[2015] ACTSC 55

CRIMINAL LAW - Particular Offences - offences against the person - domestic violence - choke person and render insensible - assault occasioning actual bodily harm - common assault - offences committed in the presence of a child.

APPEAL - Appeals From Magistrates - prosecution appeal - whether sentences are manifestly inadequate - whether non-parole period manifestly inadequate - appeals upheld in part - resentenced.

Bui v Director of Public Prosecutions for the Commonwealth of Australia [2012] HCA 1; (2012) 244 CLR 638

R v Burdon (unreported, Supreme Court, ACT, 26 July 2011)

R v Chatfield [2012] ACTCA 32

R v Dunn (2004) 144 A Crim R 180

R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551

R v Henry [1999] NSWCCA 111; (1999) 106 A Crim R 149

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

R v Kien (unreported, Supreme Court, ACT, 29 June 2011)

R v Watson [2014] ACTSC 395

The Queen v Verdins [2007] VSCA 102

Legal Aid ACT (Respondent)

Court File Numbers: CC2014/4304; CC2014/5125; CC2014/5127

1. This is a prosecution appeal against sentences imposed by a Magistrate in the Magistrates Court on 8 October 2014. The respondent was sentenced in relation to three offences:

(a) for an offence of choking a person so as to render that person unconscious (CC2014/5125), the offender was sentenced to imprisonment for 15 months;

(b) for an offence of assault occasioning actual bodily harm (CC2014/5127), the offender was sentenced to imprisonment for 10 months, of which 3 months was to be served cumulatively on the sentence imposed for the offence of choking a person (CC2014/5125); and

(c) for an offence of assault (CC2014/4304), the offender was sentenced to imprisonment for five months concurrent with the sentence imposed on the charge of choking a person (CC2014/5125).

2. The offence of choking a person so as to render them unconscious carries a maximum penalty of 10 years' imprisonment. The offence of assault occasioning actual bodily harm carries a maximum penalty of five years' imprisonment. The offence of common assault carries a maximum penalty of two years' imprisonment.

3. These offences all occurred on 24 April 2014. At that time the respondent was on parole, having been sentenced in January 2013 in this Court to an aggregate sentence of two years and four months' imprisonment for offences of burglary and theft. At that time a non-parole period was fixed making the respondent eligible for parole on 21 October 2013. As I understand it, the respondent was not released to parole by the Sentence Administration Board until 14 January 2014, so that the offences which occurred on 24 April 2014 took place just over three months after he was released to parole. The respondent's parole was revoked by the Sentence Administration Board on 6 May 2014, with the effect that he was returned to custody and was liable to serve the remainder of his sentence, which will not expire until 12 February 2016.

4. The sentence imposed by the Magistrate for the offence of choking a person so as to render them unconscious, which was the foundation sentence imposed by his Honour, was ordered to commence at the expiration of the sentence the respondent was then serving by reason of the cancellation of his parole order. The effect of the sentences imposed by the Magistrate on 8 October 2014 was to increase the total term of imprisonment that the respondent was liable to serve by 18 months. The Magistrate set a new non-parole period expiring on 21 October 2014, effectively, he said, adding a period of 12 months' non-parole to the respondent's existing non-parole period. On this appeal it was accepted by the parties that the Magistrate erred in setting the expiration date of the non-parole period if his intention had been to add 12 months to the respondent's existing non-parole period, as the date fixed by his Honour did not allow for the period of 3 months during which the respondent had been at liberty on parole. What the Magistrate did was to effectively add 9 months to the existing non-parole period, not 12 months. Because of the conclusion I have reached on the prosecutuion appeals, it is unnecessary to consider this aspect further.

5. The grounds of appeal pleaded in the Notice of Appeal are that:

1. the Magistrate erred by making the respondent eligible to be released on parole at anearlier date than if the new sentences had not been imposed;

6. At the hearing of the appeal, the appellant abandoned the first of these grounds and proceeded only on the ground alleging manifest inadequacy. The appellant argued that the sentences imposed were manifestly inadequate in the following ways:

(a) the individual sentences imposed were manifestly inadequate;

(b) the total non-parole period imposed, at 55 per cent of the aggregate sentence, was manifestly inadequate; and

(c) the Magistrate erred in the calculation of the additional non-parole period, and thiscontributed to the manifest inadequacy of the sentence.

7. It was conceded by the respondent that the Magistrate made an error in fixing the new non-parole period, which required this Court to allow the appeal to the extent of correcting this error, but otherwise the respondent submitted the sentences imposed by the Magistrate were not manifestly inadequate.

8. The respondent was arrested on the charge of assault on 25 April 2014 and appeared in the Magistrates Court on 26 April 2014, at which time he was remanded in custody. On 27 May 2014, the appellant was charged with the further offences of choking a person so as to render that person unconscious and assault occasioning actual bodily harm. On that date he entered pleas of not guilty to all three charges and the charges were listed for Case Management Hearing. The charges were subject to case management on 24 June and 5 August 2014, before the respondent entered pleas of guilty on 26 August 2014. On 8 October 2014 the respondent was sentenced.

9. As I have already noted, the offender was on parole at the time he committed these offences. On 22 June 2011, the respondent was sentenced to an aggregate term of imprisonment of three years six months on a range of offences, with a non-parole period of one year six months commencing on 7 December 2010. On 7 February 2012, this aggregate sentence was reduced on appeal to a sentence of 3 years 1 month, suspended after serving 9 months and 18 days, and a Good Behaviour Order was imposed. On 7 January 2013 the respondent was sentenced to terms of imprisonment by Penfold J with respect to offences of burglary, theft and unauthorised possession of a firearm . At the same time, Penfold J cancelled the Good Behaviour Order imposed on 7 February 2012 and resentenced the respondent. An aggregate sentence of two years four months' imprisonment expiring on 21 October 2015 was imposed, with a non-parole period expiring on 21 October 2013. It appears that the respondent was not released on parole until 14 January 2014, but subsequently his parole was cancelled on 6 May 2014 by the Sentence Administration Board because of his continued use of illicit drugs, although I note that the offender was already remanded in custody on the charge of assault at this time.

10. An Agreed Statement of Facts was placed before the Magistrate. At the time of the offences the respondent and the complainant had been in a domestic relationship for three and a half years and lived together in a unit in Gungahlin with the complainant's four-year-old son, EF. The offences occurred on 24 April 2014 in two phases; some time after 2:00 pm the respondent committed the offence of unlawfully choking the complainant so as to render her unconscious and the common assault offence. He then left the premises. The second phase occurred some time after 6:30 pm when the respondent returned and he committed the offence of assault occasioning actual bodily harm. The description of the offences, as outlined in the Agreed Statement of Facts and which is not the subject of complaint in this appeal, is:

As the argument escalated the defendant lunged across the bed and struck [the complainant] with an open hand to the right side of her face. [The complainant] felt pain to the right side of her face and fell to the floor in between the bed and the built in robe. The defendant began to angrily pace up and down the bedroom and [the complainant] feared the defendant was going to continue to physically assault her and said the following; (sic)

[The complainant] said: "Don't hit me in the head again, because I can't explain another black eye"

At this time [the complainant] saw her four year old son [EF] standing at the bedroom door however left when told by the defendant. [The complainant] continued to sit on the floor crying whilst asking the defendant to leave.

The defendant approached [the complainant] from behind and grabbed her by the hair before wrapping both his legs around her middle torso section pulling her backwards from under her chin using one of his hands towards his own chest. In this position the defendant has removed his hand from [the complainant's] chin and placed it around her throat in a choke hold. The defendant continued to hold [the complainant's] hair with his other hand. [The complainant] described this as a martial arts style hold.

...[The complainant] asked the defendant to let her go however he continued to hold her for a short time before releasing her legs and standing up while lifting her in an upwards direction by pulling her hair with one hand and lifting with the arm around her throat.

That, as I apprehend the way the case is put, is the charge of assault. The Agreed Statement of Facts goes on to say:

[The complainant]... ended up lying on her back on top of the bed. At this time the defendant got on top of [her] and placed his right knee on her upper left shoulder. [The complainant] asked the defendant to leave her alone however the defendant said; (sic)

Defendant said: "You want to die?"

Following this the defendant placed his right hand around her throat and started squeezing before placing his left hand over the mouth and nose of [the complainant]. The defendant held the position for approximately thirty seconds and [the complainant] was unable to breathe. [She] lost consciousness for one totwo seconds.

The defendant continued to hold [the complainant's] throat and said the following; (sic)

Defendant said: "The only way to fuck a relationship is if you kill the person".

This constituted the choking offence. The respondent then pushed away from the complainant and left the unit until the respondent returned at about 6:30 pm that day. The Agreed Statement of Facts reads:

[The complainant] walked to the bedroom when the defendant grabbed her by the hair with both hands and begun (sic) shaking. [The complainant] has attempted to back out of the defendants (sic) grip and ended up lying on the left side of her body on the ground. Whilst lying on the ground [the complainant] has continued to argue with the defendant for a short period before the defendant kicked [her] in to the right side of the face and then proceeded to jump on [her] right arm and head.

[The complainant] raised her arms in an attempt to protect her face however continued to get "stomped". [The complainant] felt pain to the right side of her face and was unsure how many times she was kicked, jumped on or stomped by the defendant.

The defendant then left the room and approached [EF] who was sitting in the adjacent bedroom and said the following; (sic)

Defendant said: "I didn't do anything wrong. Mum's flipping out."

The respondent then left the unit. The complainant felt concussed, dizzy and sick. The earrings in her right ear had been ripped off causing her ear to bleed. When seen by police later that night the right hand side of her face was significantly swollen, in particular her right ear.

11. A criminal history tendered in the Magistrates Court established that the respondent has an extremely extensive criminal history, having been convicted or found guilty of approximately 80 criminal offences between 1993 and 2013. He has numerous convictions for serious criminal offending including burglary, theft, dishonest use of motor vehicles, recklessly inflicting actual bodily harm, aggravated burglary, supplying a prohibited substance (heroin), driving in a dangerous manner, driving under the influence of alcohol or drugs and unauthorised possession of firearms. He has served numerous terms of imprisonment and his record shows frequent breaches of community-based orders. The Magistrate noted that the respondent had a limited, albeit significant, history of violence, having been convicted of only one such offence, being an offence of recklessly or intentionally inflicting grevious bodily harm, for which he was sentenced to six months' imprisonment in 2010.

12. A Pre-Sentence Report dated 23 September 2014 was placed before the Magistrate. The author of the Report noted that the respondent had been known to ACT Corrective Services since 1999, having been supervised on a number of a good behaviour orders and on parole orders. His compliance with supervision was described as consistently poor, with Corrections initiating breach action or the respondent reoffending during the majority of his community-based orders. It was noted that the respondent was subject to supervision after his release to parole by the Sentence Administration Board on 14 January 2014 until until he was arrested on 25 April 2014. The Report notes that his parole was cancelled on 6 May 2014 following breach action after three positive drug screenings. During his most recent incarceration at the Alexander Maconochie Centre (AMC) commencing 25 April 2014, the respondent has been issued with three charge notices for breaching AMC regulations, including notices for failing to provide a sample for urinalysis testing and two offences of concealing a prohibited thing. As a result of those breaches, the respondent was subject to non-contact visits until 14 September 2014. On 8 and 11 September 2014, the respondent refused to attend the first session of an anger management program in the AMC. The author of the Report noted that the respondent had reapplied for parole, but this was refused on 26 August 2014.

13. The respondent disclosed to the author of the Report a long history of substance abuse, commencing at age 14. He told the author of the Report that he had been injecting methamphetamine in the period leading up to these offences. Corrective Service records indicated that the respondent has attempted several residential rehabilitation programs in the past to address substance abuse. He has, however, never completed such a program, usually either discharging himself or being discharged for contravening program rules. His longest period of attendance at a residential rehabilitation facility has only been three weeks. It was noted that the respondent had previously utilised pharmacotherapy treatment and had also undertaken a number of substance abuse short courses in the AMC during periods of previous incarceration. The author of the Report noted that the respondent had expressed willingness to again attempt a residential program, and had applied for admission to the program at Karralika.

14. The author of the Report noted that information provided by ACT Health revealed that the respondent had been a "consumer" of Forensic Mental Health since 2005, and had previously been diagnosed with antisocial and paranoid personality traits. On 10 May 2014, the respondent was moved to the Crisis Support Unit of the AMC after a suspected self harm incident.

15. When questioned about his attitude to these offences, he told the author of the Report that he agreed with the Statement of Facts and said that he had lost his temper. He asserted that the victim's mental health issues were the cause of his behaviour. The author of the Report stated that the respondent made derogatory comments about the victim and demonstrated minimal victim empathy.

16. It was the opinion of the author of the Report that the respondent's mental health and substance abuse issues are risk factors contributing to his propensity to offend. In relation to the present offences, he demonstrated limited victim empathy and failed to fully accept responsibility for his actions. The respondent was considered at high risk of general reoffending and at high risk of future spousal assault, which could be reduced if he engaged with interventions addressing substance abuse, domestic violence and mental health.

17. A Victim Impact Statement was also put before the Magistrate. It speaks of the terror felt by the victim during the course of these assaults upon her and the lingering physical and emotional effects these offences have had on her. The Statement also refers to the effects that witnessing these events and the physical injuries occasioned to the victim had on the victim's four-year-old son.

18. After referring to the undisputed facts and the contents of the Victim Impact Statement, the Magistrate correctly acknowledged that it was a particular aggravating circumstance attending these offences that the victim's child was present and to some extent observed what was happening. The Magistrate then said:

The offences as I have described them are serious, particularly the choking offence and the assault occasioning actual bodily harm. They occurred in a domestic violence situation and a situation where the defendant was clearly the stronger of the pair physically and he used that force and the uneven power between the two of them to quite arrogantly assaults the defendant (sic) in a very serious way, and as I say attempted to choke her to the point where she genuinely believed she was going to die.

The choking offence in my view is above mid range for offences of that nature and it is somewhere between mid range and the highest worst type of offence. The assault occasioning actual bodily harm is in my view about mid range as is the assault charge itself, given the context in which the offences occurred and particularly the choking offence and the effect on the complainant.

19. The Magistrate then went on to consider the respondent's criminal history:

The defendant has a very significant criminal history, but largely for offences of dishonesty and the like. There is only one prior matter on his record for offences of violence, albeit this appears to be a serious offence in itself. In 2010 a charge of recklessly or intentionally inflicting actual bodily harm for which he was sentenced to imprisonment, along with other sentences that were imposed at that day for offences of theft and burglary, and the like. Apart from that he had no former prior history of offences of violence so to that extent some leniency can be afforded to him, in terms of sentencing for offences of this nature. But generally not a great deal of leniency can be afforded to him.

20. After noting the respondent's history of failing to comply with community-based orders and his long history of drug abuse, the Magistrate noted that the respondent had not addressed his drug problem, notwithstanding numerous opportunities in the past. His Honour noted that the respondent was assessed at being at high risk of reoffending and concluded that nothing other than an immediate term of imprisonment was appropriate with respect to these offences. In particular, the Magistrate concluded that periodic detention was not appropriate because of the respondent's history of non-compliance with community-based orders.

21. With respect to the respondent's prospects of rehabilitation, the Magistrate said "they do not look all that promising". He noted that the respondent had been released on parole in early 2014 and that his parole had subsequently been cancelled. The Magistrate then passed sentence:

In respect of charge No (sic) 5125 of 2014 that is the choking charge I record a conviction and order that the defendant be sentenced to imprisonment for 15 months. In my view 18 months was an appropriate sentence on that charge. I have given three months discount for the plea of guilty that the sentence will be cumulative upon the sentence imposed by the ACT Supreme Court on 7 January 2013 (sic).

In respect of the charge of assault occasioning actual bodily harm which is charge 5127 of 2014 I record a conviction. The defendant is sentenced to imprisonment for 10 months. 12 months in my view is a suitable sentence. I have reduced the sentence by two months for the plea of guilty. Three months of that sentence will be cumulative upon the sentence imposed on charge 5125 of 2014. That reflects that this offence occurred later in the day after there had been a break in the involvement of the complainant and yet he returned and assaulted her again. The balance of that sentence will be concurrent on the sentence imposed on charge 5125 of 2014.

In respect of the charge of assault which is 4304 of 2014 I record a conviction. The defendant is sentenced to imprisonment for a period of five months. I have allowed one month discount for a plea of guilty. That will be concurrent with charge 5125 of 2014. I fix a non-parole period of three years and five months commencing 22 May 2011 and ending on 21 October 2014. The effect of what I have done is to add a period of 12 months non-parole to the existing non-parole period.

22. The principals relevant to prosecution appeals were set out by Refshauge J in R v TW (2011) 6 ACTLR 18 as follows:

[3] While s 37E of the Supreme Court Act 1933 (ACT) permits an appeal to the Court of Appeal from any order of the Court, the courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly. They are, accordingly, subject to particular principles set out in a number of cases.

[4] The principles have been helpfully set out by Charles JA (with whom Winneke P and Hayne JA, as his Honour then was, agreed) in R v Clarke [1996] VicRp 83; [1996] 2 VR 520 (at 522), after a careful consideration and analysis of the cases. I summarise those principles as follows:

(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.

(ii) Occasions may arise for the bringing of a Crown appeal:

(a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;

(b) where it is necessary for a Court of Criminal Appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;

(c) to enable the courts to establish and maintain adequate standards of punishment for crime;

(d) to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected;

(e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and

(f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.

(iii) When, in response to a Crown appeal, the court decides to resentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.

(iv) The appellate court has an overriding discretion which may lead it to decline to intervene even if it concludes that error has been shown.

[5] These principles were adopted by this court in R v Eisenach [2011] ACTCA 2 at [8]- [10].

[6] In addition, the court has to approach the appeal in accordance with principles applicable to all appeals against sentence, namely:

(v) The court is not hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. The court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 504-5), or where there is such manifest inadequacy or excess in sentence as to indicate error.

23. Whilst these comments were directed towards a Crown appeal to the Court of Appeal from a sentence imposed in this Court, in my opinion the same principles apply with respect to a prosecution appeal to this Court from a sentence imposed in the Magistrates Court on the basis of alleged manifest inadequacy. One caveat must be applied: since the decision of the High Court in Bui v Director of Public Prosecutions for the Commonwealth of Australia [2012] HCA 1; (2012) 244 CLR 638, followed by the ACT Court of Appeal in R v Chatfield [2012] ACTCA 32, the principle of double jeopardy referred to by Refshauge J no longer applies.

24. These offences occurred in the context of an intimate relationship between the respondent and the victim. The respondent only had access to the victim because of the trust that she reposed in him because of this relationship. Superior courts have repeatedly acknowledged the seriousness of offences of violence within intimate relationships, and that such offences call for sentences strongly denouncing, and designed to deter offenders from, such offending. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said concerning such offences:

As this Court has confirmed in Glen (unreported, Court of Criminal Appeal, NSW, 19 December 1994), Ross (unreported, Court of Criminal Appeal, NSW, 20 November 1996), Rowe (1996) 89 A Crim R 467, Fahda [1999] NSWCCA 267 and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

25. In R v Dunn (2004) 144 A Crim R 180, Adams J (with whom Ipp JA and Sully J agreed) said at [47]:

Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe... the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also denunciation of cases of this kind.

26. General deterrence is an important sentencing consideration in domestic violence offences: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [67] - [68]; R v Burdon (unreported, Supreme Court, ACT, 26 July 2011).

27. The prosecution referred me to a number of authorities in support of its submission that the sentences imposed for the offence of choking a person so as to render them unconscious by the Magistrate was manifestly inadequate. In R v Kien (unreported, Supreme Court, ACT, 29 June 2011) Nield AJ imposed a sentence of three years and nine months' imprisonment for such an offence, which had been reduced from five years in order to reflect the offender's plea of guilty. The offender in that case was 40 years old at the time of the offence and the victim was his estranged wife. Both the victim and his wife came to Australia as refugees from Vietnam, spending some time in refugee camps before arriving in Australia. The offender had a limited but relevant prior criminal history and was subject to a suspended sentence of imprisonment at the time of the offence. He had a good employment history and no alcohol or drug abuse issues. In the course of an argument with his estranged wife he choked her until she became unconscious. The sentence imposed by Nield AJ was upheld on appeal.

28. In R v Watson [2014] ACTSC 395, a sentence which post dates the sentences imposed on the respondent by the Magistrate, the 41-year-old offender was sentenced to a term of four years' imprisonment for an offence of choking a person so as to render them insensible, reduced from four years and six months' imprisonment in recognition of the offender's a plea of guilty. The offender had a considerable criminal history for offences including drug offences and offences of dishonesty. He had a difficult and unsettled childhood, with both of his parents being alcoholics. The offender himself was an alcoholic and also abused illicit drugs. He also had a history of mental health issues. The victim was the offender's partner and was pregnant at the time.

29. In written submissions, the respondent drew my attention to the reference to possible mental health issues in the Pre-Sentence Report and to the fact that he commenced the use of illicit substances at an early age. He submitted that the material before the Magistrate concerning his mental health was such that leniency was available consistent with the principles stated by the Court of Appeal of Victoria in The Queen v Verdins [2007] VSCA 102. In my opinion, the material before the Magistrate concerning the respondent's mental health was very thin. The report simply noted that in July 2014 the respondent "was reviewed for a possible personality disorder" and that he had been previously diagnosed with antisocial and paranoid personality traits. It is not at all clear to me from the evidence which was placed before the Magistrate that the respondent suffers from, or at the time of the offences suffered from, a condition which may reduce his moral culpability for his offending. The evidence, in my opinion, did not establish that the respondent suffered from a condition which called for moderation or elimination of specific or general deterrence as sentencing considerations. The respondent was represented before the Magistrate by a experienced legal practitioner and it may be expected that if there was cogent evidentiary material establishing that the respondent suffers, or suffered, from a mental illness and which was relevant to sentencing him for those offences, it would have been placed before the Magistrate. I note, for completeness, that no application was made on this appeal to lead further evidence on this issue.

30. I accept that a degree of leniency can be shown to the respondent based upon his commencement of illicit drug use at a very young age: see R v Henry [1999] NSWCCA 111; (1999) 106 A Crim R 149. Any evidence to suggest that these offences were connected with the respondent's use of illicit drugs is, however, very thin. The only material I can identify relevant to this aspect of the matter is the reported statement of the respondent in the Pre-Sentence Report that he was "injecting methamphetamine for the two weeks prior to his incarceration on 26 April 2014".

31. The respondent also submitted that the relationship of the non-parole period to the total sentence, being 55 per cent, was not manifestly inadequate. He submitted that there was no guarantee that he would be granted parole by the Sentence Administration Board immediately upon it becoming available, and that any grant of parole would ordinarily carry heavy obligations and involve immediate dire consequences in the event of a breach. He submitted that it was open to the Magistrate, in the proper exercise of his sentencing discretion, to set a non-parole period at 55 per cent of the total sentence.

32. I am satisfied that the sentences imposed by the Magistrate for the offence of choking a person so as to render them unconscious and the offence of assault occasioning actual bodily harm were manifestly inadequate. The starting point of 18 months' imprisonment adopted by the Magistrate before a reduction for the respondent's plea of guilty was manifestly inadequate, bearing in mind the maximum penalty, the objective circumstances of the offence and the subjective circumstances of the offender. In my opinion, an appropriate starting point was one of three years nine months' imprisonment. I will reduce that by eight months to reflect the respondent's plea of guilty, leading to a sentence of three years one month's imprisonment for that offence. The starting point of 14 months' imprisonment for the offence of assault occasioning actual bodily harm was also manifestly inadequate. In my opinion, an appropriate starting point was one of two years imprisonment. I will reduce that to 20 months' imprisonment to reflect the respondent's plea of guilty. The sentence imposed for the offence of common assault, being five months imprisonment, should not be interfered with.

33. The sentences the respondent is currently serving are due to expire on 12 February 2016. The sentence of three years one month's imprisonment for the offence of choking so as to render unconscious should begin on 13 February 2016 and expire on 12 March 2019. The sentence of 20 months' imprisonment for the offence of assault occasioning actual bodily harm should commence on 13 April 2018 and expire on 12 December 2019. The sentence of five months' imprisonment for the offence of common assault should be concurrent with the sentence for the offence of assault occasioning actual bodily harm. The aggregate sentence for the offences which occurred on 24 April 2014 will therefore be one of 3 years 10 months' imprisonment commencing 12 February 2016 and expiring on 12 December 2019. In light of the respondent's history of failing to comply with community-based orders and of criminal offending, a longer non-parole period as a proportion of the sentences being served by him is appropriate. I set a non-parole period expiring on 12 August 2017.

34. The appeal is allowed to the extent that the sentences imposed by the Magistrate for the offences of choking so as to render unconscious and assault occasioning actual bodily harm are set aside. The respondent will be sentenced to a term of three years one month's imprisonment for the offence of choking so as to render unconscious commencing on 13 February 2016 and expiring on 12 March 2019. For the offence of assault occasioning actual bodily harm, he will be sentenced to 20 months' imprisonment commencing 13 April 2018 and expiring 12 December 2019. The sentence imposed by the Magistrate of five months' imprisonment for the offence of common assault is confirmed, but such sentence will commence on 13 April 2018 and expire on 12 September 2018. There will be a non-parole period expiring 12 August 2017.

I certify that the preceding thirty four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.