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[2024] ACTCA 30
respondent. Appeal dismissed. Leave to add grounds concerning Bugmy, Verdins and the construction of s 35(4) was refused ([55], [66], [91], [108]).
The Court of Appeal upheld the sentences. It found that the sentencing judge could treat Jewell’s childhood trauma and mental illness as reducing responsibility in some respects while also increasing concerns about future risk and the need for treatment, deterrence and community protection. The court also rejected the argument that a strong case on two charges should be treated together with a less overwhelming case on another charge to produce one uniform guilty-plea discount. It held that the offences needed individual sentences and that the accumulation was justified by their different seriousness. The appeal was dismissed.
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Brad Jewell appealed sentences imposed for three offences: making an aggravated threat to kill, aggravated stalking, and contravening a Family Violence Order. The Court of Appeal identified maximum penalties of 13 years, 7 years and 5 years respectively ([1]). The sentencing judge imposed a 4-year-and-6-month sentence for the threat, 2 years, 8 months and 23 days for the stalking, and 2 years, 3 months and 9 days for the Family Violence Order offence, with commencement dates producing a total effective sentence of 7 years, 5 months and 19 days ([2]–[4]).
2 cited instruments linked from this judgment.
The offences arose in the context of a former intimate relationship. The appellant had previously been convicted in March 2022 of burglary and two threats to kill the same victim, and remained subject to Good Behaviour Orders attached to suspended sentences when the March 2023 offending occurred ([3], [6]). The earlier offending had involved threats and breaking into the victim’s home. The Court therefore considered the March 2023 events against a history of conduct towards the same victim, rather than as an isolated first episode ([46]).
Between 5 and 30 March 2023, the appellant sent repeated messages and made calls threatening the victim and threatening to attend her home. The judgment records hundreds of messages in some short periods and multiple appearances at the house captured by CCTV ([9]–[13]). At midnight on 6 March, he arrived with a large hunting knife, entered the home, grabbed the victim, pointed the knife at her and said he would kill her. The victim feared for her life ([14]).
An interim Family Violence Order was made on 14 March 2023 and served on the appellant on 18 March. The communications and attendance at the victim’s home continued after service. The judgment records daily calls between 19 and 27 March and attendance at the home on several days in that period ([15]–[19]). The primary judge described the breach as extremely serious, noting that it continued over nine days after service and that the order appeared to have little deterrent effect ([22]).
The sentencing judge considered reports concerning the appellant’s mental health and background. The materials included an earlier psychiatric report, a pre-sentence report and a psychological assessment. The latter described Complex PTSD associated with childhood trauma and linked trauma to poor emotional regulation, attachment difficulties and aggression ([23]–[29]). The sentencing judge accepted that the appellant’s childhood involved violence and an unstable parental environment, and that his mental health had some connection with the offending ([31]–[35]).
The appeal raised three principal matters. The appellant argued that the sentences were manifestly excessive, particularly because of the degree of accumulation. He also sought leave to add grounds alleging that the sentencing judge had misapplied Bugmy and Verdins, and had wrongly differentiated the guilty-plea discounts between offences ([36]–[38], [67]–[75], [92]). The Court refused leave on the proposed grounds and dismissed the appeal ([55], [66], [91], [108]).
The Court rejected the claim that the Bugmy analysis was “unbalanced”. Its central point was that childhood disadvantage does not have to mitigate every sentencing purpose to the same extent. A sentencing court may conclude that childhood trauma reduces moral culpability while also contributing to poor regulation and an increased risk of future offending. The Court described this as a sentencing exercise in which the relevant purposes pull in different directions ([47], [53]).
The appellant relied on employment and supportive relationships with family and children as pro-social circumstances. The Court did not treat those factors as irrelevant. It reasoned, however, that they had existed when the offending occurred and had not prevented the serious course of conduct, including the immediate continuation of contact after service of the Family Violence Order ([48]). Nor had the appellant completed the treatment identified as necessary to produce behavioural change. The available material also included evidence of limited insight into the offending and a later relationship with another woman ([49]–[52]). On this record, the Court accepted the sentencing judge’s assessment that the pro-social factors did not extinguish the relevance of childhood disadvantage to risk and community protection.
The Court’s treatment of Verdins followed a similar structure. It did not accept that mental illness had to count only in the appellant’s favour. It noted the evidence about depression and PTSD, the suggested connection between mental illness and offending, and the appellant’s cessation of prescribed medication before the offending ([58]–[60]). The sentencing judge had considered that mental impairment could reduce the force of general deterrence, make custody weigh more heavily, and make rehabilitation important. The judge had also considered that the impairment could increase danger to the community and make specific deterrence more significant ([61]–[62]).
The appellate court emphasised that the possibility of future treatment was not, by itself, a complete answer to the identified risk. The appellant had completed four sessions of a brief intervention programme, while the psychological report recommended substantially more therapy and anger-management work. The Court considered that the sentencing judge could take account of both willingness to engage in treatment and the fact that treatment had not yet addressed the underlying problems ([63]–[65]). It therefore found no basis to say the mental-health factor had been improperly skewed.
The guilty-plea argument concerned s 35(4) of the Crimes (Sentencing) Act 2005 (ACT). That provision restricts a significant sentence reduction for a guilty plea where the prosecution case for the offence was overwhelmingly strong, based on established facts ([70]). The sentencing judge gave a 25 per cent discount for the threat charge but 9 per cent for the stalking and Family Violence Order offences, because the latter two were supported by objective phone and CCTV evidence that made acquittal realistically unlikely ([68], [72]–[73]).
The appellant argued for one 25 per cent discount across all three offences, relying on s 145 of the Legislation Act 2001 (ACT), which says singular words include the plural ([76]–[78]). The Court rejected that construction for several linked reasons. Sentences are imposed for individual offences, and Territory law did not provide for an aggregate sentence across multiple offences ([83]). Reading s 35(4) collectively would also create an awkward result: if one prosecution case among several was not overwhelmingly strong, the restriction might cease to operate for all offences sentenced together, including factually unrelated minor charges ([84]–[86]). The rest of s 35 consistently referred to an individual offence, an individual lesser penalty, and the nature and circumstances of that offence ([87]–[89]). The Court also noted the absence of authority supporting the appellant’s construction ([90]).
Finally, the Court rejected the totality challenge. It applied the approach that individual sentences should, so far as possible, reflect the gravity of each offence while the effective total should reflect the criminality of all offences ([100]). It stressed that there is no single correct way to structure concurrency and accumulation, and that appellate intervention is limited to cases where the sentences exceed what could justly be imposed ([96], [101]).
The offences occurred over about a month and had factual connections, but the Court considered their criminality distinct. The threat to kill involved a knife and an immediate threat in the victim’s home. The stalking involved persistent communications and approaches. The Family Violence Order offence involved continued conduct after a court order had been made and served ([102]–[105]). Some concurrency recognised the connections, while accumulation reflected the separate gravity of the offending ([106]). That reasoning supported dismissal of the appeal.
The judgment did not purport to create new general sentencing principles for childhood disadvantage or mental impairment. It applied Bugmy and Verdins to the evidence before it. On the Court’s account, Bugmy required “full weight” to be given to the effects of childhood disadvantage, but that did not mean the disadvantage had equal mitigating relevance for every sentencing purpose. The judgment relied on the possibility that culpability may be reduced while risk and community-protection considerations are increased ([47], [53]–[54]).
Likewise, the Court applied the Verdins framework to the appellant’s mental-health evidence. It treated impairment as potentially relevant to different sentencing considerations in different ways, including general deterrence, specific deterrence, custody and rehabilitation ([61]–[65]). The judgment’s contribution in this case is its application of those principles to the evidence of continuing family-violence offending, untreated trauma, limited insight, a recent history involving the same victim, and a breach of a protective order. It does not state that mental illness or childhood disadvantage will invariably increase risk.
The statutory interpretation issue concerned the interaction between s 35(4) and s 145. The appellant’s construction would have treated multiple pleas collectively for the overwhelmingly-strong-case limitation. The Court rejected that reading, reasoning from the structure and operation of the ACT sentencing legislation, including the absence of aggregate sentencing and the individual-offence character of s 35 ([82]–[90]). The decision therefore supports an individual-offence reading of this particular provision on the statutory text and context described in the judgment. It does not establish that s 145 can never apply to a singular term in another statutory setting.
On multiple sentences, the Court applied the totality approach described in Nguyen: individual sentences should reflect each offence, while the total sentence should reflect the total criminality, with moderation and accumulation depending on the case ([100]). It also applied the proposition that different criminalities may require separate consideration even where offences are part of a connected course of conduct ([102]–[106]). The judgment does not replace the discretionary nature of totality sentencing with a fixed formula.
At [53], the Court said that giving “full weight” to childhood disadvantage could make sentencing purposes “pull in different directions”. In plain English, the same background may help explain and reduce the offender’s blameworthiness while also being relevant to the risk of future offending. The court’s task is to weigh both consequences rather than treating the background as a one-way discount.
At [51], the Court said the appellant’s pro-social factors did not “extinguish” the effect of his deprived childhood on other sentencing purposes. This means that employment and family support could count in his favour without automatically answering concerns raised by the offending, history or evidence about treatment and insight. The conclusion was based on the circumstances recorded in this case, including the failure of those existing factors to prevent the conduct at issue ([48]–[52]).
At [65], the Court explained that the appellant’s mental-health diagnosis could be relevant both to factors favouring him and to community protection and specific deterrence. In practical terms, evidence that explains how an offender’s condition contributed to offending may reduce the weight of some sentencing considerations, but it does not necessarily eliminate the need to assess future risk or deterrence. The Court also treated the proposed treatment as relevant, but not as having already resolved the risk ([63]–[65]).
At [83], the Court stated that there was no capacity under Territory law to impose an aggregate sentence for multiple offences. That point mattered to statutory interpretation: s 35(4) operated in a framework where each offence was sentenced individually. The Court considered that reading the provision collectively would be inconsistent with that framework and could produce results dependent on which unrelated charges happened to be sentenced together ([83]–[89]).
At [102], the Court cautioned that calling the offending a “course of conduct” could obscure the seriousness of individual criminal acts. In plain English, a connection between offences does not mean that their distinct features can be merged into one undifferentiated episode. The court still needs to assess the gravity of each offence, while also considering how concurrency and accumulation make the total sentence fair and appropriate ([100]–[106]).
The Bugmy and Verdins reasoning is most directly relevant where an offender relies on childhood disadvantage or mental impairment as mitigating factors, and the evidence also raises a question about risk, treatment or protection of others. In this case, the Court considered evidence linking trauma to poor emotional regulation and aggression, evidence that recommended treatment remained incomplete, and offending that continued despite a protective order ([28], [43]–[45], [48]–[52], [63]–[65]). The decision shows that the sentencing analysis may need to address the different ways those circumstances bear on moral culpability, rehabilitation, specific deterrence and community protection.
The statutory interpretation reasoning is relevant where an offender argues that the guilty-plea restriction in s 35(4) should be applied collectively across several offences. The Court rejected that approach because of the language and structure of s 35 and the individual-offence sentencing framework described in the judgment ([82]–[90]). A materially different statutory scheme, or legislation permitting aggregate sentences, may raise different interpretive questions; the judgment itself does not resolve those scenarios.
The totality reasoning applies to challenges to the structure of multiple sentences where offences are connected in time or circumstances but differ in their criminality. Here, the threat, stalking and post-order breach were connected to the same victim and occurred within a relatively short period, but involved distinct features and periods of conduct ([102]–[106]). The Court accepted some concurrency while finding that separate consideration and accumulation were required to reflect the distinct gravity of the offences.
The decision is not a general rule that every persistent course of family-violence conduct requires accumulation, nor that every breach of an order warrants a particular sentence. Its reasoning depended on the offences, their seriousness, the prior history, the timing and persistence of the conduct, and the evidence before the sentencing judge.
The supplied judgment is dated 15 November 2024 and contains no citations to decisions made after it. On the material provided, it is not possible to describe how later courts have treated or applied Jewell v DPP. This analysis therefore does not infer subsequent approval, limitation or departure.
Within the judgment itself, the Court relied on earlier authorities for the principles it applied. It applied Bugmy to the treatment of childhood disadvantage and referred to Veen (No 2) for the tension between sentencing considerations ([47], [53]). It applied Verdins to mental impairment and referred to De La Rosa concerning sentencing objectives that can pull in opposing directions ([61], [65]). It also drew on Nguyen for the relationship between individual sentences and the overall sentence, and Royer for recognising the interrelationship between offences through sentence structure ([100], [106]).
The Court referred to Carberry in discussing the variety of acceptable approaches to multiple sentences ([96]), and to Toumo’ua on the obscurity of the legislative intention underlying s 35(4) ([81]). Those references identify the authorities considered in Jewell, but the supplied text gives no basis to state how those cases or Jewell were treated in later decisions.
The judgment leaves open how s 35(4) would operate in statutory contexts with different language or a legislative mechanism for aggregate sentences. The Court’s reasons turn on the structure of the ACT Act, including the individual-offence approach and the absence of aggregate sentencing power ([83], [87]–[89]). The decision does not answer whether a differently drafted plea-discount provision would support a collective assessment.
The judgment also does not establish a general evidentiary threshold for finding that childhood disadvantage or mental impairment increases future risk. The Court assessed the reports and conduct in this case, including the treatment recommendations, limited treatment received, limited insight, prior offending against the same victim, and conduct after service of the Family Violence Order ([43]–[52], [58]–[65]). The reasoning does not state that any particular diagnosis, background or relationship history will itself demonstrate increased risk.
Questions may also arise about how sentencing courts should assess the strength of separate prosecution cases where multiple offences are pleaded to and sentenced together. Jewell rejects the proposed collective approach to s 35(4), but does not supply a comprehensive method for assessing the evidence relevant to each offence in every procedural setting ([72], [82]–[90]).
Finally, the judgment does not prescribe a formula for how much accumulation is appropriate when offences form part of a connected course of conduct. It confirms that individual seriousness and totality both matter, and that the sentencing structure may combine concurrency and accumulation ([100]–[106]). The precise balance remains dependent on the offences and circumstances in the particular case.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Jewell v DPP Citation: [2024] ACTCA 30 Hearing Date: 19 August 2024 Decision Date: 15 November 2024 Before: Mossop and Taylor JJ, Ainslie-Wallace AJ Decision: The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Leave to amend appeal notice – appellant sought to expand grounds of appeal – whether primary judge erred in failing to properly apply the Bugmy and Verdins principles – where existing pro-social factors were said to “neutralise” risk of reoffence – childhood experience relevant to risk of re-offending – giving “full-weight” to Bugmy and Verdins will see purposes of sentencing pull in different directions – leave not granted – whether primary judge erred in discount to be imposed – where prosecution case overwhelmingly strong with respect to two charges – where primary judge applied different discounts between pleas – imposition of singular discount for multiple pleas would operate to obscure individualised nature of sentencing exercise – leave not granted APPEAL – CRIMINAL LAW – Appeal against sentence – aggravated threat to kill – aggravated stalking – contravening Family Violence Order – breach Good Behaviour Order – whether individual and overall sentences imposed were manifestly excessive – whether primary judge applied excessive accumulation to individual sentences – where offending occurred over one month – criminality of each offence differed substantially – further concurrency risked eliding seriousness of individual acts – appeal dismissed STATUTES – INTERPRETATION – Interpretation of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) in the context of s 145 of the Legislation Act 2001 (ACT) – whether reference to singular charge in s 35(4) should be interpreted to include reference to the plural – allowing single overall discount for pleas of guilty to multiple offences – operational difficulty of such an interpretation – absence of power in the Act to impose aggregate sentences for multiple offences – interpretation of s 35(4) not expanded to include the plural Legislation Cited: Crimes Act 1900 (ACT) ss 30, 35 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A Family Violence Act 2016 (ACT) s 43 Legislation Act 2001 (ACT) ss 5, 145 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 Royer v The State of Western Australia [2009] WASCA 139 R v Carberry [2023] ACTCA 32 R v Toumo’ua [2017] ACTCA 9 R v Verdins [2007] VSCA 102; 16 VR 269 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Parties: Brad Jewell (Appellant) Director of Public Prosecutions (ACT) (Respondent) Representation: Counsel J White SC (Appellant) K McCann (Respondent) Solicitors Legal Aid ACT (Appellant) Director of Public Prosecutions (ACT) (Respondent) File Number: ACTCA 49 of 2023 Decision Under Appeal: Court/Tribunal: Supreme Court Before: McWilliam J Date of Decision: 23 November 2023 Case Title: DPP v Jewell Citation: [2023] ACTSC 348 Court File Number(s): SCC 124 of 2023; SCC 270 of 2023 THE COURT Introduction
Brad Jewell (the appellant) appeals from sentences imposed by a judge of the Court on his pleas of guilty to three offences: (a) Making an aggravated threat to kill another person contrary to s 30 of the Crimes Act 1900 (ACT) (the Crimes Act). This offence carries a maximum penalty of 13 years imprisonment; (b) Aggravated stalking contrary to s 35 of the Crimes Act. This offence carries a maximum penalty of 7 years imprisonment; (c) Contravening a Family Violence Order contrary to s 43 of the Family Violence Act 2016 (ACT). This offence carries a maximum penalty of 5 years imprisonment, a 500 penalty unit fine or both.
The primary judge imposed the following sentences: (a) On the aggravated threat to kill, a sentence of imprisonment of 4 years and 6 months backdated to commence on 30 March 2023; (b) On the offence of aggravated stalking, a sentence of imprisonment of 2 years, 8 months and 23 days to commence on 23 September 2026; (c) On the offence of contravening a family violence order, imprisonment of 2 years, 3 months and 9 days to commence on 23 April 2028.
At the time of the commission of the offences to which the appellant pleaded guilty, he was bound by three Good Behaviour Orders attached to Suspended Sentence Orders having been convicted in March 2022 of burglary and two counts of making a threat to kill a person. The victim in relation to those offences was the same victim in the present matter. The primary judge determined to impose the suspended sentences in relation to those offences. In relation to the burglary count, the sentence imposed was 8 months of imprisonment. On each of the two counts of make threat to kill a person, the sentence imposed was 6 months of imprisonment. Each sentence was to commence on 18 January 2030 resulting in partial cumulation.
The effective total sentence imposed by the primary judge was one of 7 years, 5 months and 19 days imprisonment commencing on 30 March 2023 and expiring on 17 September 2030. The non-parole period was 3 years and 9 months which will expire on 29 December 2026, which is the earliest date on which the appellant may be released from prison. Background
Before turning to the grounds of appeal, it is useful to give some background to the offences taken from the primary judge’s reasons and the material before her Honour which was uncontroversial, as context to our consideration.
The appellant and the victim had been in an intimate domestic relationship which commenced in 2021 and concluded in early 2023. The relationship was marked by violence perpetrated by the appellant against the victim. The offences for which the appellant received Suspended Sentence Orders in March 2022 reflect his making threats to kill the victim and breaking into the victim’s home. In that episode, the appellant made a throat cutting gesture to the victim and said “[t]his is how it’s going to be, I’m not going to stop now. You’re dead and she’s dead” (a reference to the victim’s friend who was present at the time). The appellant continued and said: “[t]his ain’t going to stop until the cops kill me”.
Aggravated stalking
On 5 March 2023, the appellant sent 323 text messages to the victim threatening her and threatening to attend at her house. CCTV footage of that day showed the appellant at the victim’s house on three occasions.
Continuing, on 6 and 7 March 2023, the appellant sent 175 text messages and made 40 phone calls to the victim threatening to come to her house. On 6 March 2023, the appellant was seen on CCTV at the victim’s house. On 7 March 2023, the appellant sent messages to the victim threatening her with words such as “times up now” and “I’m coming for you bitch”. At 7:30pm on 7 March, the appellant sent a message: “You’ve left the laundry door open, I’ll close it for you”. After the appellant told the victim he would come over the back fence and close the door, she sent him a text telling him to stay away and told him that her older son was home. The appellant sent further threatening messages to the victim. CCTV again captured an image of the appellant at the victim’s house on 7 March. She and her son hid in the roof, terrified.
On 8 March 2023, the appellant sent 228 text messages to the victim and on 9 March 2023, 18 text messages.
Between 10 March and 13 March 2023, the appellant made dozens of calls and sent texts to the victim including threats that the appellant would attend the victim’s house on 11 March. The texts included: “I’ll see you later today” and “I’m going to your place after 2pm”.
On 13 March 2023, the victim answered a call from the appellant in which he threatened to kill her and on 14 March 2023, the appellant sent the victim text messages in which he said, amongst other things: “I’ll be back and if you haven’t answered me I’m coming inside.
Aggravated threat to kill
Breach of family violence order
On 14 March 2023, a magistrate made an interim Family Violence Order to protect the victim from the appellant and she was moved to emergency housing. However, the Family Violence Order was not served on the appellant until 18 March 2023.
From 14 March 2023, the appellant continued to call and text the victim every day. The texts sent to the victim on 14 March included threats to enter her house. On 18 March 2023 the appellant sent the victim texts in similar terms to his earlier themes but including the following: “I apologise for what ever happens but you’ve pushed me so far past my limit I don’t know what’s going to happen” and “I guess it’s my time to die then. I’m coming looking everywhere for you and no one better get in my fucking way” and “[n]ot a single word you fucking disrespectful piece of shit.”
The Family Violence Order was served on the appellant on 18 March 2023. Between 19 and 27 March 2023 the appellant called the victim every day; in total some 34 calls and 9 text messages. He also attended at her house on 20, 21, 22, 24 and 25 March and on 27 March. On some of those occasions he was there more than once.
On 27 March 2023 the appellant sent the victim text messages. On 28 March the appellant called the victim three times and sent a text message. Apparently on that date the police called at the appellant’s house, but the door was not answered. At 9:43 pm the appellant sent the victim a text; “they missed me…”.
On 29 March 2023, the appellant sent the victim a text saying, amongst other things, that he hoped she would die. He also sent other texts. The victim rang the police. The police attempted to speak to the appellant at his house but were not able to find him. They returned twice, at 1:45 am and at 3:40am on 30 March when they found the appellant lying in bushland.
Assessment of objective seriousness
In assessing the objective seriousness of the offending conduct, her Honour said in relation to the offence of aggravated threat to kill: 44. Here, the threat was in person. The subjective fear engendered in the victim was at its highest – she thought she was going to actually die. There is no reference to the use of drugs. The nature and circumstances of the threat was also of the most serious kind, in that the offender was standing in the victim’s home at midnight, had grabbed her and pointed a hunting knife at her. 45. The threat was capable of immediate realisation. There was premeditation in that the offender travelled to the victim’s house with the knife and banged on the door in order to gain physical access to the victim. … 47. Objectively, this is a very serious example of what is, by definition, a serious family violence offence (s 34B of the Sentencing Act).
Her Honour then turned to the assessment of the objective gravity of the aggravated stalking offence and, by reference to the criteria within the definition of the offence, considered the evidence before her. Her Honour said at [59] that here, the offender engaged in “… almost the full range of the conduct proscribed by statute, on many occasions, over a sustained period”.
As to the offence of contravene the Family Violence Order, her Honour referred to indicia drawn from authority which aided in the assessment of the objective seriousness of the offending. The primary judge noted that the features of the conduct were all of significant seriousness and the breach was not isolated. Her Honour said: 66. The breach must have been deliberate, as the offender had been arrested before he was even served with the FVO. The offender was then served with the FVO and his conduct constituting the breach occurred from the following day onwards for nine days. 67. When comparing the offender’s conduct towards the victim before she took out the FVO with that after the offender was served with the FVO, such order regrettably appears to have had little effect in terms of deterring the offender. Taking these features into account, while the conduct was not the most egregious falling within the spectrum, it was certainly extremely serious. Subjective circumstances of the offender
Her Honour had the benefit of both a Pre-Sentence Report dated 17 July 2023 prepared by ACT Corrective Services officer, Ms McKay, a psychiatric report of Dr Barker dated 15 December 2021 prepared for earlier proceedings which related to the appellant’s conduct towards the victim, and a psychological assessment of the appellant conducted by Mr Matt Visser, dated 4 September 2023.
Dr Barker concluded that the appellant was suffering from a major depressive disorder that has responded well to treatment with medication and psychological input. Dr Barker thought there was some connection between the depressive illness symptoms and the offences, including an impaired ability to exercise proper judgment, make calm and rational choices and to think clearly, making him disinhibited, impairing his ability to appreciate the wrongfulness of his conduct and obscuring the intent to commit the offence. He could not, however, identify a causal link between the offending and the illness.
Bugmy Principles
Her Honour accepted that the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) applied in this case and, after quoting the well-known passages from that case, said: 75. The material establishes, on the balance of probabilities, that the offender was exposed to violence on behalf of his parents during a dysfunctional childhood. I accept the offender did not have a safe and stable parental environment growing up, and this is likely to have impacted on his lack of emotional regulation and decision-making. Such impacts are well documented. …
After referring to the prosecution submission that the Bugmy principles may “pull the sentencing court in different directions” her Honour said: 77. This is undoubtably so as a general principle and necessitates a careful approach in the circumstances here, where the Bugmy principles apply. Here, the offender’s moral culpability is somewhat reduced on account of his childhood. Clearly, he has poor emotional regulation, impulse control and decision-making abilities. This poor regulation no doubt contributed to the present offending. 78. However, it also increases the risk of future offending and the need for the community to be protected. Given the serious conduct involved in each of the offences, the offender was clearly in no fit state to embark upon a new relationship and yet one of his final messages to the victim documented above refers to him reactivating his Tinder account, which I infer was the offender telling the victim he was moving on to seek connections with other women. The breach of the FVO demonstrates that a court order has not been sufficient deterrence for this offender. In an attempt to protect the community, including women with whom the offender may seek to form any type of attachment in the future, weight should be afforded to rehabilitation. Counselling and treatment are required to effect behavioural change. Addressing these areas will be reflected in the sentence to be crafted. … Verdins Principles
Her Honour then turned to the effect that the appellant’s mental health had on the sentencing process in accordance with R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins), and found that his poor mental health overlapped with the circumstances of his upbringing. She referred to the reports of Dr Barker and Mr Visser and referred to Mr Visser’s conclusion that the offender was suffering from Complex PTSD.
Her Honour, in relation to the principles established in Verdins, said: 83. … I accept that the offender’s diagnosis means that again the moral culpability of his offending is reduced. The offender has been prescribed medication to assist in managing his mental health. However, at the time of the offending, the offender had stopped taking his medication and I accept the submission made by the legal representative for the offender that this goes some way to explaining what appears to have been an uncontrollable emotional and psychological state over the period of about a month․ 84. Accepting the medical opinion before the Court, I find there is some connection between the offender’s diagnosis of PTSD and his offending. In particular, the uncontested statement that “complex childhood trauma has been correlated with poor emotional regulation, attachment issues, and physical aggression” appears to me to be directly applicable in the circumstances of this case. 85․ I further accept that full-time custody may weigh more heavily on this particular offender, (s 33(1)(r) of the Sentencing Act) and his diagnosis has – in that respect – a bearing on the kind and conditions of sentence to be imposed.
The grounds of appeal
The Notice of Appeal filed on 20 December 2023 contends that both the individual sentences imposed, and the overall total sentence are manifestly excessive.
In submissions, the appellant sought to expand the grounds to include grounds that the primary judge erred in not applying the full 25% discount referrable to a plea of guilty to all three charged offences and that the primary judge erred in failing to properly apply the Bugmy and Verdins principles.
Counsel for the appellant acknowledged that leave was required to add these grounds, but contended that a grant of leave required a consideration of the merits of the grounds and that would be a matter for the Court in the appeal. Counsel for the respondent submitted that leave should be refused because the grounds lack merit.
Bugmy Principles
There was no dispute that the principles established in Bugmy were relevant to her Honour’s sentencing exercise. The appellant asserted that her Honour’s application of the Bugmy principles was “unbalanced” because: … The primary judge seems to have assumed, wrongly, that the factors went both ways in this case, in particular, enlivening the protection of the community and fears of further offending. They do not.
The appellant contended while the appellant’s “… poor emotional regulation, impulse control and decision-making abilities …” reduced his moral culpability for the offending, those same factors did not give rise to her Honour’s conclusion that, “it also increases the risk of future offending and the need for the community to be protected”.
The appellant argued that other pro-social factors which favour the appellant, such as the appellant’s employment, good supportive relationships with his mother and siblings, and his children of an earlier relationship militated against any increased risk from which the community required protection.
In support of the submission, counsel for the appellant pointed to the assessment of Ms McKay that the appellant was at a “low risk of re-offending”, though conceded her Honour was not bound by this characterisation.
Mr Visser, the psychologist whose report was before her Honour was not as confident as Ms McKay in relation to future risk. He noted Ms McKay’s opinion as to the appellant’s risk of re-offending as well as those factors she considered informed the likelihood of re-offending. Notwithstanding Ms McKay’s view, Mr Visser identified that the appellant should have “no less than ten” sessions of trauma focussed therapy with a psychologist or clinical psychologist. He noted that the appellant had received “no treatment in relation to his [childhood] trauma” and also recommended that the appellant engage in anger management therapy. Ms Mckay noted in her report that the appellant had completed four sessions of the “brief Intervention Clinic” while in custody and resumed taking his anti-depressant medication.
Mr Visser’s report was prepared before sentence and in the report, he reflected on appropriate bail conditions. He recommended that they include a restraint on the appellant seeing the victim. He added: “[w]ere they to reunite I would have serious concerns for her safety”.
Significantly, when discussing the offence with the appellant, Mr Visser noted that when pushed, “[the appellant] was able to demonstrate some remorse and insight into the experience of [the victim], although appeared to justify his behaviour and generally gave a substantially minimised account compared with that contained in the statement of facts”.
Counsel for the appellant referred to the appellant’s conduct as a “mad month” in submitting that the appellant’s conduct was isolated. This submission is not entirely borne out by the appellant’s criminal history. As is clear from her Honour’s consideration, the breach of Good Behaviour Orders came almost a year to the day before the appellant’s campaign against the victim reflected in the three offences before her Honour. As we have already observed, the prior offending against the same victim saw the appellant commit two offences of threatening to kill her and one offence of burglary by breaking into her home.
Verdins principles
The appellant similarly complains that in assessing the effects of the appellant’s mental health, her Honour approached that task in an “unbalanced” way. This ground must then be a challenge to her Honour’s exercise of discretion in relation to the effect of the Verdins principles on the appellant.
Counsel for the appellant argued that the factors arising from the Verdins principles here “went only one way”, that is, that there were no “countervailing factors” that enlivened other sentencing considerations and her Honour erred in not making that finding.
While Mr Visser suggested that the offender was most likely suffering from Complex PTSD associated with his childhood trauma, Dr Barker, on his assessment of the appellant for the earlier offences against the victim, suggested that the appellant suffered from a depressive disorder. Dr Barker noted that the appellant had been prescribed anti-depressant medication. Dr Barker was unable to “identify a causal link between Mr Jewell’s offending and his depressive illness”. Mr Visser’s report noted that before the commission of the instant offences, the appellant had ceased taking the prescribed medication. Mr Visser suggested “a moderate causal relationship between the offending behaviour and his mental illness”.
The primary judge, in light of the extended diagnosis contained in Mr Visser’s report found that there was “some connection” between the PTSD diagnosis and the offending conduct.
Counsel for the appellant submitted that the appellant’s mental health “could be treated through therapy” and thus her Honour’s view that the appellant’s mental health created a risk to the community was an error. We do not agree.
Her Honour’s approach to the effect of the offender’s mental health diagnosis revealed thoughtful consideration of the complexity involved: 86. As with the operation of the Bugmy factors, taking the offender’s mental impairment into account and applying Verdins principles may result in sentencing objectives that pull in opposite directions: DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. As a result of his mental health, the offender may not be an appropriate vehicle for general deterrence. However, because of his impairment, the offender may present a more significant danger to the community, and the consideration of specific deterrence may require more weight. The evaluation of the extent of significance of the above considerations is discretionary: Blake v The Queen [2021] NSWCCA 258 at [42]. 87․ The offender’s mental health could be treated through therapy with an appropriate psychologist. The offender is willing and able to engage in such therapy. Further, Mr Visser opines that engagement in an anger management course would be of value to the offender. In the same vein, while in custody, the offender completed all four sessions of the Brief Intervention Clinic through Custodial Mental Health Services. There is some evidence that the offender is willing to address his mental health issues. As I have already noted, such rehabilitation is important in this case to reduce the risk of harm to the community.
Discount on sentence for plea of guilty
The appellant contends that the primary judge erred in the manner in which she discounted the appellant’s sentences to reflect his guilty pleas. It was argued that the primary judge should have afforded the appellant a 25% discount on each offence.
The primary judge afforded the appellant a 25% discount from the sentence otherwise to be imposed in relation to the aggravated threat to kill offence, and in relation to the offences of aggravated stalking and breach of Family Violence order, a discount of 9% was afforded for each.
The Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) provides at s 33(1)(j) that a plea of guilty is a relevant matter to be taken into account in sentence.
Section 35 of that act concerns the reduction of sentence because of a guilty plea and says: (1) This section applies if— (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (7) In this section: available documents, in relation to the offence, means any of the following: (a) any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence; (b) depositions taken at any committal proceeding for the offence; (c) any written statements or admissions used as evidence in any committal proceeding for the offence; (d) any other relevant written documents. defence means— (a) the offender; or (b) any lawyer representing the offender. established facts means facts established by— (a) evidence given at the trial; or (b) available documents; or (c) admissions by the offender; or (d) submissions made by the prosecution or defence.
Manifestly excessive sentence
While the ground in the Notice of Appeal contends that the individual sentences and the total sentence were manifestly excessive, in submissions, counsel for the appellant narrowed the ground to reflect on the degree to which her Honour accumulated the individual sentences and it was submitted that the degree of accumulation led to the imposition of sentences that were manifestly excessive.
The test of whether imposed sentences are manifestly excessive is whether the sentence imposed is such that the appeal court can infer that there must have been a misapplication of principle even though error is not apparent from the sentencing judge’s reasons. Further, it is for the appellant to satisfy the Court that “individually and/or collectively” the sentences imposed were unreasonable, plainly unjust or outside the available sentencing range.
As we have said, the primary judge imposed a total sentence of 7 years, 5 months and 19 days and a non-parole period of 3 years and 9 months, approximately 50% of the total sentence. The appellant made no challenge to the proportion of head sentence to non-parole period.
Her Honour structured the sentences: (a) On the aggravated threat to kill, the primary judge imposed a head sentence of 4 years and 6 months to commence on 30 March 2023 and to conclude on 29 September 2027. (b) On the aggravated stalking charge, her Honour imposed a head sentence of 2 years, 8 months and 23 days to commence on 23 September 2026 and to conclude on 14 June 2029. (c) On the contravene a Family Violence Order, a head sentence of 2 years, 3 months and 9 days was imposed to commence on 23 April 2028 and to conclude on 31 July 2030. (d) For the sentences imposed arising from the breach and cancellation of the Good Behaviour Orders, with respect to the burglary count, her Honour imposed a fixed term of 8 months to commence on 18 January 2030 and to expire on 17 September 2030. For each of the two threats to kill, her Honour imposed a fixed term of 6 months to commence on 18 January 2030 and to expire on 17 July 2030. No complaint is made about these sentences, being almost wholly concurrent with the other sentences.
Perhaps there is no better place to start a consideration of the principles governing totality than R v Carberry [2023] ACTCA 32 at [92]: There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, at [56]. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill v The Queen (1988) 166 CLR 59.
In considering the imposition of sentence, her Honour took into account that these offences occurred in the context of an intimate relationship, while the appellant was subject to conditional release and that notwithstanding being served with a protection order, the offending continued. Her Honour took particular account of specific deterrence while again acknowledging the appellant’s mental health issues which she said would require ongoing targeted intervention.
Orders
I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 15 November 2024
Jewell
DPP [2024] ACTCA 30
(1988) 166 CLR 59
Appeal dismissed. Leave to add grounds concerning Bugmy, Verdins and the construction of s 35(4) was refused ([55], [66], [91], [108]).
The appellant and the victim continued their relationship. After they separated, the victim moved into her own accommodation where she lived with her three children aged between 11 and 17 years.
Between 5 and 30 March 2023, the appellant committed the offences to which he pleaded guilty.
The Pre-Sentence Report reported the appellant as saying: … in the weeks prior to the offences his ex-partner had ceased contact with him, leaving him unsure about the status of their relationship and concerned for her wellbeing. … He claimed that the knife mentioned in the Statement of Facts was a commonly used work tool for him, hence the reason he had it on his person. He stated that he had never intended to cause any harm to the victim or her children as he was in love with her, however he had been experiencing suicidal ideation. … He stated his intention to comply with the Family Violence Order in place, and to not attempt to contact her again.
The report noted that the appellant “verbalised victim empathy regarding the fear felt by the victim” and said he felt he deserved his time in custody.
Ms McKay expressed the opinion that the appellant was at a low risk of re-offending. She observed his protective factors were his employment and supportive family relationships, although the report noted that his family live interstate.
Mr Visser, the clinical psychologist who prepared a report for the sentencing hearing, considered that the appellant suffered from Complex PTSD arising from his early childhood circumstances. He said that poor emotional regulation, attachment issues and physical aggression, all of which are demonstrated by the offender, have been correlated to complex childhood trauma. He suggested a “moderate causal relationship” between the offending behaviour and his mental illness.
Her Honour set out the appellant’s background at [71]-[73]. In particular, the primary judge noted at [71] the circumstances of the appellant’s early years. His parents both abused alcohol, his father was violent to him, and his parents were violent to each other. The appellant’s father died when the appellant was 18. He was described as having good supportive relationships with his mother and his siblings. It was also noted that he has had a relationship from which there are two children. It was reported that he and the mother of the children enjoy an amicable relationship, and he has frequent contact with the children.
The appellant left school at 13 and has been in full time work ever since. At the date of sentence, he was self-employed.
Her Honour said that while, as a result of the appellant’s mental health he may not then be an appropriate vehicle for general deterrence, because of his impairment, the appellant may present a more significant danger to the community, and the consideration of specific deterrence therefore may require more weight (at [86]). Her Honour said, referring to the reports before her, that rehabilitation of the appellant is important to reduce the risk of harm to the community.
Turning then to the submission that her Honour’s treatment of the Bugmy principles was “unbalanced”, a ground which must be a challenge to the exercise of her Honour’s discretion. As the High Court in Bugmy acknowledged, giving “full weight” to the effect on an offender of their deprived childhood does not result in that experience having equal mitigatory relevance for all of the purposes of sentencing: Bugmy at [44]. The appellant’s submission that the application of Bugmy in this matter “only went one way” cannot be accepted. The appellant relied upon the “pro-social” factors in his favour in support of the “one way” submission. The effect of the appellant’s argument is that the “full weight” of his deprived childhood, in combination with the “isolated” nature of the offences and the pro-social factors, only influenced an assessment of his moral culpability. We do not agree.
The first matter to observe is that all of the factors identified as “pro-social” and referred to by her Honour at [71]-[73] were in existence at the time the appellant committed the offences. They were not sufficient protection against the circumstances of the offending conduct which included the offender acting in direct contravention of a court order designed to protect the victim almost immediately upon being served with the order. The appellant was not able to point to any “pro-social” factor that emerged or developed after the offending occurred. By the time of sentencing the appellant had not engaged in treatment of the kind contemplated by Mr Visser as necessary to effect behavioural change. To the extent that the pro-social factors weighed in the appellant’s favour, they were nonetheless factors to be assessed in light of all the other material before the Court that informed the sentence to be imposed, including the nature and circumstances of the offending.
There was no challenge to her Honour’s finding that the appellant’s “poor regulation” because of his traumatic childhood “contributed to the present offending”. Nor was there any challenge to the finding that the appellant had moved into another relationship with a woman subsequent to his relationship with the victim after committing the offences against her. The “pro-social” factors, to which her Honour made specific reference did not neutralise the risk that the appellant’s “poor regulation”, untreated, would present an increased risk to his future female partners.
This was particularly so in circumstances where the appellant’s conduct towards the victim persisted in the face of a court order prohibiting that very conduct and where the appellant demonstrated a distinct lack of insight into the nature of his conduct. The appellant’s lack of insight was revealed in his comment to Ms Mckay when he claimed that he did not intend the victim harm because he “was in love with her”. Further, Mr Visser’s report underscored the appellant’s lack of insight into his offending and his capacity for self-regulation. In addition to the opinion of Mr Visser extracted above, the report also recorded the appellant as providing a narrative inconsistent with the statement of facts when he told Mr Visser he sent the victim a message “asking if she was okay” when the message in fact read “I fucking hate you with everything I have … now I hope you die”.
While the “pro social” factors were, as her Honour identified them to be, in the appellant’s favour, they did not extinguish the effect of the appellant’s deprived childhood on other purposes of sentencing.
In this regard her Honour was correct to assess the result of his childhood experience as relevant to the risk he presented of future re-offending and the need for the community to be protected. Plainly, the report of Mr Visser moderated the unequivocal expression of Ms McKay as to risk. Mr Visser’s report tied the appellant’s “poor emotional regulation, attachment issues and physical aggression” to his childhood trauma and his mental illness. Mr Visser’s observation that intensive counselling would be necessary to effect genuine behavioural change in the appellant provided critical context for an assessment of his future risk. Accordingly, there remained an increased risk of reoffending because of his untreated “poor regulation” and accordingly, the need to protect the community was engaged. There being evidence of the appellant having entered another romantic relationship her Honour was correct to consider those sentencing purposes as being increased by the largely untreated effects of the appellant’s childhood disadvantage.
Her Honour properly identified that in weighing the effect of the appellant’s childhood disadvantage, moral culpability was reduced, while the risk of re-offending and the need to protect the community, was elevated. This was a sentencing exercise where the application of Bugmy, giving effect to the requirement to give the appellant’s childhood disadvantage “full weight”, saw the purposes of sentencing pull in different directions: Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 (Veen (No 2)). This tension as between sentencing considerations where childhood disadvantage is concerned was acknowledged in Bugmy to be what “makes the exercise of the discretion so difficult”: Bugmy at [44] citing Veen (No 2).
All of the matters to which we have referred and to which her Honour had regard in our view well justified her findings about the appellant’s future risk and the need for community protection. The appellant has not established that the approach to the application of the Bugmy principles was “unbalanced”. On the contrary, we consider that as is required, her Honour carefully and appropriately gave “full weight” to the appellant’s childhood disadvantage to the purposes of sentencing that were relevant. We do not find that her discretion miscarried.
There is no merit to this ground of appeal and leave should be refused.
As the above extract demonstrates, the complaint that the primary judge’s consideration of the appellant’s mental health was “unbalanced” finds no support in the reasoning her Honour applied. Indeed, it is readily apparent that her Honour paid careful attention to the influence of the appellant’s mental health on relevant sentencing considerations. This included regard to the moderation of the weight to be afforded to general deterrence, recognition that specific deterrence warranted “more” weight, an acknowledgement that the experience of custody would weigh more heavily upon the appellant and that rehabilitation was an “important” consideration. The appellant’s completion of four mental health sessions while in custody and his willingness to address his mental health issues was specifically considered.
At the sentencing hearing counsel for the respondent noted that the Good Behaviour Orders imposed for the earlier offending included in them a rehabilitative component. While Ms McKay categorised the appellant’s compliance with the terms of the Good Behaviour Orders as “satisfactory”, any rehabilitation achieved under their terms nor the prospect of a suspended prison sentence, apparently did not assist the appellant in refraining from the conduct reflected in the present offences.
The finding of the primary judge that because of the appellant’s mental impairment he may “present a more significant danger to the community” was consistent with the detail of the offences, the appellant’s relevant, recent criminal history and the material as to the nature of the appellant’s mental health challenges. Her Honour was plainly aware that rehabilitation of the appellant was important to reducing the risk he posed to the community as identified by her. However, it is also clear that her Honour found that the potential for engagement in treatment and rehabilitation was not a complete answer to the risk she identified at [86]. Her Honour ultimately determined at [111]: Specific deterrence is a factor that will also carry emphasis here, particularly when the offender’s criminal history includes family violence offences, and he was on conditional liberty in respect of those prior offences when the current offending occurred. However, it is also evident from the material that the offender’s mental health and diagnosis of PTSD has played a significant role in his prior offending and in his current offending. Unless these underlying problems particular to this offender are addressed, there is a concern that the offender may repeat his history, notwithstanding the PSR author’s view that the offender was low risk of reoffending.
That conclusion was well open to her Honour on the totality of the evidence before her. The promise of future engagement with psychological treatment, where the appellant had only engaged in four sessions of counselling and the material identified that substantially more treatment was necessary, did not result in the appellant’s mental health operating only in his favour. The appellant’s willingness to engage in psychological treatment and completion in custody of four counselling sessions, did not substantially moderate the elevated risk he presented to the community nor extinguish the need to give effect to specific deterrence. There was clearly a basis to consider that at that same time that the appellant’s mental health diagnosis was relevant to sentencing considerations that pulled in his favour, it was also relevant to the need to protect the community and to the weight to be afforded to specific deterrence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. The approach the primary judge took to an assessment of the relevance of the offender’s mental health diagnosis did not improperly skew its significance. The approach taken properly weighed the influence of this factor against all the relevant sentencing considerations.
There is no substance to this challenge and leave to include it as a ground of appeal should be refused.
The primary judge addressed the question of the discount in respect of the pleas of guilty from [92] in her reasons. Her Honour observed that the application of the discount is a matter of discretion, and it is necessary to consider the circumstances in which the plea was entered. However, her Honour noted that the utilitarian value of the plea is the primary consideration.
Her Honour at [96] turned to s 35(4) of the Sentencing Act and said: [96] In respect of the aggravated threat to kill offence, while the case was strong, I am not persuaded it was overwhelmingly strong. The position is different for the aggravated stalking and breach of FVO offences. The objective evidence obtained from the victim’s phone and the victim’s CCTV camera located at her house suggest that an acquittal was realistically unlikely for either of those two offences.
Thus, her Honour arrived at the discounts to which we have referred.
The appellant argued that her Honour’s approach to the allocation of discounts in relation to the guilty pleas represented an “overly technical way of reading” s 35(4). It was argued that that her Honour should not have differentiated between the charges and should have applied a 25% discount to the sentences on each offence notwithstanding two of them were accepted by the appellant to have been “overwhelmingly strong”.
In effect, the appellant argued that where pleas to several offences are entered, for the purpose of determining what discount should be afforded to the ultimate sentences to be imposed, one discount, here 25%, should apply to each sentence.
The appellant relied upon s 145 of the Legislation Act 2001 (ACT) (the Legislation Act) which provides that “words in the singular number include the plural and words in the plural number include the singular”. He submitted that the section applies where the offender pleads guilty to an offence or offences.
The appellant submitted: The gravamen of the section is to encourage guilty pleas and early guilty pleas. If an offender pleads guilty to a set of offences which include as the central offence an offence the prosecution’s case for which is not overwhelmingly strong, then the offender should be taken to have pleaded guilty, and at an early time, to all offences and further be taken to be excluded from the operation of s35(4) in respect of any offences.
This was said to be because the purpose of s 35 of the Sentencing Act was to encourage guilty pleas because of their utilitarian value.
The respondent pointed out that the appellant cited no authority for the construction of s 35(4) contended for by the appellant. The respondent submitted that s 145 of the Legislation Act was merely an aid to interpretation and did not require that a word which is used in the singular be read as including the plural where the proper construction of the statutory provision expressly or impliedly evinces a contrary intention. That was because s 145 is not a determinative provision within the meaning of s 5 of the Legislation Act.
The respondent submitted that there was no textual basis in s 35 or elsewhere in the Sentencing Act to suggest that the word “offence” was intended to be anything other than the singular. In oral submissions counsel also pointed to the practical difficulty that would arise if the appellant’s submissions were accepted, in particular as to which offence should be considered the “central offence” for the purposes of determining whether the case was overwhelmingly strong.
It can be accepted that s 35(4) is a provision in relation to which the legislative intention is obscure: see R v Toumo’ua [2017] ACTCA 9 at [70].
There are a number of reasons why the appellant’s submission as to the interpretation of s 35(4) cannot be accepted.
First, the starting point must be that a sentence is imposed for an individual offence. There is no capacity under Territory law to impose an aggregate sentence for multiple offences: cf Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A.
Second, if the references to the singular in s 35(4) were interpreted as references to the plural, then the provision would read: (4) However, in deciding any lesser penalties, the court must not make any significant reductions for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case [or cases] for the offences was [or were] overwhelmingly strong.
This would require that the prosecution case or cases be overwhelmingly strong for all offences for which an offender pleaded guilty. It would mean that if any case was not overwhelmingly strong then the condition precedent to the operation of the subsection would not be met. That would give the section an operation even narrower than that contended for by the appellant. That is because s 35(4) would have no operation if the prosecution case for any offence was not overwhelmingly strong. It would not be dependent upon whether or not that was the “central offence”.
That would mean, for example, where a factually unrelated and minor offence to which a plea had been entered was not overwhelmingly strong, that the operation of s 35(4) would be excluded in relation to all offences to be sentenced at the same time. That would make the operation of the provision dependent upon what combination of charges happened to be dealt with at the same time, as distinct from the merits of the prosecution case in relation to the individual offences.
Third, there is no indication anywhere else in the Sentencing Act that this kind of aggregation should occur. It is fundamental to the operation of the Act that sentences are imposed for individual offences, and that the circumstances of the individual offence are considered in determining the appropriate sentence. There is nothing in the context of the Sentencing Act that would indicate that in s 35 offences should be aggregated.
Fourth, the text of s 35 itself provides no support for the proposition that offences should be aggregated in s 35(4). The section consistently uses the singular in a manner consistent with a sentence being imposed for an individual offence based upon the circumstances of that offence. It identifies matters in s 35(1) and (2) which must, having regard to their terms, be considered by reference to an individual offence. Section 35(3) refers to the imposition of “a lesser penalty” than would have been posed had the offender not pleaded guilty. The limitation in s 35(6) requires a comparison between the lesser penalty and the “nature and circumstances” of the offence. It is hard to see how that limitation could operate if the Court was required to consider the proportionality of multiple penalties and the nature and circumstances of multiple offences.
Fifth, no textual foundation was identified for the proposition that the circumstances of a “central offence” would determine whether or not s 35(4) would apply. There was, therefore, no basis to depart from the proposition that s 35(4) would apply to each individual offence or to all offences taken collectively. As a consequence, the appellant’s argument could not avoid the arbitrariness that would apply if all offences that happened to be sentenced on an individual occasion had to be considered collectively for the purposes of determining whether s 35(4) was applicable.
Sixth, no authority at all was pointed to supporting the interpretation contended for by the appellant.
The argument lacks merit and was not raised below. Leave to include it as a ground of appeal should be refused.
The primary judge concluded at [113]: The legislature has guided the imposition of a lengthy term of imprisonment by virtue of the objectively serious conduct involved here and the 13-year maximum penalty for an aggravated threat to kill, seven-year maximum penalty for aggravated stalking, and five-year penalty for the breach of the FVO. However, the principle of totality still operates, as to which, see O’Brien v The Queen [2015] ACTCA 47 at [26]. This offender’s very significant social disadvantage does reduce his moral culpability, which is reflected in a term of imprisonment that is both less than what otherwise may have been the case and with a longer period for which the offender is to be eligible for parole. The purpose of crafting the sentence in this way is to permit the offender sufficient time in custody to undertake effective intervention and then to demonstrate that compliance for a lengthy period under supervised parole conditions.
The appellant contends that the primary judge incorrectly identified the principal issue which, rather than being totality, was that the incident was “part of a single episode of criminality” and submitted that in that case, the sentence for one should reflect the criminality of both and as a result the sentences should be concurrent or at least partly concurrent. It was further argued that the sentence imposed in relation to the aggravated threat to kill offence, on which the sentences for the aggravated stalking and breach of the Family Violence Order offences were aggregated, was severe and the degree to which the sentences were aggregated was said to bespeak error.
Where sentencing involves multiple offences, the High Court described the process in Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [64] thus: 64. Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency. [Citations omitted.]
It is to be borne squarely in mind that there is no one single correct approach to the nuanced and complicated process of sentencing which involves the exercise of discretion. That being the case, appellate intervention must only occur if the Court is satisfied that the sentencing discretion miscarried because the sentences imposed were in excess of those that could be justly imposed for the offences.
To describe the offending as a “course of conduct” in our view runs the risk of eliding the seriousness of the individual acts of criminality. Each offence for which the offender was sentenced was objectively serious and each required separate consideration of the particular gravity, a task conducted by the primary judge.
Counsel for the respondent submitted correctly in our view that while the offences were committed within a period of a month and, to a degree bore factual similarities, in each the criminality was different. For example, in relation to the aggravated threat to kill, the circumstances in which it was committed made it an extremely grave offence for which a significant term of imprisonment was required. While it occurred at the same time as the stalking offences, significant accumulation was required to properly address the gravity of that offence.
The offence of aggravated stalking persisted over a period of more than a month and involved different and persistent approaches and threats to the victim and required a sentence that properly reflected that particular gravity.
Finally, the offence of breach a Family Violence Order represents the offender persisting in stalking and threatening the victim but while conduct was similar to that involved in the aggravated stalking offence, they occurred at a separate time and after an albeit short period in which the offender ceased his campaign against the victim. Moreover, the gravity of this offence requires acknowledgment that the victim had recourse to the courts to protect her by making of an order which the appellant ignored.
In our view, the different criminalities of the charged offences required separate consideration and sentence. The sentence structure which admitted of a degree of concurrency represented an acknowledgment of the course of conduct while still paying proper regard to the interrelationship between the factual elements of the offences: Royer v The State of Western Australia [2009] WASCA 139 at [22]–[25].
It follows that this challenge is not made out.