vision started to blur and she could not breathe. She started retching and Mr Guy released his grip. The complainant crawled away and he tried to choke her again but she retched onto the carpet. He pulled her by the hair into the toilet and, when she had finished retching, pulled her into the bedroom, where he poured half a bottle of wine over her head. He again put his hands around her throat.

16. Mr Guy then pulled the complainant into the lounge room and she tried to calm him down by suggesting he go outside for a cigarette.

17. The next day, she went to the police and made a statement. She also went to Calvary Hospital and was examined. The discharge diagnosis was "soft tissue injury, multiple bruising". The clinical assessment noted "No head injury ... Bruising of Right groin, right shoulder and scapular region, left forearm, rt knee, both cheek bones ... xray no obvious fracture".

18. It was a serious assault and must have been very frightening for the complainant.

19. Mr Guy was, it appears, arrested on 4 March 2011 and charged with assault occasioning actual bodily harm and also common assault. The charge of assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT), rendering him liable to a maximum penalty of five years imprisonment, and the offence of common assault is an offence against s 26 of the Crimes Act rendering him liable to a maximum penalty of two years imprisonment. A third charge was preferred but apparently was discontinued before or at sentencing. It was not clear on the material before me which precise acts constituted each offence. He appeared in the Magistrates Court on the next day, 5 March 2011, and was refused bail. He was later granted bail on 17 June 2011. On 28 August 2011, he was sentenced by Magistrate Lalor for the charge of common assault to three months imprisonment to commence on 5 March 2011, that is to most of the time already served, and for the charge of assault occasioning actual bodily harm to six months imprisonment but suspended on that day.

20. As required under s 12(3) of the Crimes (Sentencing) Act 2005 (ACT), (Sentencing Act), his Honour made a good behaviour order with, in addition to the core conditions set out in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), a probation condition for 24 months and three additional conditions:

1. The offender is to attend such educational, vocational, psychological, psychiatric or other programs of counselling as the offender is directed to, particularly in relation to alcohol abuse and place of residence.
2. The offender is undertake such medical assessments and treatments as the offender is directed to.
3. The offender is to supply samples of blood or urine for alcohol or drug testing if directed to.

21. It appears that the only direction given under special condition 1 was for Mr Guy to undertake the ACT Corrective Services Family Violence Cognitive Self-Change Program, which he did commence.

22. As noted above (at [1]), however, he and the complainant engaged in another significant argument on 20 December 2011. The argument, however, was verbal rather than physical and Mr Guy did leave the house, a sensible strategy to diffuse the situation. As also noted, after he went outside, the complainant locked the sliding door and refused to let him back in.

23. In a letter from the complainant tendered on sentencing without objection, the complainant described the events as follows:

On 20 December 2011 Chris was staying at my house as we were trying to talk things through and work things out between ourselves. I had gone to bed at approximately 9pm and Chris stayed up watching TV. I was woken up at approximately 11.30[pm] with Chris holding my mobile phone to my face asking me what i'd [sic] been doing while he'd been away. I was disorrientated [sic] and confused and started yelling at him for invading my privacy (my phone). He then went out onto the back patio to have a cigarette and I locked the door on him and told him to leave. He told me that he would leave but that it would be in the morning. I told him I would pack up his stuff and leave it at the front door for him. I packed his clothing etc in his bag and left it at the front door. I then went back into my bedroom. Chris was still knocking on the door asking to be let in. I turned off my bedroom lights and Chris was knocking on the bedroom window. I had told him I would call the police if he didn't leave. I heard another knock on the bedroom window and then the glass smash as I was on the phone to the police.

...

Chris is deaf in one ear and I have subsequently found out that he did not hear me telliing [sic] him I was putting his stuff outside or that I was calling the Police.

24. In any event, Mr Guy was later summonsed on 18 January 2012 to appear in the Magistrates Court on 14 February 2012 to answer an offence of damaging property. He did appear and presumably was then charged with the offence.

25. Representations were made to the prosecution, but not accepted and, on 7 March 2012, Mr Guy pleaded guilty, but the proceedings were adjourned so that further representations could be made and discussions about factual disputes could be had. On 21 March 2012, his plea was confirmed and a Pre-Sentence Report ordered under pt 4.2 of the Sentencing Act.

26. On 2 May 2012, Mr Guy consented to the summary jurisdiction of the Magistrates Court and he was sentenced as noted above (at [4]-[5]).

27. Unfortunately, the material tendered on sentencing was not, as seems regrettably to be the practice in the Magistrates Court, marked as exhibits so that it is not always clear what has been received into evidence and what has not. In this case there is, in the appeal papers, a Forensic Mental Health Report dated 24 May 2011, prepared by Dr G J George, Consultant Psychiatrist. It appears to have been used in the sentencing proceedings before Magistrate Lalor. The learned Chief Magistrate did refer to having read the statement of facts then before his Honour and to having seen photographs, apparently of the complainant after the assaults. The photographs are not reproduced in the appeal papers, but Dr George's Report is. Her Honour does not mention the Report, but does refer to reviewing "the original file". It is unfortunate that there is a lack of clarity about what exactly was before her Honour, but I am prepared to accept that she had regard to Dr George's Report. I will also have regard to it.

28. Mr Guy was born in 1969, the youngest of his parents' four children. His parents separated when he was about 15 and, although shocked, he did not feel it otherwise impacted on his life. Indeed, he had earlier left home "because I didn't like it at home". He has, however, ongoing contact with his father and more limited phone contact with his siblings and mother.

29. Mr Guy said that he was sexually abused as a child and, although encouraged to address that through counselling, has not done so, saying that he had come to terms with it. The author of the Pre-Sentence Report did, however, express the view that he had been "significantly affected by the abuse".

30. Mr Guy went to school in Canberra, but his dyslexia and Attention Deficit Hyperactivity Disorder caused him to struggle there and he left at age 14. As a result, he has limited literacy and comprehension skills.

31. He has, however, undertaken some training in a number of trades and undertaken courses whilst in custody. Despite this, he has had limited employment and has mostly been in receipt of unemployment benefits, which are his only source of income.

32. He commenced a de facto relationship when he was 18 and it lasted for 12 years, resulting in the birth of three children. Tragically, his eldest son died in a motor vehicle accident when he was 18 and this has had a profound effect on Mr Guy. Dr George noted that he was still grieving over the loss, which has led to significant alcohol abuse.

33. His current relationship with the complainant is somewhat volatile, but in a letter tendered to the Court, also without objection, she said that they "have continued with [their] relationship and have had no problems whatsoever", although that was apparently preceded by a period of mutual separation which both found to be a struggle.

34. Mr Guy has a poly-drug and alcohol history dating back to when he left home. He first used cannabis and alcohol but has since used amphetamines, cocaine and hallucinogens, but intermittently and minimally over the past few years.

35. His cannabis and alcohol use have, however, remained constant and, in particular, he has drunk alcohol regularly to excess. He acknowledged the detrimental effect this has had on his adult life.

36. He has attended detoxification programs but felt he could not cope with a longer-term residential rehabilitation program. Dr George diagnosed him with a social phobia, probably beginning in his mid adolescence and felt this would make it difficult for him to sustain a residential program for substance abuse rehabilitation on a long term basis.

37. Prior to sentencing, he had, however, been able to reduce his alcohol use quite significantly, though with difficulty. This is exacerbated because the complainant also drinks alcohol and has been inclined to drink more than he has been drinking.

38. He has also reduced his cannabis use, confirmed by random urinalysis. He has clearly been making significant efforts to address the factors that contribute to his offending behaviour.

39. Mr Guy has, however, some complex mental health issues. He has been diagnosed by a psychiatrist as suffering Bipolar Affective Disorder. Dr George was a little more cautious. He was prepared to accept that he had a "Bipolar II disorder" which appears to confirm the earlier diagnosis. Dr George felt that he displayed some symptoms of Post-Traumatic Stress Disorder, arising out of the sexual abuse experience, but considered his symptoms did not allow for an ongoing diagnosis of a chronic disorder. He did, however, consider that he suffered from a social phobia, associated with panic attacks. As noted above (at [36]), this limits some treatment options.

40. It appears that Mr Guy was not directed to participate in any mental health treatment or counselling by his probation officer. In the months leading up to sentencing, however, his mental health did deteriorate and included an attempt at suicide. This led to him being an inpatient at a psychiatric unit of Calvary Hospital for 10 days. Since then, he has, at his own initiative, engaged with the City Mental Health Team, has a treating psychiatrist and is also engaging with the Canberra Men's Centre.

41. As also noted above (at [21]), he is undertaking the ACT Corrective Services Family Violence Cognitive Self-Change Program.

42. He has continued with probation supervision and remains on prescribed medication. He has "well-complied" with his current probation requirements.

43. He has expressed remorse for breaking the window and, as acknowledged by the complainant, has paid for the damage he caused.

44. Mr Guy has a long criminal history, involving 122 offences in 34 court appearances. Most of the offences are in relation to motor vehicle offences, including six drink-driving offences and 12 offences of driving whilst suspended or cancelled. There are, however, 18 burglary offences, 15 larceny offences and 10 offences of taking and using a motor vehicle. There are also 18 offences which might generically be called street offences.

45. He has convictions for seven offences of damage property, though dealt with in three court appearances, the most recent in 2005 and the others over 20 years ago. He has only two prior convictions for assaults, being the matters dealt with by Magistrate Lalor in 2011. Prior to that, his next convictions were four motor vehicle offences in 2011 and 2010, of a breach of the peace in 2008 and three street offences in 2007.

46. He had also been dealt with for a number of breaches of recognisances or similar orders, though the most recent was in 2005 when the breach was proved but no penalty was imposed.

47. His offending, while serious, was de-escalating until the serious offending in 2011 which occurred in the context of his present relationship.

48. The learned Chief Magistrate noted the maximum penalty for the offence, which made it a serious offence. She accepted that the window was broken recklessly and rejected a suggestion that it was accidental; that would, of course, have amounted to a complete defence to the charge.

49. Her Honour noted that the prosecution submitted that the offence was in the mid to high range of seriousness for such offences while the defence submitted it was within a low range of seriousness. Her Honour accepted that it was "only a matter of damaging a window", but considered that it was aggravated by the circumstances under which it was committed. This was, her Honour said,

that the complainant is the same person who was previously the complainant in relation to matters involving [Mr Guy] ... it is aggravated because this is a person who might be expected to be in some fear of you given the background to the relationship and although it was only damage to the window, that one could reasonably expect that she would have been afraid as a result of that damage occurring.

50. A court sentencing a person for damaging property is entitled to take into account the circumstances in which it is committed as Lush J, with whom Fullagar J agreed, said in Halden (1983) 9 A Crim R 30 at 36. There are, however, dangers in this and his Honour commented:

It is not always easy to say where a permissible consideration by a sentencing judge of the circumstances of the commission of an offence ends, and punishment for an offence not charged begins.

51. There was no allegation in the statement of facts that the complainant was in fear as a result of the offence; indeed, she had rung police before the window was smashed. If she was in fear that she may be hurt, that is a separate offence of assault, which was not charged, and to sentence Mr Guy for that would offend the principles in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

52. In any event, while dismissing any suggestion that the offence was trivial, her Honour accepted that it was at the low end of offending of that type; indeed, her Honour also accepted that it could have been charged under s 116 of the Crimes Act.

53. Her Honour referred to a number of the subjective features of Mr Guy as disclosed in the material before her and expressed the fact that his mental health was of concern as was his continued excessive use of alcohol. She also referred to the prior offences of damaging property of which he had been found guilty. She noted, too, that he had now paid for the damage. She also noted that he had previously been placed on suspended sentence orders which had been breached. Her Honour also gave Mr Guy "a full discount for [his] guilty plea", reducing the sentence accordingly.

54. The learned Chief Magistrate rejected the submission of Mr Guy's counsel that a further suspended sentence be made, even though she seemed to accept that, apart from the offence, he had been compliant with the conditions of the good behaviour order.

55. Her Honour did not have the sentencing remarks for the earlier sentence, but accepted that Mr Guy's mental health was relevant. Her Honour accepted, however, that there were "violent overtones" to this offence, though, in fact, there was no suggestion that Mr Guy was other than trying to get his belongings back before going home.

56. Her Honour then came to the conclusion that she was "not satisfied that there are reasons not to impose the sentence of imprisonment". This double negative would not seem to comply with the positive duty in s 10(2) of the Sentencing Act that the Court must be "satisfied, having considered possible alternatives, that no other penalty [than imprisonment] is appropriate".

57. Her Honour concluded that the suspended sentence "is effectively a lenient approach to sentencing in the sense that ... the assault was serious enough to send [Mr Guy] to prison for six months but that [he] ought to be given the benefit of it being suspended". Her Honour commented:

However, suspended sentence orders are to be taken seriously and breach of those orders is to be taken seriously by the courts, because if a breach is not treated seriously, the strength of the suspended sentence order in operating to stop somebody from committing further offences is effectively lost.

Accordingly, her Honour imposed the six months suspended sentence to start from that day.

58. Her Honour then considered the damage property matter and said:

It's not been urged upon me that a sentence of imprisonment is the only appropriate sentence in respect of this matter, and certainly if I were dealing with it in isolation I would consider that I could deal with it by way of community service order. However, in the totality of what I'm dealing with today, it seems to me that the most appropriate way to deal with this matter is by the imposition of a sentence of imprisonment to be served concurrently with that which I have imposed by way of the suspended sentence.

59. That may not strictly comply with what the High Court said in Pearce v The Queen (1998) 194 CLR 610, but, of course, in a busy Magistrates Court, it is not appropriate to analyse sentencing remarks too critically.

60. Mr Guy sought to appeal against the whole of the sentences imposed. The Notice of Appeal, filed on 23 May 2012, stated that further evidence would be sought to be placed before the Court and specified the sole ground of appeal as that the sentences were manifestly excessive in the circumstances.

61. The filing of the Notice of Appeal stayed the serving of the term of imprisonment and Mr Guy made a bail application which was heard on 1 June 2012. Bail was granted. He had, thus, spent one month in custody.

62. At the hearing of the appeal, it became clear that no consideration had been given to the period of pre-sentence custody that Mr Guy had served before he was resentenced for the offence of assault occasioning actual bodily harm. I gave leave to amend the Notice of Appeal to raise, as a second ground, that her Honour had failed to have any regard to s 63 of the Sentencing Act.

63. I also permitted the further evidence set out in affidavits of the complainant on Mr Guy to be adduced. I did not read paragraph 6 of the complainant's affidavit.

64. The complainant stated that she and Mr Guy were "fully reconciled", that they are engaged and that Mr Guy spends "a lot of time" at her home. She stated further that his mental health is stable by virtue of his medication and that he was abstinent from consuming alcohol or other drugs. She referred to the recent birth of his granddaughter and the terminal illness suffered by his father.

65. Mr Guy also referred to the birth of his granddaughter and that he had been able to assist his daughter in the early stages of parenthood. He confirmed that he and the complainant were reconciled. He also referred to the limited life expectancy of his father and his wish, in his father's last months, to spend as much time with him as possible.

66. He also stated that he had obtained employment with Rumbles Removals and Storage and a letter from that firm in confirmation was tendered. It stated that he was reliable, honest and accurate with paperwork. It also stated that he was "well mannered and of good humour". The author said the business was "exceedingly pleased with him".

67. Mr Guy confirmed that he had ceased altogether drinking alcohol or taking other drugs. He was regularly taking his medication which, he said, was effectively managing his mental health.

68. Mr M Hassall, counsel for Mr Guy, made three submissions:

(a) the learned Chief Magistrate failed to apply s 63 of the Sentencing Act, in that her Honour failed to have regard to the pre-sentence custody to which Mr Guy was subject prior to being sentenced for the offence of assault occasioning actual bodily harm when dealing with the breach;

(b) the offence which constituted the breach was so disproportionate in seriousness to the offence for which the good behaviour order was made that there was, contrary to the approach of her Honour, no inevitability in the imposition of the sentence that was suspended; and

(c) the sentence imposed was manifestly excessive having regard to all the circumstances.

69. Mr C Wanigaratne, who appeared for the respondents, submitted that:

(a) her Honour had recognised that she had a discretion to exercise in respect of the sentence following the breach of the good behaviour order and, in the light of the seriousness of the offence of assault occasioning actual bodily harm, it was not inappropriate to impose the sentence of imprisonment that had been suspended;

(b) the offences were both family violence offences and merited a strong approach by the courts, even though the damage property offence was at the lower end of the scale, for the circumstances in which it was committed were relevant;

(c) the fact of the reconciliation of the complainant and Mr Guy and her forgiveness was irrelevant;

(d) the relevant time in custody was 13 days, not 3 months and 13 days; and

(e) the sentence was not manifestly excessive, especially as Mr Guy had a long and serious record and was assessed as not suitable for periodic detention.

70. In a sense, the ground that the sentence was manifestly excessive applies to both the sentence for the damaging property as well as the action taken in respect of the breach of the good behaviour order.

71. The Court of Appeal has set out in R v Campbell [2010] ACTCA 20 at [32]-[35] the nature of the task of the court when considering the grounds that a sentence is manifestly excessive (or manifestly inadequate). That approach has been approved in a number of recent decisions: R v TW (2011) 6 ACTLR 18 at 27; [59]-[60]; 38; [124]; Kien v The Queen [2012] ACTCA 25 at [27]; R v Meyboom [2012] ACTCA 48 at [92]. I do not need to repeat those remarks and I apply them.

72. As to the sentence for the offence of damaging property, it seems to me that the sentence was manifestly excessive. This may, in part, have been caused because the learned Chief Magistrate had decided to impose the sentence that had been suspended and to make a sentence that was wholly concurrent and, therefore, would not have actually increased any period of custody.

73. That, however, does not accord with principle. As McHugh, Hayne and Callinan JJ said in Pearce v The Queen (1998) 194 CLR 610 at 623-4; [43]-[45]:

The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen (1988) 166 CLR 59].

74. In my view, her Honour was correct to characterise the offence as at the lower end of seriousness for such an offence which, after all, spans a very wide range of conduct from smashing a building by ramming it with a vehicle to scratching the side of a motor car with a coin.

75. Mr Wanigaratne helpfully referred me to a decision of the Court of Appeal of England and Wales in R v Storey (1984) 6 Cr App R (S) 104 where Mustill J, for the Court, said (at 107):

We believe that the second principle is this, that although the monetary value of the damage caused was enormous in this case, the real seriousness of the offence lies not in the figures, but in the intent which underlay what these boys did, and it would be wrong to select a duration of sentence by reference simply to the very expensive damage which these boys happened to cause.

76. In this case, all the evidence pointed one way, namely to Mr Guy seeking to get his belongings so that he could leave. That is not only consistent with his behaviour during the argument, of leaving rather than attacking the complainant, as he had previously done, but also with the evidence of the complainant herself.

77. It is true that the offence could appropriately be characterised as a domestic violence offence (see Domestic Violence and Protection Orders Act 2008 (ACT) sch 1

item 47) and that the courts have viewed that circumstance most seriously. See, for example, R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 191-6; [65]-[88]; Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178 at 189; [66]-[70]. That, however, does not mandate a particular response and the whole of the circumstances, including Mr Guy's history, must be taken into account.

78. I also accept that the fact that the complainant and Mr Guy have reconciled needs to be approached cautiously. I did not detect any error in her Honour's approach to this issue which, in fact, she hardly mentioned. Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Grove, Simpson JJ and Loveday AJ,

19 December 1994) at 8. As her Honour said, "the victim's attitude to sentencing ... was not a matter which should have influenced the sentencing decision." See also

R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 183-4; [37]; R v Burton [2008] NSWCCA 128 at [102]-[105].

79. In Shaw v The Queen [2008] NSWCCA 58, Fullerton J, with whom McClellan CJ at CL and Grove J agreed, confirmed that approach (at [27]) but did point out (at [45]) that the reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation. That is also clearly relevant here.

80. In my view, a sentence of imprisonment for the offence of damaging property was, in the circumstances, manifestly excessive. I would have, on that charge, released Mr Guy on a good behaviour order with a community service condition.

81. He has, however, been in custody, even excluding the pre-sentence custody, for the whole of the period to which he was sentenced. It would be quite unfair now to impose a community service condition to be served in addition to the custody he has served.

82. A number of issues were raised about her Honour's decision to impose the full six months sentence that had been suspended when Mr Guy was sentenced for assaulting the complainant and occasioning actual bodily harm.

No presumption for activating the sentence suspended

83. In the first place, it was suggested that her Honour erred in assuming that there was a presumption in favour of imposing the original sentence that had been suspended. Unlike all other Australian jurisdictions, there is, in this Territory, no statutory presumption of activation of the original sentence of imprisonment once a breach is proved: see Lorana Bartels and Simon Rice, 'Reviewing Reforms to the Law of Suspended Sentences in the Australian Capital Territory' (2012) 14 Flinders Law Journal 253 at 258. The powers of a court when a good behaviour order, imposed when a sentence of imprisonment is suspended, is breached are set out in s 110 of the Sentence Administration Act, which relevantly provides:

(1) This section applies if -

• (a) an offender's good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12(3) (Suspended sentences) on the offender's conviction for an offence; and
• (b) a court is satisfied the offender has breached any of the offender's good behaviour obligations.

(2) The court must cancel the good behaviour order and either -

• (a) impose the suspended sentence imposed for the offence; or
• (b) re-sentence the offender for the offence.

...

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

84. This section has been considered by the Court of Appeal in Gyory v The Queen [2012] ACTCA 28. It is clear from that decision that a court, when considering how to apply s 110(2) following a breach, has a discretion. This interpretation is consistent with the United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules), GA Res 45/110, UN GAOR, 45th sess, 68th plen mtg, Agenda Item 100, UN Doc A/RES/45/110 (14 December 1990) at [14.3]. See Bartels and Rice at 261.

85. That discretion must, as Rares J said in Gyory v The Queen at [10], require the court "to have before it as much material as is relevant to the offending for which the offender is being re-sentenced as is available". See also Taylor v Bowden [2009] ACTSC 13 at [36]; The Tokyo Rules at [14.2]; Crime Prevention and Criminal Justice Branch, Commentary on the United Nations Minimum Rules for Non-Custodial Measures (The Tokyo Rules), UN Doc ST/CSDHA/22 (1993) at 27-8.

86. It is clear, however, that s 110(4) would also require the court to have detailed information of the behaviour and circumstances of the offender since the original sentence had been suspended.

87. I do not consider that her Honour erroneously considered herself bound to impose the sentence that had been suspended rather than re-sentence. There are many statements by courts of the principle that generally a breach of the conditions of a good behaviour order or the like following the suspension of a sentence will result in the offender serving the sentence that was suspended. See, for example, R v Buckman (1987) 47 SASR 303 at 304; Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386; [21]; Taylor v Bowden at [36]; Saga v Reid [2010] ACTSC 59 at [99]-[101].

88. Nevertheless, it is also clear that the court must consider the nature and seriousness of the offence which constituted the breach of the good behaviour order if that is what it was. In R v Marston (1993) 60 SASR 320, King CJ, after referring to the above principle (at [87] above), commented (at 322) that "there are circumstances in which it is proper to refrain from revoking the suspension of the sentence." One of these, his Honour noted, was where there is a "marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated if the suspension is revoked". See also Salmon (1973) 57 C App R 953 at 956.

89. I respectfully agree. I do not consider, however, that that is the limit of the discretion.

90. In my view, while I agree with her Honour that it was not trivial, the breaching offence was at the low end of seriousness for the offence and it was also of quite a different character from the original offence. Significantly, too, Mr Guy had been compliant with the probation condition, had at his own initiative sought mental health assistance and had participated in the Family Violence Cognitive Self-Change Program. His behaviour on this occasion was in marked contrast to his previous behaviour where he had engaged in a prolonged violent attack on the complainant.

91. It seems to me that the imposition of the suspended sentence was manifestly excessive.

92. Finally, her Honour did not take into account the pre-sentence custody that Mr Guy had served prior to him being sentenced for the offence of assault occasioning actual bodily harm. He was in custody from 5 March 2011 to 17 June 2011, three months and 13 days. Even if one says that the sentence of three months imprisonment for the offence of common assault represented three months of that time, there was still 13 days to be taken into account. In any event, the two offences were really part of the one incident and the principles in Attorney-General v Tichy (1982) 30 SASR 84 would apply. See R v Meyboom at [62].

93. I considered the issue of taking pre-sentence custody into account in Hawkins v Hawkins (2009) 3 ACTLR 210 at 223-31; [61]-[102]. I held that:

(1) the width of the legislative provisions required that pre-sentence custody be taken into account on all offences "in relation to" which the offender was in custody;

(2) the court has a discretion about how to take such custody into account but that a discretion not to backdate should be very sparingly used and only where it would offend justice and proper sentencing principles to do so; and

(3) the principle applies to action by the court under s 110 of the Sentence Administration Act.

94. Her Honour gave no reason for not backdating the sentence. Indeed, it may be that counsel then appearing did not turn their minds to the issue and draw it to her Honour's attention. The sentence for the offence of common assault on Mr Guy's criminal record was, however, a very clear sign and it is a pity no-one picked up the sign and addressed it.

95. I am satisfied that the appeal should be upheld. Having regard to the progress being made by Mr Guy, it seems to me that no further period of immediate full-time custody is required.

96. In relation to the offence of damaging property, I would have made a good behaviour order with a probation condition for 12 months and a community service condition for 75 hours.

97. In relation to the breach of the good behaviour order, I would have made a good behaviour order also with a community service condition, cumulative on the above order, for 225 hours.

98. Given the period he has spent in custody, those conditions are not appropriate.

99. In my view, that means I have taken account of the period he has been in custody and, in the circumstances, do not need to backdate any sentence, other than for the 13 days which have otherwise not been expiated.

100. Having regard, also, to the period he has been on bail, I consider that the period of supervision can be reduced.

I certify that the preceding one-hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: Legal Aid ACT

Counsel for the first and second respondents: Mr C Wanigaratne

Solicitor for the first and second respondents: ACT Director of Public Prosecutions