Norman v Jones [2024] ACTSC 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: Norman v Jones Citation: [2024] ACTSC 11 Hearing Date: 18 July 2023 Decision Date: 1 February 2024 Before: Loukas-Karlsson J Decision: (1) The appeal is allowed. (2) The sentence imposed by the ACT Magistrates Court on 26 August 2022 is set aside and the appellant is re-sentenced as follows: (a) In respect of the charge of common assault (CAN10940/2022), I make a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). Catchwords: APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – offence of common assault –– whether error in consideration of s 17 of the Crimes (Sentencing) Act 2005 (ACT) – whether extenuating circumstances exist – appeal allowed – offender re-sentenced – non-conviction order imposed Legislation Cited: Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 17, 33, 53 Magistrates Court Act 1930 (ACT) ss 207, 208, 218 Cases Cited: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 Chatfield v Rhynehart [2008] ACTSC 47 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Dang v Li [2021] ACTSC 179; 16 ACTLR 143 DPP v DJK [2003] VSCA 109 DPP v Mitchell (No 2) [2023] ACTSC 118 House v The King [1936] HCA 40; 55 CLR 499 Keen v Tither [2010] ACTSC 130 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Mammoliti v Callaghan [2022] ACTSC 259 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 RLG v Donnelly [2012] WASC 230 Wong v the Queen [2001] HCA 64; 207 CLR 584 ZL v Corey [2020] ACTSC 143 Parties: M Norman (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel K Lee (Appellant) C Mutharajah (Respondent) Solicitors Tim Sharman Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: SCA 50 of 2022 Decision Under Appeal: Court/Tribunal: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 29 November 2022 Case Title: Jones v Norman Court File Number: CC2022/10940 LOUKAS-KARLSSON J: Introduction

1. This is a sentence appeal from a decision of Magistrate Theakston (the Magistrate). The appellant, Ms Norman, pleaded guilty to an offence of common assault contrary to s 26(1) of the Crimes Act 1900 (ACT). The appellant was sentenced with the imposition of a conviction and released upon entering into a Good Behaviour Order (GBO) for a period of nine months.

2. As the appeal hearing proceeded before me on 18 July 2023, it was clear that the fundamental issue before this Court, on appeal, was the issue of “extenuating circumstances”.

3. I note at the outset that, for the reasons set out below, I have come to the conclusion that the Magistrate was in error in his consideration of extenuating circumstances in this case and the appellant should be re-sentenced.

Jurisdiction

4. Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including appeals against sentence: see divs 3.10.1 and 3.10.2 (in particular, ss 207 and 208) of the Magistrates Court Act.

5. An appeal of this nature is a rehearing of the evidence before the Magistrate, with any other evidence this court permits to be adduced: Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [28]-[29].

6. The principles applicable to appeals of this nature were set out by Refshauge J in Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 (Cooper v Corvisy (No 2)). A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence. I have, in accordance with principle, not approached this case on that basis, but rather on the following basis. An appeal may be upheld, and a different sentence imposed, if the appellate court is satisfied that the exercise of the sentencing discretion was affected by a specific error, but only where the appellate court considers that a different sentence is appropriate in all the circumstances. In this case, I underline that the exercise of the sentencing discretion was affected by specific error and I consider that a different sentence is appropriate for the reasons below. Facts

7. The facts and procedural history of this case are relevantly summarised in the appellant’s submissions. The outline of facts and procedural history provided by the appellant were not disputed by the respondent.

8. The relevant procedural history is as follows: (a) On 26 September 2021, the appellant was arrested and later charged in the Magistrates Court with assault occasioning actual bodily harm (CC2021/9882) and burglary (CC2021/9883). The appellant entered pleas of not guilty to the charges and the matters were set down for hearing. (b) Prior to the hearing for those charges, the respondent laid a fresh charge of common assault (CC2022/10940). (c) On 8 November 2022, the appellant pleaded guilty to the common assault charge, and the remaining charges were withdrawn by the prosecution. (d) On 29 November 2022, the matter proceeded to sentence.

9. As stated earlier, the relevant facts were helpfully set out in the appellant’s submissions and were not disputed by the respondent. They are as follows.

10. As at 25 September 2021, the date of the offence, the appellant had been married to her then husband for approximately 10 years. They had been in a relationship for approximately 14 years and had two children of the relationship: VE (11 years old) and XA (9 years old).

11. The appellant was 50 years of age, had no criminal history, and was in employment as a nurse.

12. The appellant and her then husband had been living together in another suburb in Canberra, but had arranged to move and signed a lease for a property in Moncrieff. According to the Agreed Statement of Facts, about two months prior to the events of 25 September 2021, and during the course of moving into the new property, the appellant and her then husband had argued and the appellant went to live with her father. The appellant believed this was a temporary separation and that she and her then husband would work through the issues in their marriage. During this period of separation, the appellant cared for the children of their marriage.

The sentencing hearing

Evidence at the hearing

22. The following exhibits were tendered on sentence: (a) Agreed Statement of Facts (Exhibit A); (b) Victim Impact Statement of the victim (Exhibit B); and (c) Letter from the appellant’s father (Exhibit C).

Victim Impact Statement

23. The Victim Impact Statement was tendered without objection and was read onto the record by the prosecutor who appeared at the sentence proceedings.

24. Relevantly, the coversheet of the Victim Impact Statement indicated that it was written in relation to the charges of assault occasioning actual bodily harm and burglary (the abovementioned charges noted at [8] that were withdrawn) and not proceeded with by the prosecution.

25. Prior to the Victim Impact Statement being read onto the record, the appellant’s counsel explained to the Magistrate the particulars of the charge of common assault and basis of the appellant’s plea of guilty to that charge: … [A] plea of guilty was entered and accepted on the basis that, your Honour will see from the facts, that after [the appellant] arrived at a residence she threw the contents of a glass of wine over [the victim], that is the common assault that constitutes the offence before the court. She then picked up a bottle, that is the bottle from which the wine had come, attempted to throw the contents over [the victim]. In doing so she lost control of the bottle and it struck [the victim]. That’s accepted, on the resolution of the matter, to be an accident. She does acknowledge that that did occur, and it’s acknowledged, obviously, that that caused some distress for [the victim], but the basis of the plea is the throwing of the contents of the glass, that is, the wine, over her. (emphasis added.)

26. Thus, the contents of the Victim Impact Statement went beyond the common assault for which the plea of guilty was entered.

27. The prosecution then read the contents of the Victim Impact Statement onto the record. The Victim Impact Statement included the following statements: (a) “For months I have wanted to reach out and grasp an understanding as to why [the appellant] felt the need to act out with violence… I have wanted to reach out and understand what drove her to the point of violence.” (b) “If [the appellant] had taken the time to explain the situation to me that night, I would have walked away from a very toxic relationship.” (c) “Little did I know what occurred prior to the assault. I lived [seven] months of what [the appellant] had to endure for 15 years and unfortunately, I now understand why she was upset the night of the assault, from a firsthand snippet of what her ex-husband was capable of.” (d) “Nonetheless, I have never been a violent person, so I still struggle to understand why it was necessary to physically hurt me.” (e) “I did not want to speak to anyone about the assault that occurred, as I had felt ashamed that I could not protect myself and did not want to relive the memories of that night, by speaking to people about it. Although, due to [the appellant] and her ex-husband having many mutual friends and family, I was endlessly put on show and forced to relive the experience and upsetting emotions that came with it, as [the appellant’s] ex-husband would intricately describe the event to almost every person he spoke to, I felt like a display case, used to tell a harrowing occurrence of an event I wanted so badly to let go of, yet he continuously shared the story for seven months. This was absolutely horrible.” (f) “I do not understand why a stranger attacked a stranger that night without words being exchanged.”

Letter from the appellant’s father

28. The appellant’s father wrote a reference to the Court in support of the appellant. That reference was also tendered at sentence at first instance.

29. The letter briefly summarised the appellant’s upbringing and education. The appellant’s father noted that the appellant “has never been aggressive, either emotionally or physically” and that she is “a great mother of her two children”.

Summary of sentencing submissions before the Magistrate

30. The appellant’s counsel at first instance submitted in relation to the subjective circumstances of the appellant and detailed the circumstances in which the offending occurred. This included the following: … [W]hat she really wanted to do was confirm the position, whether or not it was a new relationship for him or whether it a friend of some sort. It became apparent to her, when she arrived, obviously, and went into the house that it was a new relationship.

31. The appellant’s counsel at first instance submitted that the appellant was “being misled about the nature of her relationship with her then husband” and underwent an “emotional response”.

32. Ultimately, it was submitted for the appellant that the matter be dealt with by way of a non-conviction order with a GBO: s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The non-conviction order was opposed by the prosecution at first instance. The sentence of the Magistrate

33. As referred to earlier, the Magistrate sentenced the appellant by imposing a conviction and a GBO for a period of nine months.

34. The Magistrate provided a brief procedural history of the matter and correctly summarised the facts.

35. In relation to the Victim Impact Statement, the Magistrate stated the following: There’s a Victim Impact Statement before the court. Those statements provide a cathartic release for a complainant, it gives them a voice. It provides the court with some understanding as to the consequences, but the court needs to be very, very careful not to see the contents of the report as aggravating features. The Victim Impact Statement, I should say, does not, for example, amount to evidence that can establish a finding of fact as to what has in fact occurred. But what it does do, it does echo what is obvious from the circumstance such as this, that when a person is, essentially, attacked by a stranger it comes with a consequence. This is an example where an emotional response, which felt right at the time, and justified at the time, led to violence and that violence has led to ongoing trauma by the complainant.

36. The Magistrate then dealt with the appellant’s lack of any criminal history, accepted good character and stated the following: The defendant has no criminal history, and she comes before the court with a good character. I accept that there’s a short, but positive, reference from her father. She’s 50 years of age, has two primary school aged children. The relationship is over with [her now ex-husband], but appears to be ongoing in relation to as far as it can, for a range of reasons. (emphasis added.)

37. The Magistrate then considered the discretion pursuant to s 17 of the Sentencing Act. He stated the following: I’ve been invited to exercise my discretion under section 17, taking into account, in particular, the process, the two nights in custody, as well as the, I guess, remorse. Section 17 has three mandatory considerations. The first is the objective seriousness of the offending. This is not particularly serious but has, as it would be expected, a serious consequence for the complainant, but it occurs in circumstances where there is a disconnect between perhaps what the law expects and what an individual may expect, in the moment. It’s simply not okay to confront a new partner of an ex-partner. That’s not appropriate for anyone; for a woman, for a man, for anyone, it’s simply not appropriate. The second mandatory consideration is the defendant’s background. In this case, that does weigh in favour of the exercise of that discretion. Third is any extenuating circumstances. While there may have been some degree of emotion involved, and that may feel like it was justified, the assault, it clearly does not. Therefore, that’s neutral, there are no extenuating circumstances. Ultimately, I think the offending does need to be marked by way of a conviction but, having said that, there’s no need for any further punishment. Two nights in custody is significant for anyone, certainly for someone who is not used to it and it’s probably a reflection of our current procedural arrangements, in relation to bail and the like. Until someone comes before the court, to be charged with a family violence matter, they simply don’t get bail. That’s the current arrangement. It’s a bit of a shame that there’s no nuance available there, but that’s the way things are. (emphasis added.)

Grounds of appeal

39. The grounds of appeal, as set out in the amended Notice of Appeal, are as follows: (a) The sentencing Magistrate erred in his use of the Victim Impact Statement and thereby took into account an irrelevant consideration. Namely, the appellant submitted that the Magistrate erred in his assessment of the harm suffered by the victim because of the offence (Ground A). (b) The sentencing Magistrate erred in finding there were no extenuating circumstances in which the offence was committed (Ground B). (c) The sentencing Magistrate erred in his consideration of s 17 of the Sentencing Act (Ground C).

40. I note that Grounds B and C are related, as both grounds concern the issue of extenuating circumstances. It is convenient to consider these two grounds together.

41. As foreshadowed above, it became clear at the appeal hearing before me that the core foundation of this appeal was in relation to Ground B. Therefore, it is convenient to deal with Ground B and C first.

Consideration

42. Counsel for the appellant submitted to this Court that there were clear extenuating circumstances in the context of this matter. As stated earlier, this was referred to in the appellant’s submission to the Magistrate: What she really wanted to do was confirm the position, whether or not it was a new relationship for him or whether it [was] a friend of some sort. It became apparent to her when she arrived, obviously, and went into the house that it was a new relationship. She lost control of her emotions, that’s the reason for her behaviour. Ultimately, it’s something that she feels very ashamed of. She’s reflected on, and ultimately, I’ll [submit to] your Honour, it’s inconsistent with her background over time, but perhaps can be understood against that background. (emphasis added.)

43. As I stated at the outset of this judgment, I accept the submission that the Magistrate was in error in finding there were no extenuating circumstances. I so find for the following reasons.

44. The background and immediate context to this offence was important. This was an offence that occurred during what the appellant believed was a temporary separation from her partner of 14 years and her husband of approximately 10 years. The appellant and her then husband had two children of their relationship. The appellant and her then husband had a disagreement at a time they were due to move into this new property together. The appellant was of the understanding that the issues would be worked through. It became apparent on the date of the offence that the appellant’s then husband had a different view and that, from his perspective, the separation was permanent, not temporary. The appellant’s husband, during this “temporary separation”, commenced a new relationship with a new partner. The appellant learnt of this new relationship through one of the children of their marriage, on the very same evening of the offence in question.

45. Counsel for the appellant appropriately conceded that the solicitor at first instance did not in these particular, specific terms say that these circumstances created a state of “personal stress and emotional distress” on behalf of the appellant. However, counsel properly submitted on appeal that it was quite clear that the circumstances as described had this effect upon the appellant. It was indeed in this context that the offending occurred. Counsel for the appellant submitted that this clearly amounts to the kind of personal stress that can be taken into account as an extenuating circumstance. I agree. That is clear on the facts of this case. Indeed, the clear inference is compelling on the agreed facts and consistent with the submissions made at first instance, referred to above in this judgement at [42]. The compressed timeline is clear from the Agreed Statement of Facts: the 9:29pm phone call to the child leading to the 10:20pm arrival of the appellant to the house. Subsequently, shortly thereafter, the wine was thrown which constituted the gravamen of the common assault charge.

Conclusion of consideration

55. Section 17 of the Sentencing Act provides: 17 Non-conviction orders—general (1) This section applies if an offender is found guilty of an offence. (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13. Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87). (3) In deciding whether to make a non-conviction order for the offender, the court must consider the following: (a) the offender’s character, antecedents, age, health and mental condition; (b) the seriousness of the offence; (c) any extenuating circumstances in which the offence was committed. (4) The court may also consider anything else the court considers relevant. Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10). (5) If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender. Note 1 For notice of a good behaviour order under s (2) (b), see s 103. Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J). (6) Failure to comply with subsection (5) does not invalidate the non-conviction order. (7) If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years. (8) This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders). (emphasis added.)

56. The phrase “extenuating circumstances” is not defined in the Sentencing Act. It appears only once in the Sentencing Act. As a matter of statutory construction, s 17 must be analysed against the background of the objects and purposes of sentencing (see ss 6 and 7 of the Sentencing Act). It is useful at this juncture to set out ss 6 and 7 of the Sentencing Act. 6 Objects of Act The objects of this Act include the following: (a) to promote respect for the law and the maintenance of a just and safe society; (b) to provide a range of sentencing options; (c) to maximise the opportunity for imposing sentences that are constructively adapted to individual offenders; (d) to promote flexibility in sentencing; (e) to consolidate legislation relating to the imposition of sentences.

7 Purposes of sentencing (1) A court may impose a sentence on an offender for 1 or more of the following purposes: (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community. (2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

57. I conclude that the appellant’s personal stress arising from the background context was relevantly an “extenuating circumstance” on the evening in question, on the facts of this case, as discussed in Proud. This is consonant with the objects of the Sentencing Act and the purposes of sentencing.

58. In coming to that conclusion on error, I have taken into account that reasons of course must be read as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [291]. This is of particular importance in a busy jurisdiction such as a Magistrates Court.

59. Nevertheless, in my view, the Magistrate erred in finding there were no extenuating circumstances. As the authorities demonstrate, it is not necessary for “extenuating circumstances” to be unusually or specifically exceptional: see Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 (Bennett) at [49] and Mammoliti v Callaghan [2022] ACTSC 259 (Mammoliti) at [32]: “An exceptional outcome does not require exceptional circumstances”. The authorities refer to “cogent or compelling circumstances”: see Bennett at [49]. In my view there were clearly cogent and compelling circumstances in this case. As outlined in Proud, personal stress is a relevant factor when considering extenuating circumstances. The fact that such conduct is not unusual or exceptional does not mean it may not be considered an extenuating circumstance. Each case rightly turns on its own facts.

60. In my view, the appellant behaved out of character and consequently had an uncharacteristic lapse of judgment due to extenuating circumstances.

61. In conclusion, as stated at the outset, I am of the view the Magistrate fell into error by finding there were no extenuating circumstances. The Magistrate also therefore failed to take into account a relevant consideration for the purposes of s 17 of the Sentencing Act.

62. Ground B should be upheld. Ground C is inextricably intertwined with Ground B and must also be upheld.

63. As I have upheld Grounds B and C, there is no need to proceed to consider Ground A.

Re-sentence

64. Section 218 of the Magistrates Court Act provides the orders this Court may make.

65. I consider that a different sentence is appropriate: see Keen v Tither [2010] ACTSC 130 at [44], Cooper v Corvisy (No 2) and ZL v Corey [2020] ACTSC 143 (ZL) for the following reasons.

66. The exercise of resentencing must commence with the facts. These have been outlined above at [10]-[21].

67. In deciding how to re-sentence the appellant, I am required to consider the Victim Impact Statement in accordance with s 53 of the Sentencing Act, which provides the following: 53 Victim impact statements—effect (1) In deciding how the offender should be sentenced (if at all) for the offence, the court— (a) must consider any victim impact statement given to the court in relation to the offence; and (b) must not draw any inference about the harm suffered by a victim from the fact that a victim impact statement is not given to the court in relation to the offence. (2) A victim impact statement must not be given in writing to the court unless— (a) the statement is made in accordance with section 51 (Victim impact statements—form and contents); and (b) a copy of the statement has been given to the defence. Note The Evidence (Miscellaneous Provisions) Act 1991, ch 6A deals with cross-examination of the maker of a victim impact statement. (3) In this section: defence means— (a) any lawyer representing the offender; or (b) if the offender is not legally represented—the offender. given includes made orally in court or read out in court under this part.

68. The correct approach in considering the Victim Impact Statement in this case is to consider it insofar as it relates to the offence charged and not to give weight to any reference to uncharged acts. Victim Impact Statements are not admitted for the purpose of sentencing an offender for an offence for which there is no plea or finding of guilt: see, for example, DPP v Mitchell (No 2) [2023] ACTSC 118 at [14], Dang v Li [2021] ACTSC 179; 16 ACTLR 143 at [40] and DPP v DJK [2003] VSCA 109 at [17].

69. The purposes of sentencing are outlined in s 7 of the Sentencing Act. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have taken into account relevant considerations applicable under s 33 of the Sentencing Act.

70. In deciding whether a non-conviction order should be made under s 17 of the Sentencing Act I have considered relevant authorities: see Chatfield v Rhynehart [2008] ACTSC 47 at [9], Bennett at [49], Mammoliti at [31]-[32]. Additionally, I have considered the low objective seriousness of the offence and the previous good character of the appellant, as accepted by the Magistrate at first instance. I have also considered the extenuating circumstances in which the offence was committed, the plea of guilty and the low risk of reoffending. The Magistrate stated at first instance “[i]n any event, it's an early plea. It demonstrates remorse, acceptance, responsibility, and I also note it saves everyone time”. Additionally, the appellant has spent the equivalent of two days in custody for this offence. I consider, as a result of the foregoing factors, that there are compelling and cogent reasons for a non-conviction order to be made in this case.

I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 1 February 2024