Supreme Court of the ACT|2013-11-01|Before: Green CJ, Zeeman JJ, Refshauge J, Nield AJ

Roberts v Smorhun [2013] ACTSC 218 (1 November 2013)

[2013] ACTSC 218 (1 November 2013)

APPEAL - Appeals from the Magistrates Court - appeal against sentence - appeal on the ground of manifest excess - appeal upheld

CRIMINAL LAW - Sentencing - whether the principles in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 allow a conviction of "no separate penalty" - they do not

EVIDENCE - Documentary evidence - no tendered documents marked as exhibits in the Magistrates Court - no tender documents from the Magistrates Court proceedings provided to the Supreme Court - difficulties arising from multiple statements of facts and photos tendered in the Magistrates Court - desirability of marking documentary evidence as exhibits

Crimes Act 1900 (ACT), ss 10, 13-5, 24, 29, 374(2), 375(11)

Domestic Violence Protection Orders Act 2008 (ACT), s 90(2)

Burge v McCarron [2011] ACTSC 87

Connelly v Director of Public Prosecutions [1964] AC 1254

Director of Public Prosecutions (Vic) v Johnson (2011) 213 A Crim R 262

Finnigan v The Queen [2013] NSWCCA 177

GN v The Queen [2012] NSWCCA 96

Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176

Grimshaw v Mann [2013] ACTSC 189

Holliday v The Queen [2013] ACTCA 31

House v The King [1936] HCA 40; (1936) 55 CLR 499

Keane v Police (1997) 69 SASR 481

Manny v Burmester [2002] ACTSC 44

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Parker v The Queen (Unreported, Tasmanian Court of Criminal Appeal, Green CJ, Underwood and Zeeman JJ, 21 July 1994)

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010)

R v Cotham [1998] VSCA 111

R v Ennis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 17 April 2013)

R v Meyboom [2012] ACTCA 48

R v Sellars [2010] NSWCCA 133

R v Williams (1990) 50 A Crim R 213

Re an application for bail by Schwalm [2011] ACTSC 153

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

ACT Magistrates Court, Practice Direction No 1 of 2009 - Case Management Hearings and Committal Hearings, 15 May 2009

Hickey, J and Stephen Cumines, Apprehended Violence Orders: A Survey of Magistrates (Judicial Commission of New South Wales 1999)

Seddon, N, Domestic Violence in Australia: The Legal Response (Federation Press, 2nd ed, 1993)

Sentencing Advisory Council, Breaching Intervention Orders (Melbourne, 2008)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The sentence for the offence of, on 23 February 2013, contravening the protection order made on 18 December 2012, be set aside.

3. In lieu, Toby David Roberts be sentenced to imprisonment for 23 months to commence on 15 March 2013 and end on 14 February 2015.

4. A non-parole period of 13 months be set to commence on 15 March 2013 and end on 14 April 2014.

1. There is no doubt that a significantly beneficial reform to the protection that the community provides to vulnerable people and, in particular, those likely to be subject to domestic violence, is the creation of a court order, in this jurisdiction called a personal protection order, made under the Domestic Violence Protection Orders Act 2008 (ACT), which restrains the respondent to the order from engaging in specified conduct against or directed towards a particular person (called the aggrieved person) or persons (aggrieved persons). It may be made as a domestic violence order, restraining the respondent from engaging in conduct that constitutes domestic violence in relation to an aggrieved person, or as a workplace order, which restrains the respondent from engaging conduct that constitutes personal violence in relation to a workplace, or, if neither apply, simply as a personal protection order. The order may be made as an interim order in circumstances set out below (at [22]).

2. In Nicholas Seddon, Domestic Violence in Australia: The Legal Response (Federation Press, 2nd ed, 1993), 86-7, the author set out advantages of such orders and continued:

These advantages have generally been met with a positive response from those who work with victims of domestic violence and from surveys and the fact that protection orders have been adopted in all jurisdictions in Australia is testimony to their perceived effectiveness. The protection order regime is seen as a necessary complement to (but not as substitute for) the criminal law.

[citation omitted]

3. The author points out, however, that the protection order procedure "depends for its effectiveness on the police and magistrates".

4. In R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010) at 5, after commenting that the offence of contravening a protection order is a serious one, I said:

Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence.

5. On 18 December 2012, an interim personal protection order was made against the appellant, Toby Roberts, restraining him from engaging in conduct that constitutes personal violence in relation to a woman, namely the complainant, and certain named children.

6. On 23 February 2013, in circumstances to which I will further refer below, Mr Roberts contacted the complainant, invited her to a house and, after she left the house, followed her, abusing her and ultimately pulling her sunglasses off the top of her head, snapping them in half and throwing them at her so that one half hit her above her right eyebrow and the other hit her in the middle of her chin.

7. As a result, Mr Roberts was charged with contravening the interim personal protection order and assaulting the complainant occasioning her actual bodily harm.

8. On 26 July 2013, he was sentenced to thirty-two months imprisonment for the charge of contravening a protection order and convicted with no further penalty for the charge of assault occasioning actual bodily harm.

9. He commenced an appeal effectively against the sentence of imprisonment.

10. In Part 3.10 of the Magistrates Court Act 1930 (ACT), this Court has been given power to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.

11. I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals; I apply them in this case.

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

13. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.

14. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations.

15. If I find specific error, but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal, rather than allowing the appeal and re-imposing the same sentence.

16. Even if I cannot identify specific error, however, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

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

18. Mr Roberts filed his Notice of Appeal on 6 August 2013 but has remained in custody since then.

19. The grounds of the appeal set out in the Notice of Appeal are:

(i) His Honour erred in imposing a sentence for [the offence of contravening a protection order] that in all the circumstances was manifestly excessive; and

(ii) His Honour failed to adequately take into account the Appellant's plea of guilty.

20. Contravening a personal protection order is an offence against s 90(2) of the Domestic Violence and Protection Orders Act and attracts a maximum penalty of 500 penalty units (that is, at the time, a fine of $55,000) or imprisonment for five years or both.

21. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT) which provides for a maximum penalty of five years imprisonment.

22. It is necessary briefly to refer to the legislation relating to personal protection orders. On application for such an order by an aggrieved person where conduct that may be domestic or personal violence has been or is likely to be directed against the aggrieved person, the Magistrates Court may, under s 29 of the Domestic Violence Protections Orders Act 2008, make an interim order if satisfied that it is necessary to do one or more of the following:

(a) ensure the safety of the aggrieved person or a child of the aggrieved person;

23. Section 10 of the Act defines a domestic violence order as one which restrains the respondent from engaging in conduct that constitutes domestic violence.

24. Section 13 defines domestic violence, and that is to be contrasted with personal violence which is defined in s 14. These sections are, relevantly, in the following terms:

13 What is domestic violence etc?

(1) For this Act, a person's conduct is domestic violence if it_ - _

(a) causes physical or personal injury to a relevant person; or

(b) causes damage to the property of a relevant person; or

(c) is directed at a relevant person and is a domestic violence offence; or

(d) is a threat, made to a relevant person, to do anything in relation to the relevant person or another relevant person that, if done, would fall under paragraph (a), (b) or (c); or

(e) is harassing or offensive to a relevant person; or

(f) is directed at a pet of a relevant person and is an animal violence offence; or

(g) is a threat, made to a relevant person, to do anything to a pet of the person or another relevant person that, if done, would be an animal violence offence.

...

14 What is personal violence?

(1) For this Act (other than for division 6.2), a person's conduct is personal violence if the person_ - _

(a) causes personal injury to someone (the aggrieved person) or damage to the aggrieved person's property; or

(b) threatens to cause personal injury to the aggrieved person or damage to the aggrieved person's property; or

(c) is harassing or offensive to the aggrieved person.

(2) However, a person's conduct is not personal violence if it is domestic violence.

[notes omitted]

25. It can be seen that there is considerable overlap between the two definitions.

26. What is significant, however, is that, in relation to domestic violence, it must be directed at a relevant person, which is defined (in s 15) as meaning:

(a) a domestic partner or former partner of the respondent; or

(e) someone who is or has been in a relevant relationship with the respondent, relevant relationship being an intimate relationship between two people other than a domestic partnership.

27. As referred to above (at [5]), on 18 December 2012, the complainant applied for and was granted an interim personal protection order until 14 March 2013. The complainant had been in a physical relationship with Mr Roberts for about six to twelve months and they had lived together until mid-December 2012. It would therefore appear that the interim personal protection order was an interim domestic violence order.

28. The order was in what I consider to be conventional terms, restraining Mr Roberts from causing or threatening to cause personal injury to the complainant or the children, damaging or threatening to damage the property of the complainant or the children or behaving in an offensive or harassing manner towards the complainant or the children.

29. In particular, it prohibited Mr Roberts from being on certain premises, being within 100 metres of the complainant or the children, contacting or causing another person to contact the complainant or the children, or harassing, threatening or intimidating the complainant or the children, and some other mattes not presently relevant.

30. On 23 February 2013 at about 4:00 pm, Mr Roberts telephoned the complainant, even though that was a breach of the order. He asked the complainant to attend at his friend's place, where he was, to collect her house keys, a set of which had been in his possession.

31. Shortly after that, the complainant went to the friend's house, which was within walking distance of her home. In doing so, she may well be said to have aided and abetted the further breach of the order (Keane v Police (1997) 69 SASR 481) though it is understandable that she would wish to recover her keys.

32. She arrived at about 4:40 pm and a male opened the door and invited her inside. She was hesitant about entering the house, but Mr Roberts refused to come to the door and so she entered in order to retrieve her keys. The complainant stayed in the house for quite some time, but an argument developed between her and Mr Roberts about the complainant's current relationship. Mr Roberts appeared to be intoxicated and was verbally aggressive.

33. The complainant, being too scared to remain, left the premises at about 5:50 pm. Mr Roberts, however, followed the complainant and continued to shout abuse at her. Being scared, the complainant started to run, yelling at Mr Roberts to go away. Mr Roberts, however, continued to be aggressive towards the complainant and started to throw golf balls at passing cars.

34. A short time later, Mr Roberts caught up with the complainant and stood in front of her with his right arm up at about shoulder height to the side with it bent at the elbow with his hand in a fist, as if he was about to punch her. Instead, however, he grabbed the complainant's sunglasses off the top of her head, snapped them in half and threw them at her. One half of the broken sunglasses hit the complainant above her right eyebrow and the other broken bit hit her in the middle of her chin and she felt pain at both sites.

35. I had photographs of the complainant, which were tendered, by consent, on the appeal. It is not clear whether the photographs were tendered at the hearing, and I will refer to that below.

36. They showed a small amount of blood just to the right of the top of complainant's nose above her right eyebrow. It did not appear to be a significant injury though, of course, Mr Roberts had no right to inflict any injury of any kind on the complainant and she was entitled to protection from any injury at all. I could not see in the photographs any injury to her chin. The method of reproduction may have distorted the photograph, but there was no reference to any such injury in the Statement of Facts.

37. Mr Roberts then took the keys to the complainant's house out of his pocket and threw them on the ground, turned around, and ran back to his friend's place. The complainant phoned her then partner and later went to the police and made a statement at about 7:30 pm.

38. It was not entirely clear how these proceedings were commenced. The bench sheets show that the proceedings were commenced by information or charge. Mr Roberts was, as noted above, charged with assault occasioning actual bodily harm and contravening the interim personal protection order. The proceedings were listed before the Magistrates Court to be mentioned on 8 March 2013 but there was no allegation that Mr Roberts had been arrested and remanded or summonsed and bailed to that day. The Bench Sheet suggested that he was "Charged Before Court" but he was not present in court on 8 March 2013.

39. Indeed, a warrant was issued on that day and Mr Roberts was, the Australian Federal Police records show, arrested on 15 March 2013. He appeared in the Magistrates Court on 16 March 2013 when bail was refused and he was remanded in custody. He has remained in custody since then.

40. The proceedings were adjourned a number of times. Mr Roberts pleaded not guilty on 20 March 2013 and the proceedings came on for a Case Management Hearing (see ACT Magistrates Court, Practice Direction No 1 of 2009 - Case Management Hearings and Committal Hearings, 15 May 2009, 4-5) on 1 May 2013. The matter was listed for a half-day hearing on 25 June 2013.

41. On 29 May 2013, however, Mr Roberts changed his plea and entered a plea of guilty to both charges. The proceedings were listed for sentence on 10 July 2013. On 10 July 2013, however, Mr Roberts' then lawyers were given leave to withdraw and the proceedings were adjourned for a week when new lawyers, his current lawyers, appeared for him.

42. No election made by the prosecutor under s 374(2) of the Crimes Act. Mr Roberts, however, did make an election under s 375(11) of the Crimes Act. As a result, the proceedings were heard in the Magistrates Court, but not with a reduced limit on the penalty that the court was able to impose.

43. The proceedings were listed for and proceeded as a sentencing hearing on 24 July 2013. After the hearing, the proceedings were adjourned to 26 July 2013 when sentence was imposed, as set out above (at [8]).

44. Mr Roberts is a 44 year old man who grew up in Goulburn, the middle of three children. He left school when he had completed Year 10 in 1985.

45. He then moved with his family to Bateman's Bay when he was 17 and, five years later, to Canberra.

46. He commenced work with his father as a metal worker when he left school and has since worked as a cleaner, labourer and, most recently, as a delivery driver.

47. Mr Roberts has an extensive history of alcohol consumption. At the peak of his use, he would drink twelve cans of pre-mixed drinks in a session, three sessions a week. He did, however, abstain from alcohol for two years from early 2011 while he was employed as a delivery driver.

48. He married and, with his wife, he had three children. The relationship broke down after 10 years, however, as he and his wife "just grew apart". He has had no contact with his former wife or children. He entered into another relationship with a woman by whom he has had another child, but has no contact with them.

49. He knew the complainant for about five years and they began a relationship in late 2012. The relationship broke down in December 2012, but appears to have been revived, as she told the author of the Pre-Sentence Report prepared for the Magistrates Court that she was "willing to give their relationship another chance".

50. Mr Roberts experimented with illicit drugs as a teenager, but it seems that, as well as alcohol, he used methamphetamines, cannabis and heroin on the day of the offence.

51. Mr Roberts has been diagnosed with Bipolar Disorder and depression for which he has been prescribed medication. He has had contact with Forensic Mental Health and has also completed ACT Corrective Services' Family Violence Cognitive Self Change Program.

52. The criminal history of Mr Roberts shows a mixed picture. He has 16 offences recorded against him. The records also showed some traffic infringement notices but since these current offences are not traffic matters, I consider that I should not have regard to them (s 125 of the Magistrates Court Act).

53. The most worrying aspect is that nine of these offences are breaches of protection orders. He has also breached a suspended sentence, showing altogether a disregard for or inability to comply with court orders. This means that leniency is less able to be afforded Mr Roberts and that specific deterrence plays a greater part in sentencing. It is important, however, that the Court is very careful not to sentence Mr Roberts again for the offences for which he has already been punished: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477.

54. The other matters on his record are not significant for this sentence, save to note that in 2010, he was fined $500 for possessing a controlled weapon without excuse. I do not know what the weapon was.

55. In reporting on the response by Mr Roberts to the offences, the Pre-Sentence Report records:

Mr Roberts reported that he has had time to reflect on the matter before the Court and stated that his behaviour was totally inappropriate and that he is extremely remorseful for his actions. Mr Roberts explained that he was celebrating the completion of his court order and had consumed excessive alcohol as well as a 'cocktail' of illicit substances (methamphetamine, cannabis, heroin) during the day, although maintains that he does not identify any substance use issues.

Mr Roberts acknowledged that he has a history of similar offending, however, stated that he has completed community and custodial programs to address his inappropriate behavioural choices. According to Mr Roberts, he and his partner are on speaking terms and are willing to attend counselling to rebuild their relationship. Mr Roberts' partner advised that they have experienced ongoing issues prior to the incident, adding that she is willing to attend a residential rehabilitation and/or counselling with Mr Roberts to allow them an opportunity to make positive changes in their relationship.

Mr Roberts informed [the Pre-Sentence Report author] that he has written apology letters to his partner and her ex partner and reiterated his commitment to attending programs to address his inappropriate behavioural choices.

56. The Report recorded that Mr Roberts had expressed remorse and committed himself to addressing his behaviour through counselling and other programs. It did note that Mr Roberts denied he had issues surrounding alcohol and other drug use, despite that being a precipitation of the offences. He was assessed as at a medium risk of re-offending.

Desirability of marking exhibits in Magistrate Court proceedings

57. I was much hampered by the absence, on the Magistrates Court file, of documents that had been apparently tendered in the proceedings. They were, as has become regrettably almost standard in such proceedings, not marked as exhibits and apparently not retained on the file. Indeed, though the transcript made it clear that a number of documents were tendered, the Schedule of Documents provided by the Magistrates Court on the appeal records "Nil" for exhibits.

58. I have referred to this problem before in Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24].

59. A similar problem was referred to by Miles CJ in Manny v Burmester [2002] ACTSC 44 at [25], where his Honour said:

The ordinary courtroom procedure of marking documents for identification when they are not regarded as part of the evidence and marking them as exhibits when they are is a useful model even for the informality of the Small Claims Court.

60. In Grimshaw v Mann [2013] ACTSC 189 at [19]- [23], I considered whether this failure properly to record the material before the sentencing Magistrate meant that it had not been received in evidence and concluded that, despite some older authority that would support such an approach, it was not the law.

61. Nevertheless, for reasons that I do not understand, my comments have apparently fallen on deaf ears and, in this case, the problem is serious, for neither party to the appeal could tell me with any certainty what actual material was before the learned sentencing Magistrate.

62. Even after inquiry of the prosecutor who tendered the material, there was no certainty. This is a highly unsatisfactory situation.

63. Some good sense prevailed and material (the photograph and Statements of Facts for prior offending) was tendered by consent, which, it was asserted, would likely permit me to see what was apparently before his Honour.

64. I can only repeat that the marking of evidence material as exhibits and the formal recognition by that of their admission into evidence is an important part of preserving the record of proceedings; it does not seem to me to impact adversely on a busy Magistrates Court and is very important for any appeals that are later taken from the proceedings.

65. The frustration of an appeals court in trying to ascertain the material that was before the trial court would be appropriately relieved by this simple expedient, if not forensic, requirement.

66. It appears that, in addition to the Pre-Sentence Report and the criminal history of Mr Roberts, copies of the Statements of Facts relating to the prior offences of contravening protection orders were tendered. The prosecution said "I tender the facts for those previous convictions as well, not all of them but a great number of them."

67. Thus, it can be seen that there is already an uncertainty about which Statements of Facts were tendered that cannot be resolved from the transcript and, since these documents were not marked and recorded and are no longer on the file, nor by an inspection of the court file.

68. The prosecutor did point out that "it's obviously not for [Mr Roberts] to be punished twice for them". He also submitted that the earlier offences did not all relate to the same victim, but that did not seem to be correct.

69. "[S]ome" photos were also tendered, but, again, it is not possible to say which they were, though it appears most probable that the photographs given to me (and which, in the circumstances, I marked as exhibits) were those tendered to the learned Magistrate.

70. The prosecutor advised the court that, as at that date, Mr Roberts had been in custody for 131 days.

71. The prosecutor then confirmed, contrary to his earlier comment, that all Mr Roberts' prior convictions for contravening protection orders related to one victim. The documents produced to me as the relevant Statements of Facts all related to one victim, a different woman to the victim in this matter; I had the Statements of Facts for all nine prior offences.

72. These previous offences were of varying seriousness. They included:

(a) a large number of telephone communications: between 26 and 27 July 2007, 20 phone calls and 20 text messages; on 25 November 2008, 41 phone calls and five text messages; on 2 November 2009, 38 phone calls; on 3 November 2009, seven telephone calls and four text messages; on 5 November 2009, 33 phone calls; between 6 and 10 November 2009, 28 phone calls;

(b) threats of violence: "You went to the police. You're dead"; threat to burn the house down; "You'd better watch your back"; "I can get you killed for five hundred dollars"; "Don't forget, I know where you live"; "I'm going to make you pay if I have to serve any more time"; "If I'm found fucking guilty, I'll make you pay"; "I'm going to smash your house in"; "If you go to the cops you're fucking dead" and "you're dead slut, you're dead slut, you're dead slut";

(c) actual violence: a beer bottle was thrown at the victim of those offences, smashing near her daughter causing her extreme distress;

(d) following the victim of those offences while she was shopping; and

(e) making abusive, offensive and intimidating comments in the phone calls and text messages with offensive language.

73. Sentencing submissions on the current offences were made by Mr Roberts' counsel. She acknowledged the seriousness of the offences but pointed out that Mr Roberts was intoxicated from alcohol and drugs. She acknowledged, too, that it was risky to throw the broken spectacles at the complainant's face, a vulnerable area, but that the injuries were minor.

74. His counsel pointed out that it appears Mr Roberts had intended to punch the victim but did exercise some self-restraint in acting less seriously by snapping the glasses and throwing them at her.

75. She referred to Mr Roberts' stable upbringing and reasonable employment history. She also referred to the fact that the victim was willing to work on their relationship and that she was present in court. She further noted that Mr Roberts was willing to undertake residential rehabilitation.

76. Mr Roberts' counsel then referred to the fact that Mr Roberts had successfully completed his parole without breach and completed some courses, including a cognitive skills course. He had been in custody for 131 days with no disciplinary breaches. He had pleaded guilty about a month before the hearing. As to remorse, she referred to his plea of guilty, the letter of apology he had sent to the victim, his insight into the inappropriate behaviour and his expression of remorse to the author of the Pre-Sentence Report.

Submissions on the interaction between the two offences

77. The learned Magistrate sought submissions on the interaction between the two offences.

78. Mr Roberts' counsel submitted that the offence of contravention of the protection order offence ceased immediately before the commencement of the assault. The prosecutor submitted that the offence of contravention of the protection order did not so cease, but continued, though that would require some recognition that there were overlapping elements in the two offences when totality principles would apply.

79. Clearly, what the prosecution had in mind was what was said by McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623; [40]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

80. This is somewhat different from the principle of totality to which the prosecutor referred (see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59), for their Honours in Pearce v The Queen went on to say at 624; [45]:

[T]hat may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

81. The prosecution then referred to the fact that this was a family violence offence and referred to what the Alberta Court of Appeal (not, as stated, the Supreme Court of Canada) had said in R v Brown (1992) 73 CCC (3d) 242 at 249; [21]:

When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.

82. This had been cited with approval by the Court of Criminal Appeal of the Supreme Court of Tasmania in Parker v The Queen (Unreported, Tasmanian Court of Criminal Appeal, Green CJ, Underwood and Zeeman JJ, 21 July 1994), 11 and in the NSW Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179.

83. The prosecutor also referred to what I had said in R v B G, cited above (at [4]), and referred to the need for specific deterrence, general deterrence and denunciation to be reflected in the sentence. He referred further to the fact that Mr Roberts had had "the benefit of suspended sentences and other community based orders in the past" and submitted that "[c]learly, they've not worked". He submitted that the objective seriousness fell "somewhere in the middle, if not creeping towards upper [sic] end of objective seriousness", and then submitted that "each offence is mutually aggravated by the other".

84. It appears, too, that defence counsel later provided, in writing, what his Honour described as "useful and detailed submissions" and that the prosecution provided a "written communication" agreeing with them. Neither were included in the file documents from the Magistrates Court. Neither party provided me with a copy.

85. The learned Magistrate, clearly conscious of the need to give appropriately careful thought to the sentence and to digest the relevant material, adjourned for two days.

86. On 26 July 2013 his Honour imposed the sentences for the offences, which I set out above (at [8]). His Honour described the offences and the facts surrounding them. His Honour noted that the protection order "prohibited [Mr Roberts] from making contact with the victim as well as from assaulting her". The order did prohibit Mr Roberts from "causing personal injury" to her.

87. His Honour was obviously concerned about the fact that there were overlapping elements to the two offences and referred to the well-known passage from Pearce v The Queen which I have set out above in part (at [80]). His Honour resolved that by adopting the approach pressed on him by defence counsel, with which the prosecution agreed, namely to take the assault offence into account as forming part of the offence of contravening the protection order, then not taking it into account as a determining sentence for the second offence.

88. His Honour then analysed the offence in careful detail. He identified the following aggravating circumstances:

• That the conduct contravened the protection order in several ways; the initial telephone contact, by "manoeuvring" to bring the victim into his presence, and by the assault;

• The effect of the telephone contact was "to lure her in to face to face contact" with Mr Roberts;

• The conduct included offensive language and verbal abuse;

• Mr Roberts pursued the victim by running after her when she tried to get away from him;

• Mr Roberts destroyed property of the victim as part of his conduct;

• The assault comprised throwing the broken sunglasses at the victim, in circumstances where his Honour inferred that Mr Roberts knew he had broken them and that parts of them were sharp and, therefore, dangerous and that they were thrown with sufficient force to cause the two lacerations.

• The offence of contravening the protection order occurred in the context of a domestic violence offence.

89. His Honour referred to the criminal record of Mr Roberts and, in particular, the nine earlier similar offences and the breach of the suspended sentence. His Honour concluded that specific deterrence was a "very important sentencing consideration" and that there was "little room for leniency".

90. His Honour also referred to the Pre-Sentence Report and set out the assessment of the author as follows:

Mr Roberts is 44 years of age with a history of similar offending behaviour, which has resulted in incarceration as well as supervised community based orders. He reported experiencing a stable and uneventful upbringing and a reasonable employment history. However, Mr Roberts spoke of his ongoing mental health issues and his alcohol and illicit substance use remains questionable.

Mr Roberts expressed remorse for his actions and indicated that he is committed to undertaking any counselling and/or programs to address his behaviour and to rebuild positive relationships. However, this appears to be a familiar theme in Mr Roberts' offending history. It is also worth noting Mr Roberts's denial of his [alcohol and other drug] issues, despite his partner suggesting they have considered the need to attend a residential rehabilitation facility.

Mr Roberts has been assessed at medium risk of reoffending, particularly while his AOD issues remain untreated.

91. His Honour noted the pleas of guilty which he took into account, though, noting that they were entered only after a hearing date had been set. His Honour considered that no sentence other than a sentence of imprisonment was appropriate. His Honour then imposed the penalty that I have noted above (at [8]).

92. Mr R Livingston, who appeared for Mr Roberts, noted the two grounds of appeal: that there was too little discount for the plea of guilty and that the sentence was manifestly excessive.

93. As to the plea of guilty, the sentence was given a discount of four months from a starting point of three years imprisonment. That, he noted was 11%, yet the plea was entered on 29 May 2013, as noted above (at [38]), nearly a month before the hearing, though after that the case had been listed for hearing. This, he submitted, was too small a discount.

94. Mr M Thomas, who appeared for the respondent, submitted that the plea of guilty must be taken in this case to be a late plea, having been entered after a hearing date had been set and by which time effort would have been expended by police and prosecutors in preparing for trial and witnesses contacted.

95. As to the ground that the sentence was manifestly excessive, Mr Livingston submitted that the learned Magistrate had put the objective seriousness of the offences as at too high a level.

96. He pointed out that the complainant had willingly gone to the premises of Mr Roberts' friend, that she must have expected Mr Roberts to be there and that she stayed for over an hour.

97. He submitted that while Mr Roberts was abusive and did follow the complainant when she left, he was intoxicated.

98. He referred also to the photographs and noted that, while they showed an injury to the complainant's forehead, neither they nor the Statement of Facts actually disclosed a laceration to the complainant's chin as stated by the learned Magistrate.

99. He also noted that, while the incident had occurred on 23 February 2013, no action seems to have been taken by police until 8 March 2013 and then Mr Roberts had not been arrested until 15 March 2013. There was no explanation for the delay. There was, also, no allegation of any further contravention of the protection order in that period of nearly three weeks.

100. Mr Livingston submitted that the complainant and Mr Roberts were clearly on speaking terms at the time of the incident and that the Pre-Sentence Report had asserted that they were "willing to attend counselling to rebuild their relationship".

101. Mr Livingston referred to the subjective circumstances of Mr Roberts as set out in the Pre-Sentence Report, especially his age, his employment history, his mental impairment including his involvement with Forensic Mental Health for three years and his criminal record. He submitted that, apart from the nine offences of contravening protection orders (which had been committed in relation to the one victim), his record was not significant with, in particular, a lack of prior history of actual violence, and was not a worrying criminal history for a 44 year old man.

102. He accepted that a custodial penalty was inevitable but submitted that the sentence imposed was not within the range of the proper exercise of the sentencing discretion.

103. He acknowledged that general deterrence was important, always relevant in case of domestic violence, and that in this case, specific deterrence was important.

104. Given the lack of statistical or other information, he submitted that the approach of Higgins CJ in the sentencing of Mr Roberts in 2009 and 2010 was relevant.

105. In the 2009 case, Mr Roberts had pleaded guilty to three charges of contravening protection orders. The first consisted of five telephone calls between 4:50 pm and 9:00 pm, including one in which he threatened to "get one of his junkie friends to bash her". The victim felt scared and upset by the calls.

106. In the second, Mr Roberts called the victim 40 times between 7:45 pm and 9:19 pm. The third offence involved a call by Mr Roberts from the Belconnen Remand Centre.

107. Higgins CJ sentenced Mr Roberts to 12 months imprisonment on each of the first two charges, with the sentence for the second charge to be concurrent as to six months on the first. As to the third offence, his Honour considered that more serious because it was "a contravention over a number of days ... because of [Mr Roberts'] persistence and the fact that it occurred while [Mr Roberts was] on bail too". Although that did not accord with the statement of facts that I saw, these matters led his Honour to impose a sentence of 18 months imprisonment, fully cumulative on the earlier sentences.

108. The total sentence for the three offences was, therefore, three years, but his Honour released Mr Roberts after about a year and made a good behaviour order which included Mr Roberts being required to undertake the Family Violence Cognitive Self-Change Program of ACT Corrective Services which, as I note above (at [51]), he completed.

109. Mr Roberts, however, appeared before his Honour again on 14 September 2010, pleading guilty to two charges of contravening the same protection order. In that case, the facts were that he had followed the victim through the Canberra Centre, standing very close to her at times and swearing at her at various times. Mr Roberts left her but later, when she left a store where she had made a purchase, he came up to her again and again swore at her. She told him that she was going to call the police and he left her.

110. For these offences, Higgins CJ sentenced Mr Roberts to six months imprisonment for each offence, cumulative as to three months, and to be cumulative on the suspended sentence earlier imposed, but set a non-parole period of two years.

111. Mr Livingston submitted, by reference to these sentences, that the current sentence was to be seen as manifestly excessive. He acknowledged that there was an element of contumacy in the offending of Mr Roberts, referring to what I had said in Cotter v Corvisy (2008) 1 ACTLR 299 at 308; [37]-[39], which made the offence serious, as it also had the offences dealt with by Higgins CJ. Nevertheless, he submitted that the offence with which the learned Magistrate was dealing was less serious and so the sentence should have been less.

112. Mr Livingston noted, too, that, on the facts, the offence was significantly less serious than the most serious of the offences in 2007 when Mr Roberts had not only had contact with the victim but had thrown a bottle towards her daughter which had shattered, causing broken glass to fall all around the girl and causing her great distress, for which Mr Roberts was sentenced to 12 months imprisonment with a non-parole period of six months.

113. Mr Livingston further noted that the start of the calculation for the sentence, three years, was 60% of the maximum penalty of imprisonment for the offence, and that the non-parole period was 66% of the head sentence. He submitted that it would appear too much weight had been placed on the prior history of Mr Roberts, leading to the prospect of a breach of the principles in Veen v The Queen (No 2).

114. Mr Thomas submitted that the sentence was well within range. He submitted that the learned Magistrate had been very careful to analyse the offence and was precise in identifying the relevant considerations.

115. He submitted that the learned Magistrate was accurate when he found that there was "little in the material before [his Honour] which would be the basis for optimism about [Mr Roberts'] prospect of rehabilitation".

116. He further submitted that the offences were serious and that there was a strong element in the case that Mr Roberts showed a continuing attitude of disobedience to the law which, on the basis of the principles for which sentences are imposed under s 7 of the Crimes (Sentencing) Act 2005 (ACT), meant that retribution, deterrence and protection of society indicated a more severe penalty, as stated in Veen v The Queen (No 2) at 477. This made the criminal record very relevant, as noted in Cotter v Corvisy at 312; [65].

117. Mr Thomas submitted that the fact that the complainant and Mr Roberts were now on speaking terms was irrelevant and should not reduce the seriousness of the offending.

118. He submitted that the instant offence was serious and that it was more serious than the offences for which Mr Roberts had been sentenced by Higgins CJ in 2009 and 2010.

119. He submitted that Mr Roberts' remorse had to be balanced against the continuing conduct which must lead to little weight being accorded to it.

120. There is no doubt that family violence is a serious problem in Australia. Indeed, Neave JA noted in Director of Public Prosecutions (Vic) v Johnson (2011) 213 A Crim R 262 at 265; [4] that:

[F]amily violence is "the leading contributor of death, disability and illness in women in Victoria aged 15 to 41 years" [Victoria Law Reform Commission, Review of Family Violence Laws, Report (2006), [2.94]].

121. As I have pointed out above (at [1]-[4]) an important part of the response to this has been the domestic violence order. It is important that these have been seen as generally effective, as reported in Jennifer Hickey and Stephen Cumines, Apprehended Violence Orders: A Survey of Magistrates (Judicial Commission of New South Wales 1999) 25-7.

122. Nevertheless, as Charles JA, with whom Brooking and Phillips JJA concurred, said in R v Cotham [1998] VSCA 111 at [14], in relation to domestic violence orders, in Victoria called "intervention orders":

Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only be appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated.

123. I do not know how often domestic violence orders are contravened in this Territory. In Victoria, a Report of the Sentencing Advisory Council, Breaching Intervention Orders (Melbourne, 2008) at 20; [3.6.1], summarised that, of the over 14,000 made between July 2006 and June 2007, over a quarter were breached. This does underline the importance of the court's response and reinforces the comments made by Charles JA as quoted (at [122]).

124. Nevertheless, I note that, in R v Cotham, the appellant contravened the intervention order which prohibited him from contacting the complainant on four occasions, twice in one night, then four days later and again a few weeks later. He entered the complainant's home by cutting a hole in a window, bound her with brown packing tape (for which he was charged with false imprisonment) and threatened her with a kitchen knife on the first occasion. He also stole money and credit cards for which he was charged with theft. He returned later, remaining in the house for some hours. He then returned four days later through the damaged window and again took some personal items. A few weeks later, he contacted the complainant by telephone and when she refused to "drop the charges", he threatened her that "he was going to come after her".

Roberts v Smorhun [2013] ACTSC 218

At a glance

Court

Decision date

Before

Source

Judgment (242 paragraphs)

Roberts v Smorhun [2013] ACTSC 218 (1 November 2013)

Parties

Legislation Cited (5)

Cases Cited (14)