The Queen v Maralngurra [2013] NTCCA 01

PARTIES:	THE QUEEN

	v

	MARALNGURRA, Silas

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	5 of 2012 (21120515)

DELIVERED:	6 February 2013

HEARING DATES:	18 July 2012

JUDGMENT OF:	MILDREN, BLOKLAND & BARR JJ

APPEAL FROM:	KELLY J

CATCHWORDS:

CRIMINAL LAW — Appeal against sentence — Crown appeal — Sexual intercourse without consent — Manifest inadequacy of head sentence — Ground of appeal abandoned — Head sentence not manifestly inadequate. 

CRIMINAL LAW — Appeal against sentence — Crown appeal — Sexual intercourse without consent — Partially suspended sentence — Whether sentencing judge erred in ordering partially suspended sentence rather than fixing non-parole period — Purposes of parole system — Sentencing judge’s discretion not to be interfered with unless clear error established — Open to sentencing judge to order partially suspended sentence — Appeal dismissed.

CRIMINAL LAW — Appeal against sentence — Crown appeal — Sexual intercourse without consent — Partially suspended sentence — Manifest inadequacy of term of imprisonment to be served prior to suspension of sentence — Consideration of all circumstances — Dinsdale v The Queen (2000) 202 CLR 321 — Appeal allowed — Term of imprisonment prior to suspension increased.

Criminal Code (NT) ss 192(3), 414(1)(c), 419(2)
Sentencing Act (NT) ss 5(2)(b), 40(1), 55, 105

Cranssen v The Queen (1936) 55 CLR 509
Dinsdale v The Queen (2000) 202 CLR 321 
House v The Queen (1936) 55 CLR 499
Johnson v The Queen [2012] NTCCA 14
R v JO [2009] NTCCA 4
R v Minor (1992) 2 NTLR 183
R v Osenkoski (1982) 30 SASR 212
R v Riley (2006) A Crim R 414
Stuart v The Queen [2010] NTCCA 16

REPRESENTATION:

Counsel:
	Appellant:	R Coates
	Respondent:	J Hunyor

Solicitors:
	Appellant:	Office of the Director of Public Prosecutions
	Respondent:	North Australian Aboriginal Justice Agency

Judgment category classification:	C
Judgment ID Number:	BLO 1302
Number of pages:	16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Maralngurra [2013] NTCCA 01
No. 5 of 2012 (21120515)

	BETWEEN:

	THE QUEEN
	Appellant

	AND:

	SILAS MARALNGURRA
	Respondent

REASONS FOR JUDGMENT

(Delivered 6 February 2013)

CORAM: MILDREN, BLOKLAND AND BARR JJ

The Court
Introduction
[1]	This is an appeal against sentence brought by the Director of Public Prosecutions.  On 18 July 2012 we announced our decision to allow the appeal and indicated our intention to re-sentence the respondent.  The delay in the provision of certain reports ordered by us has delayed the final disposition of this appeal.
[2]	On 22 March 2012 the respondent was convicted after entering a plea of guilty to one count of sexual intercourse without consent contrary to s 192(3) Criminal Code.  The charge involved digital/vaginal intercourse.  The maximum penalty was life imprisonment.  The respondent was sentenced to a period of imprisonment of four years, eight months partially suspended with an order that he be released after serving one year and eight months subject to detailed conditions.  
[3]	The original Notice of Appeal alleged that the head sentence was manifestly inadequate in all of the circumstances.  That ground was abandoned prior to the hearing of the appeal.  The appellant maintained ground two alleging that the learned sentencing Judge erred by ordering partial suspension of the sentence rather than fixing a non-parole period in accordance with s 55 of the Sentencing Act.  Ground three of the appeal was that the term of imprisonment the respondent was required to serve prior to suspension was manifestly inadequate in all of the circumstances.  
[4]	On 18 July 2012 we allowed the appeal on ground three.  We indicated we would re-sentence the respondent in relation to the length of the term of imprisonment to be served by him prior to being released on a suspended sentence.  To assist us to determine the structure of the sentence we ordered a neuropsychological report be prepared to examine if the respondent suffers from brain damage as a result of volatile substance abuse.  We also ordered a specialist psychiatric report intended to deal with the particular characteristics of the offending, and a pre-sentence report. We requested that, in addition to dealing with the matters outlined in s 106 of the Sentencing Act, the pre-sentence report investigate the respondent’s English language ability and comprehension as well as programmes available to him both within the Darwin Correctional Facility and within the community.  No neuropsychological report was prepared.  We now have the psychiatric report and the pre-sentence report.  Had those reports been before the learned sentencing Judge, the sentence imposed by Her Honour may have been different.  The reports do not assist us in the re-sentencing process.  We also note the psychiatrist’s significant concerns about the respondent’s fitness to instruct, to plead or to stand trial.  This is not an issue that we can take into account on this appeal; however it is open to the respondent’s lawyers to investigate this concern further and consider further proceedings by way of appeal.
Sentencing Facts
[5]	The agreed facts upon which the respondent was sentenced by her Honour were that the victim was visiting Oenpelli in her capacity as a customer service officer for Centrelink.  She was 44 years of age at the time.  She had briefly met the respondent the day before in the course of her employment.  At that time the respondent was aged 18 years and six months.  
[6]	At approximately 6:00pm on 22 June 2011 the victim was exercising by walking along the airport road, Gunbalanya.  The respondent approached her with a request for directions but he then grabbed her and began striking her repeatedly with a metal pole that he was holding.  He dragged her off of the road into an area of bushland, forced her onto the ground and punched her in the head, causing her to become momentarily dazed.  While she was on the ground and struggling the respondent felt her breast and inserted one of his fingers into her vagina to the depth of his last knuckle.  The respondent moved his finger around for about five seconds before withdrawing it and then running off into the bush.  He was arrested on 23 June 2011 both in relation to this offending and an outstanding warrant in respect of the breach of a suspended sentence that had been imposed by the Oenpelli Youth Justice Court on 27 October 2010.  While in custody the respondent told police he had hurt a woman the previous day.  He declined to comment on the offending in an electronic record of interview with police.  
The Impact of the Offending on the Victim
[7]	As acknowledged by the learned sentencing Judge, the offending had a serious impact on the victim.  The learned sentencing Judge explained in sentencing remarks that the offending: 
“... has had a devastating and long lasting effect on that woman on her whole life and flow on bad effects on her family.  She felt violated and dirty.  One of the things that upset her the most, she said, was the fact that you kept grinning the whole time and appeared to enjoy hurting [her]”.
[8]	The victim impact statement describes the physical injuries: bruising suffered by the victim as a result of being struck by the pole, torn cartilage and bruising to the face where she was punched.  The victim has suffered greatly, psychologically and emotionally.  At the time of completing the victim impact statement she was continuing to receive counselling.  Her relationship suffered.  She no longer works in remote communities, has left the Northern Territory and moved interstate.  She no longer feels safe.  We agree with the learned sentencing Judge that the impact of the respondent’s crime on the victim has been serious.  The Sentencing Act requires a court to have regard to any physical, psychological or emotional harm done to a victim.
The Respondent’s Previous Convictions
[9]	The respondent had a number of previous convictions imposed by the Oenpelli Youth Justice Court.  The previous conviction imposed on 27 October 2010 is of particular relevance for sentencing purposes in this case.  That conviction was for an aggravated assault, being an indecent assault on a woman.  On the same day the respondent was sentenced for offences of unlawful entry and damage, stealing, trespass on enclosed premises, unreasonably disrupt privacy and enter and damage business premises.  We were told these offences were committed in Palmerston on 30 March 2010.  The respondent was sentenced by the Youth Justice Court to a total of four months detention suspended on conditions that he report and be subject to the supervision of correctional services for 18 months.  
[10]	In relation to the previous conviction for aggravated assault, the facts were that on 5 December 2009 the respondent was returning home, he saw the victim in her yard, the victim was 57 years old; he entered her yard and began a conversation with her; he told the victim he had to tell her something and in order that she tell the police.  He spoke quietly and acted in a distressed manner.  The victim approached him to listen to him.  He looked up and reached forward with his left hand and grabbed the victim in the crotch region.  The victim jumped back and attempted to kick the respondent.  He lunged towards her and she grabbed a nearby chair and struck him.  He then ran and jumped the rear fence and ran away after a further attempt by the victim to grab him after he located a rock and attempted to return to her yard.
[11]	The facts of this particular previous offending bear significantly on specific deterrence given the similarity with the offending under appeal, particularly commencing the offending with an innocent-sounding request to first obtain the victim’s attention on each occasion. 
[12]	At the time of being sentenced for the offending that is the subject of this appeal, the respondent was in breach of the Youth Justice suspended sentence ordered on 27 October 2010 in relation to this aggravated assault and the property offences.  He was also in breach for failing to report at all as required by the conditions set by the Youth Justice Court.
Respondent’s Personal Circumstances and Matters of Mitigation
[13]	Clearly the respondent’s age of 18 years and six months at the time of the offending was significant.  Her Honour gave significant weight to rehabilitation and accordingly was persuaded to order suspension of the sentence after service of one year and eight months.  The support of the respondent’s parents was emphasized in submissions.  The respondent’s parents disapproved of his behaviour but travelled significant distances to attend court in Darwin on each occasion relevant to the sentencing proceedings in this matter.  The learned sentencing Judge accepted the family was prepared to have the respondent live with them in the event of a partially suspended sentence being ordered.  It was noted they were willing to support his efforts to keep out of trouble and to get away from sniffing, drinking and cannabis.  Counsel for the respondent in the sentencing proceedings said that the family’s priority on release would be to try to engage the respondent with CAAPS rehabilitation service to involve the whole family.  The learned sentencing judge was advised the whole family were willing to support the respondent.  The respondent had never been employed, nor had he attended school after August 2007.  It appears he was involved in poly-substance abuse until taken into custody for this offending.
[14]	The respondent indicated his preparedness to plead guilty on 7 December 2011.  At the committal proceedings two police officers were called to give evidence.  Her Honour accepted the plea as evidence of the respondent’s willingness to facilitate justice and an indication of acceptance of responsibility and remorse.  Her Honour reduced the sentence that would otherwise have been passed by just over 20 percent.  We agree this reduction is entirely appropriate in the circumstances. 
[15]	It is clear her Honour gave substantial weight to rehabilitation given the respondent’s age and family support.  While rehabilitation is a significant principle in sentencing the respondent, in our view this was also a case where general and specific deterrence were significant sentencing objectives to be reflected in not only the head sentence but also in the term required to be served before suspension.
Grounds of Appeal
Ground one – That the learned sentencing Judge erred in imposing a head sentence which was manifestly inadequate in all of the circumstances of the case
[16]	Although the appellant abandoned this ground, it was pointed out in The Queen v JO, that even in the absence of a ground of appeal attacking the length of individual sentences and the presence of a Crown submission that the individual sentence is not manifestly inadequate, the Court still has a duty to form its own view as to the adequacy or otherwise of the individual sentence and to act on that view.  
[17]	In our view this ground was properly abandoned.  As stated, notwithstanding the obvious objective seriousness of this offending, her Honour was obliged to have significant regard to the respondent’s young age, his plea of guilty, family support and general antecedents.  For a young person with the antecedents of the respondent, the head sentence was not “so manifestly inadequate as to shock the public conscience and demonstrate error in point of principle”.  Even in a serious case such as this, where the offender is youthful, it is still open to set a head sentence less than five years imprisonment, thus allowing greater flexibility to serve the interests of rehabilitation and therefore the broader community interest without the constraints imposed by s 55 of the Sentencing Act.  Had the head sentence been greater than five years s 55 Sentencing Act would have required her Honour to set a non-parole period of 70 percent of the total term.  In all of the circumstances, we would not find that the head sentence was inadequate.  
Ground two – That the learned sentencing Judge erred by ordering partial suspension of the sentence rather than fixing a non-parole period in accordance with s 55 of the Sentencing Act
[18]	The appellant argues the learned sentencing Judge should have fixed a non-parole period in accordance with s 55 of the Sentencing Act which determines that a minimum non-parole period in cases of this kind shall be 70 percent of the term served.  The appellant argued this was a proper case for a non-parole period rather than a suspended sentence as the circumstances showed the respondent needed to prove himself capable of embracing a responsible attitude to life and earn his release on parole rather than being given a fixed term.  
[19]	In R v Minor, this court considered the issue of when it was more appropriate to order release on a partially suspended sentence rather than an order, the effect of which would be that the parole board has control over the date of an offender’s release once a minimum term has been served.  Martin J (BF) observed: 
“The parole system provides an incentive to prisoners to achieve the conditions upon which they might reasonably expect to obtain their release as soon as the non-parole period has expired, and enables the parole authority to not only consider whether or not a prisoner should be released at that or some time thereabouts, but also the conditions under which he or she should be released taking into account the then prevailing relevant circumstances”.
[20]	Both Asche CJ and Mildren J observed that with a relatively long sentence, the parole board is often in a better position to determine whether it is appropriate that a prisoner be released than a sentencing Judge would have been at the time the original sentence was imposed.  In Stuart v The Queen, this court observed that a prisoner who needs to be given the opportunity to prove himself capable of resuming a responsible attitude to life is best given that opportunity by the imposition of a non-parole period.  
[21]	Whether to set a non-parole period or a suspended sentence is a matter of discretion for the sentencing Judge.  This Court will only interfere with the exercise of a sentencing discretion if the sentencing Judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide them, mistakes the facts or does not take into account some material consideration.  This is a case where either the option of a sentence suspended after a term served or the setting of a non-parole period would have been appropriate in terms of being properly within the discretion of the sentencing Judge.  Clearly the age of the respondent and his family support in a remote community were factors that justified weighing the discretion in favour of a partially suspended sentence.  This is not a discretion that will be interfered with lightly by this Court when either disposition would effectively achieve the objectives of sentencing.  
[22]	Recently this court dealt with the same issue in Johnson v The Queen where the appellant alleged error because the sentencing Judge had ordered a minimum non-parole period be set rather than a suspended sentence.  In that case the Court expressed its reluctance to interfere in the exercise of the discretion when both options may have been open.  A clear case of error needs to be established before this court will interfere with the exercise of such a discretion.
[23]	In this matter, given the age of the respondent, the learned sentencing Judge was not in error in determining a partially suspended sentence was to be preferred.  The sentencing options would have been constrained by s 55 Sentencing Act had a non-parole period been set.  The learned sentencing Judge structured a suspended sentence in accordance with detailed conditions recommended at that time by Correctional Services.
[24]	In our view no error has been established in the decision to order partial suspension of the sentence rather than a non-parole period.
Ground three – The term of imprisonment that the respondent was required to serve prior to suspension of the sentence was manifestly inadequate in all the circumstances.
[25]	We have concluded this ground is made out.  The respondent argued the importance of rehabilitation and the problems the respondent may have in accessing available programmes while in custody.  The support of the parents and their willingness to assist in reducing the risk of re-offending was emphasised.  The learned sentencing Judge was impressed that the family were willing to support the respondent in a programme and participate with him.  During the hearing on appeal counsel acknowledged that, given the offending was of a sexual nature, the respondent would be unlikely to be accepted in a number of community based rehabilitation centres.
[26]	The respondent submitted it was open to the learned sentencing Judge to emphasise rehabilitation and to form the view King CJ spoke of in R v Osenkoski that “leniency at [this] particular stage of the offender’s life might lead to reform”.  Such reform or rehabilitation is in the interests of the respondent and the community.  
[27]	The respondent was on a suspended sentence at the time of this offending but was also in breach of reporting conditions.  He had only recently been placed on the suspended sentence.  His criminal history also revealed that he had previously breached bail and committed offences while on bail.  The previous offending in particular at Gunbalanya on 5 December 2009 enlivens the objective of personal deterrence to a significant degree in this particular case notwithstanding the respondent’s age.  Clearly the offending was serious.  As well as the seriousness inherent in any case of sexual intercourse without consent, the respondent engaged in an element of trickery to get the victim’s attention and then disabled her using a weapon.
[28]	In fixing the term to be served before suspension of the sentence, it should be remembered the minimum term has a punitive element.  In this case general and particularly personal deterrence is required to be reflected in the portion of the sentence to be served.  In discussing similar Western Australian legislation, in Dinsdale v The Queen, Kirby J said the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term.  Further, His Honour said this means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender.  It requires a consideration of all of the circumstances.  The minimum term on this analysis must give attention to not only the circumstances of the offender but also the objective features of the offence.  
[29]	The Sentencing Act (NT) allows a Court to make an order suspending a sentence where it is satisfied that it is desirable to do so “in the circumstances”, requiring, in our view, an analysis of the same matters discussed by Kirby J in Dinsdale v The Queen.
[30]	Given the objective seriousness of the offending, the impact of the crime on the victim, and the previous breaches and convictions, reliance on the support of the parents in circumstances where previously such support had not been effective to stop the respondent offending could not justify the release at one year and eight months.  We agree that too much weight was given to the support of the respondent’s parents in fixing an earlier release date in the circumstances.  The respondent was living with his parents when he committed the previous offences, when he failed to answer bail, to report to corrections and when he committed this offence.  There was insufficient foundation to conclude the parents could assist to reduce the risk of re-offending.  
Re-sentencing
[31]	We have come to the view the respondent should serve three years imprisonment before being released to reflect adequately the seriousness of the offending and the respondent’s poor antecedents.  The operational period during which the respondent is not to commit any further offence punishable by imprisonment is one year and eight months from the date of release.
[32]	Our attention was drawn to s 419(2) Criminal Code, which provides that a sentence shall not be increased by reason of or in consideration of any evidence that was not given at the trial.  Our consideration of the psychiatric report and the pre-sentence report was relevant to the structure and any conditions on the partially suspended sentence rather than the length of the sentence.  The reports are unhelpful to the respondent and are not of further assistance to us.  Correctional Services no longer regard the respondent as suitable for supervision, however in our view the conditions, including supervision as imposed by the learned sentencing Judge, should continue.  We note this can no longer include the condition that the respondent be placed on the banned drinkers register given the cessation of that programme.
Orders
1.	The appeal is allowed.
2.	The term of imprisonment the respondent is required to serve prior to release is set aside.
3.	The sentence of four years and eight months imprisonment is to be suspended after the respondent has served three years imprisonment.
4.	The operational period is one year and eight months from the time of release.
5.	The conditions imposed by the learned sentencing Judge save being placed on the banned drinkers register are confirmed for the duration of the operational period.