Toby David Roberts v Nathan Robert Smorhun

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 01 November 2013
• Date: 01 November 2013
• Docket Number: No. SCA 59 of 2013

[2013] ACTSC 218

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCA 59 of 2013

Between:

Toby David Roberts

Appellant

and

Nathan Robert Smorhun

Respondent

Counsel for the Appellant: Mr M Thomas

Counsel for the Respondent: Mr R Livingston

Burge v McCarron [2011] ACTSC 87

Cameron v The Queen (2002) 209 CLR 339

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Connelly v Director of Public Prosecutions [1964] AC 1254

Cotter v Corvisy (2008) 1 ACTLR 299

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) 240 FLR 176

Grimshaw v Mann [2013] ACTSC 189

Grooms v Toohey (2012) 7 ACTLR 1

Holliday v The Queen [2013] ACTCA 31

House v The King (1936) 55 CLR 499

Keane v Police (1997) 69 SASR 481

Manny v Burmester [2002] ACTSC 44

Mill v The Queen (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) 194 CLR 610

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

R v Brown (1992) 73 CCC (3d) 242

R v Cotham [1998] VSCA 111

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

R v Hamid (2006) 164 A Crim R 179

R v Meyboom [2012] ACTCA 48

R v Olbrich (1999) 199 CLR 270

R v Riddle (2010) 4 ACTLR 153

R v Sellars [2010] NSWCCA 133

R v TW (2011) 6 ACTLR 18

R v Williams (1990) 50 A Crim R 213

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

Siganto v The Queen (1998) 194 CLR 656

Veen v The Queen (No 2) (1988) 164 CLR 465

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

Crimes (Sentencing) Act 2005 (ACT), s 7

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

Magistrates Court Act 1930 (ACT), Pt 3.2, Div 3.2.10, ss 125, 216

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)

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

CRIMINAL LAW — Particular offences — domestic violence offences — contraventions of a domestic violence order — seriousness of — necessity of deterrent sentences — importance of specific and general deterrence to — aggravating features of such contraventions

CRIMINAL LAW — Sentencing — whether the principles in Pearce v The Queen (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

ORDER

THE COURT ORDERS THAT:

• 1. The appeal be upheld.

• 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.

JURISDICTION

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.

THE NOTICE OF 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.

THE OFFENCES

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...