Whyms v Rowe [2004] ACTSC 18 (16 April 2004)

Last Updated: 23 April 2004

DAVID DENNIS WHYMS v KIMBERLY JOYCE ROWE

[2004] ACTSC 18 (16 April 2004)

APPEAL - sentence - totality principle - periodic detention imposed for assault - appellant serves interstate imprisonment between commission of offence and sentence - whether magistrate erred in not properly taking into account time in NSW prison.

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

Alexander Robert MacDonald (1990-1991) 52 A Crim R 349

L Vogel and Son Pty Limited v Anderson, Minister of State for Customs and Excise for the Commonwealth of Australia [1967] HCA 46; (1968) 120 CLR 157

Trevor John Close (1992-1993) 65 A Crim R 55

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

Darren Edward Wilkins (1988) 38 A Crim R 445

Zhen Qi (1998) 102 A Crim R 172

Ivan Potas, Sentencing Manual: Law, Principles and Practice in New South Wales (Lawbook Co, Sydney, 2001)

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 82 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 16 April 2004

IN THE SUPREME COURT OF THE )

) No SCA 82 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: DAVID DENNIS WHYMS

Appellant

AND: KIMBERLY JOYCE ROWE

Respondent

ORDER

Judge: Connolly J

Date: 16 April 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed and the Magistrate's orders be confirmed.

1. This is an appeal against sentence from a decision of Magistrate Doogan, who on 3 December 2003 sentenced the appellant for the offence of assault upon his girlfriend on 12 January 2002, to which he had pleaded guilty. The facts of this matter, which appear in the appeal book at 37-38, were that police attended an address in Narrabundah at about 4 o'clock in the afternoon of that date, and observed a female upset and with a small amount of blood on her upper lip. She told police that there had been an argument with the appellant, who had wanted to borrow her car. She had not given him the keys, and he had pushed her over. He grabbed the keys from her and unlocked the car. She then sat in the car and the appellant pulled her by the hair out of the vehicle, and took the vehicle.

2. For this offence the learned Magistrate imposed a sentence of nine months imprisonment to be served by way of thirty-six periods of periodic detention. The appellant, who is thirty-five years of age, has a very substantial criminal record, with some 150 offences in New South Wales and the Australian Capital Territory, mostly for property crime. Significantly, he was jailed in 1998 for offences of assault occasioning actual bodily harm, assault police and breach apprehended violence order. He was sentenced to nine months imprisonment on each charge from 7 July 1998, and an additional nine months commencing at the expiration of these sentences. In December 1997 he had been sentenced to three months imprisonment on charges of assault and breach an apprehended violence order. An appeal against these convictions and sentences was dismissed in August 1998.

3. On its face, it seems to me that a period of nine months imprisonment, to be served by way of weekend detention over a period of 36 weekends, is not manifestly excessive for what was an assault in circumstances commonly described as domestic violence, for an offender with a long and serious criminal record, and who has previously served periods of full-time imprisonment for assault and breaching an apprehended violence order.

4. Judges and magistrates must take offences involving domestic violence seriously. The principles to be applied in dealing with offences of domestic violence are well set out in Ivan Potas, Sentencing Manual: Law, Principles and Practice in New South Wales (Lawbook Co, Sydney, 2001) where the author says at 316 -

Violent attacks in domestic situations must be treated with real seriousness: Powell (Christopher John) [2000] NSWCCA 108 per Smart J at [15]. Until men (who are the perpetrators of most domestic physical violence) understand that the law will treat with real seriousness cases which hitherto have been dismissed as having "domestic " significance, this appalling series of violent acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop: Ross (David) unreported, NSW CCA, 20 November 1996). Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished: Fahada (Abdulrahmna) [1999] NSWCCA 267 at [26].

5. It seems to me that the views stated by the New South Wales Court of Criminal Appeal in relation to the proper sentencing approach to domestic violence matters are equally applicable in this Territory.

6. The argument in the appeal is that the learned Magistrate erred in not properly applying the principle of totality by failing to adequately address the fact that, between the date on which the appellant indicated a plea of guilty and the date of sentencing, the appellant had been convicted of and served a period of imprisonment in New South Wales for other offences.

7. The appellant indicated, at the first opportunity on 26 January 2003, that he would plead guilty to the charge of assault. On 4 April 2002 the learned Magistrate found the offence proved and adjourned the sentencing to 22 May 2002, ordering a pre-sentence report and granting the appellant bail. On 13 May 2002 the appellant appeared before the Local Court in Queanbeyan and was remanded in custody. Full details of the offences in New South Wales are not before me, but his criminal record indicates that on 15 August 2002 he was convicted in the Queanbeyan District Court of aggravated break and enter and commit serious indictable offence. He was sentenced to three years imprisonment from 10 May 2002, with a non-parole period of eighteen months. He was again sentenced in the Queanbeyan Local Court on 27 August 2002 for driving whilst disqualified, break and enter a building and commit serious indictable offence, goods suspected stolen on premises, possess ammunition without licence and possess housebreaking implements. He was sentenced to 12 months imprisonment for the break and enter, six months for each of the other charges, and four months for the driving charge, all sentences to be served cumulatively. These were concurrent with the earlier three year head sentence, so did not increase his head sentence or non-parole period. In October he was sentenced in the Goulburn Local Court for goods suspected stolen on premises, possess prohibited plant, possess unauthorised firearm, possess prohibited drug, possess unregistered firearm and not keep firearm safely, and was sentenced to six months imprisonment on each charge from 16 October 2002. Again, this did not push out his original head sentence and non-parole period.

8. The appellant was released from custody in New South Wales on parole on 9 November 2003, and presented himself to the ACT authorities to have the assault charge dealt with.

9. It is argued that the learned Magistrate erred in not applying the principle of totality in not taking into account the New South Wales sentences. In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) stated that it is appropriate for a sentencing court to have regard to a prior sentence in another jurisdiction. Where an offender comes before a court in one state or territory, he or she can of course ask that a whole series of offences be dealt with together. Where offences are committed across state or territory borders, the High Court properly noted (at 66) -

The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.

10. The High Court went on to say at 66 that the proper approach for a sentencing judge to have taken -

... was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.

11. In Mill's case the appellant had committed three armed robberies over a six-week period, two in Victoria and one in Queensland. After his release on parole in Victoria he was transferred to Queensland, and sentenced to a head sentence of eight years with a non-parole period of three years to reflect the period served in Victoria. The High Court held that the sentencing judge and Queensland Court of Appeal erred in applying this reasoning to the non-parole period only.

12. It was said that the learned Magistrate erred in failing to apply this approach here. The first point to be made is that I am not satisfied that this appeal raises the principle in Mill's case. That case concerned (at 62) -

the appropriate principle of sentencing when crimes closely related in time and nature are committed in more than one State or Territory.

13. I am not at all sure that the present appellant presents as a person who was being sentenced in respect of "crimes closely related in time and nature". The offence of assault committed in the ACT was an assault committed on his girlfriend. The New South Wales offences were property offences (break and enter, possess stolen goods, possess housebreaking implements), drug offences (possess prohibited drug, possess prohibited plant) and firearms offences (possess unauthorised firearm, possess unregistered firearm and possess ammunition). These are not, it seems to me, offences properly described as closely related to a domestic violence assault. There was no clear material before me or the Magistrate as to the timing of these offences, beyond the fact that the assault occurred on 12 January 2002, and he was convicted of the New South Wales offences in May, August and October 2002. The best information before the Magistrate as to when the New South Wales offences were committed was the submission of his counsel that the offences occurred "In 2002 prior to 10 May" (AB 10).

14. In submissions before the learned Magistrate, counsel for the appellant urged that the 18 months that he had served in custody for the New South Wales offences had to be borne in mind when sentencing him for the ACT assault in order for the principle of totality be taken into account (AB 16). The learned Magistrate stated that that had "nothing to do with these offences" (AB 17), and it seems to me that the learned Magistrate cannot be said to be in error on this point, as the ACT assault charge, the subject of this appeal, was, in my view, a very different type of offence to the property, drug and firearms offences for which he had been sentenced on three occasions in New South Wales between May and October 2002. The learned Magistrate correctly observed that the appellant had had the benefit of the principle of totality during these sentencing exercises.

15. I am not satisfied that the learned Magistrate erred in not adopting the approach that is to be taken when sentencing an offender who commits a series of "crimes closely connected in time and nature" in two different jurisdictions as there is no evidence to justify a finding that the assault was closely connected in nature to the NSW offences. However, if I am wrong on this, then the appropriate approach that the learned Magistrate should have taken would have been to go through the hypothetical exercise described in Mill's case. This was more fully described in Alexander Robert MacDonald (1990-1991) 52 A Crim R 349 where Studdert J said that a sentencing judge should ask the question -

... what would have been likely to have been the effective head sentence if the applicant had committed all these armed robberies, including the ones committed in New South Wales, in the one jurisdiction and had he been sentenced for them all at the same time.

16. If the learned Magistrate asked herself this question, she would have to consider what penalty might have been imposed as an effective head sentence if the applicant had committed all the property, drug and firearms offences, together with the assault, in the one jurisdiction. It is of course entirely appropriate to take the principle of totality into account in sentencing for a range of unconnected offences (L Vogel and Son Pty Limited v Anderson, Minister of State for Customs and Excise for the Commonwealth of Australia [1967] HCA 46; (1968) 120 CLR 157 at 168, Trevor John Close (1992-1993) 65 A Crim R 55 at 59). In such circumstances, the sentencing judge would have to deal with the domestic violence offence having regard to the New South Wales authorities I have set out above. The sentencing judge would have to have regard to the two prior occasions that the appellant had been dealt with, by way of periods in custody, for assault and breaching an apprehended violence order.

17. It does not follow that a sentencing judge would have made any sentence for the assault concurrent with the unrelated property, drug and firearms offences. The principle of totality requires that -

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. (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 per McHugh, Hayne and Cullinan JJ at 624).

18. Whether sentences should be made concurrent or cumulative is of course a matter for judicial discretion. In Darren Edward Wilkins (1988) 38 A Crim R 445, Lee CJ at CL made the observation at 449 that -

Whilst it is undoubtedly true that there is a practice in cases where there is but one criminal enterprise not to impose cumulative sentences, nothing has been referred to us by either counsel to indicate that that is other than a practice.

19. The converse of this is that where a court is dealing with a series of apparently related events (such as the property, drug and firearms matters) and an unrelated matter such as the assault, a sentencing judge might well choose to make a term of imprisonment for the assault cumulative upon the other concurrent terms. Given that the appellant has twice been sentenced for assault and breach of apprehended violence orders, for periods of three months and then nine months, a cumulative additional sentence of something in excess of nine months could be expected. This may be reduced to some extent pursuant to the principle of totality, but an additional sentence of three to six months full-time imprisonment would be within range.

20. If a sentencing judge decided to proceed by way of concurrent sentences, it is inevitable that, even having regard to the principle of totality, the effective head sentence and non-parole period would have been well in excess of the three years and 18 months that was imposed for the property, drug and firearms offences. It is of course extremely difficult to go through this hypothetical exercise without greater knowledge of the offences for which he was dealt with in New South Wales, and the circumstances of the earlier offences. If the assault and apprehended violence order breaches related to a domestic partner, then the sentencing court may well take an even more severe view of the latest assault. In any event, a result pushing out the effective head sentence by three to six months would seem within range.

21. It seems to me that even if this exercise, with all its limitations, was undertaken, it is not apparent that the sentence imposed was manifestly excessive. True it is that if the hypothetical exercise had been undertaken, the end result would have been a longer head sentence and non-parole period, rather than a sentence of periodic detention. The range, it seems to me, may have been three to six months. But it seems hard to argue that periodic detention, being weekend detention at Symonston, is more onerous than an additional period of three to six months spent in a New South Wales prison. In his submissions, Mr Doig stressed his client's desire to provide care for his son and to end his pattern of longstanding criminality. He will, of course, be able to achieve both goals more effectively by remaining with his family during the week and serving time by way of periodic detention than if he was sentenced again to a period of full-time imprisonment. Although Mr Doig argued that periodic detention should be equated with full-time imprisonment, with the consequence that the appellant be regarded as having been sentenced to nine months full-time imprisonment, I know of no authority that compels this result, which is contrary to common sense. Being deprived of liberty over weekends for nine months would not be regarded by the community as being the same as full-time imprisonment for nine months. This common sense view has been endorsed in the NSW Court of Appeal. In Zhen Qi (1998) 102 A Crim R 172, Smart J, with whom Ireland and Dunford JJ agreed, said at 176 -

I do not regard periodic detention as being fifty percent as significant as a full time sentence. It is appreciably less ...

22. On this basis, it seems to me that nine months of periodic detention is within the range of three to six months full-time imprisonment.

23. It seems to me that the learned Magistrate was correct in making the observation that some period of imprisonment was the inevitable consequence of this offence, even taking into account an early plea of guilty. If this was a matter where, under the principle in Mill's case, the learned Magistrate should have gone through a hypothetical exercise of determining what sentence would have been appropriate under the principle of totality, and I am not satisfied that it was, such an exercise would have resulted, in my view, in the inevitable consequence that the appellant would have been sentenced to a significantly greater head sentence and non-parole period. This may have been within the range of three to six months of full-time imprisonment. It seems to me that a sentencing judge or magistrate who dealt with the domestic violence assault under the principle of totality in such a way that it would not have increased the head sentence or non-parole period from that imposed for the property, drug and firearms offences would have erred. The community, rightly, would regard any non-custodial option for this offence as an inadequate response to a domestic violence offence, and an appeal court would intervene.

24. Given that some additional period of imprisonment was the only appropriate sentencing option, the learned Magistrate then had to consider what penalty was appropriate.

25. The learned Magistrate made the observation, which, in my view, was unfortunately all too accurate, that the appellant's history has shown that periods of full-time imprisonment have had little deterrent effect in the past. He has committed offences while on bail, or shortly after release on parole. The learned Magistrate, in imposing a sentence of periodic detention, has, it seems to me, applied a sentencing option that has not been tried before, and that might, if the appellant's assertions that he wishes to care for his child and turn away from crime are true, provide a more effective form of punishment than a further term of full-time imprisonment. In my view, the learned Magistrate's sentencing discretion has not miscarried.

26. I would dismiss the appeal and confirm the Magistrate's orders.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 16 April 2004

Counsel for the appellant: Mr A Doig

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Mr A Robertson

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 13 April 2004

Date of judgment: 16 April 2004