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- Court of Criminal Appeal
Charges: Aggravated assault x 1, property damage x 1, unlawfully cause serious harm x 1.
Proceedings: Crown manifest inadequacy appeal against sentence.
Issue: Whether sentence manifestly inadequate.
Facts: The male respondent and female victim were in a de-facto relationship and had three primary school aged children [24]. On 19 November 2020, while intoxicated, the respondent became angry and punched the victim in the face twice. The following day, the respondent punched, kicked, and repeatedly hit the victim with a cricket bat and frying pan. The victim sustained multiple injuries, including a hand fracture that amounted to serious physical harm [8]-[9]. The respondent had previous domestic violence convictions and a history of alcohol misuse [26]. The respondent pleaded guilty to the charges and was sentenced to 3 years and 3 months imprisonment, with a non-parole period of 1 year and 8 months [2]-[3]. The Crown appealed the sentence on the ground that it was manifestly excessive.
Decision and Reasoning: Appeal dismissed.
The appellant emphasised ‘principles enunciated by… Courts in relation to domestic violence offending and the need… to impose sentences which serve to protect the victim and the community and… serve as a deterrent’, citing The Queen v Wurramara [2011] NTSC 89 (21 October 2011): ‘The courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so’ [32].
The appellant also cited Emitja v The Queen [2016] NTCCA 4 (21 October 2016): ‘As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities. While it may be accepted that some Aboriginal communities have an unusually high incidence of serious crimes of violence, and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence, Aboriginal women and children living in those communities “are entitled to equality of treatment in the law’s responses to offences against them”. The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature’ [33].
The Court concluded that ‘the sentence, while lenient, perhaps even very lenient, does not fall outside the legitimate limits of the sentencing discretion. The appellant has not identified any error of principle and the sentence is not so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle. It is not unreasonable or plainly unjust’ [44].
Offences: Murder
Proceedings: Application for leave to appeal against conviction
Ground: The trial judge erred in directions that were given to the jury bearing on the burden and standard of proof.
Facts: The female victim and male applicant had been in a domestic relationship for a number of years and were staying together at the applicant’s mother’s home the night before the offending. On the morning of the offending, the applicant and victim were alone together at the house. The applicant beat the victim and caused at least 28 injuries, many of which required severe force, including impacts to the scalp and face, impacts to the trunk (corresponding to three fractured ribs), impacts to the arms (causing a complete break in one arm), and impacts to the legs (including stab wounds). Afterwards, the applicant went to a neighbouring house to get help, telling the neighbour that the applicant’s wife was in pain and had been hitting herself. The neighbour took the applicant to the nurse’s residence where the applicant told the nurse that his wife had been drinking, had a sore arm and felt sick. The nurse told the applicant to bring his wife to the clinic at 8:30am as it was not an emergency. The neighbour dropped the applicant back at the house before going back there himself where he saw that the victim was not moving. They fetched the nurse who confirmed that the victim had died.
When police arrived, the applicant told them that his wife "went crazy" after drinking alcohol and hit herself on the head with rocks. He also told them that she started to go a bit crazy and make him angry so he "picked up a knife and stabbed her in the bum and the leg and her hand" and "grabbed [his] axe and hit her on the arm, the leg and the top of the head" [7]-[8]. An axe and knife were found in the applicant’s bedroom. The applicant was found guilty of murder (but argued at trial that it should only have been manslaughter). He appealed this conviction on the ground that the trial judge erred in directions that were given to the jury bearing on the burden and standard of proof.
Judgment: The court dismissed the appeal, finding that the specific directions given by the trial judge were not attended by error nor did they give rise to any miscarriage of justice. The court found that at trial, defence counsel did not raise any query in relation to the first impugned direction and held that "The direction was not at that time considered inconsistent with or inimical to the legal and forensic basis of the defence case" [24]. Furthermore, while the court found that it may have been appropriate to remind the jury, at the point the direction was made, that the prosecution had to prove beyond reasonable doubt that the applicant intended to cause the victim at least serious harm and in that context that the jury should take into account all of the evidence, the court considered that it was unnecessary to do so because of the directions given elsewhere [30].
The court further held that no error was made in relation to the second impugned direction. The court held that it was open to the jury to make no conclusive finding on the issue of whether the applicant thought he was hitting the victim with a stick and still nonetheless be satisfied beyond reasonable doubt that the applicant meant to cause serious harm, simply because of the prolonged nature of the beating and the multiple impacts involved [36].
The court also held that no error was made in relation to the third impugned direction, finding that "the trial judge’s summing up adequately conveyed to the jury that the ultimate question was whether, in the light of the evidence of intoxication and all other relevant circumstances, the prosecution had proven beyond reasonable doubt the intent necessary for the crime of murder" [47].
Charges: Murder x 1.
Case type: Application for leave to appeal against conviction.
Facts: The applicant man pleaded not guilty to an ex officio indictment charging him with the murder of his female de facto partner (the deceased). Prior to the jury trial, a voir dire was conducted to determine the admissibility of admissions made to undercover police and in a police interview. The trial judge ruled these admissions admissible. The applicant was later found guilty of murder by majority verdict and sentenced to life imprisonment with a 21 year and 6 month non-parole period.
A key issue on appeal related to the evidence in relation to the undercover police operation. The Court detailed how undercover police established a fake criminal operation and used various tactics to gain the applicant’s trust. The applicant had participated in various tasks or scenarios, none of which were illegal. These scenarios were designed to make the applicant believe that the group had power, by virtue of its links, to corrupt law enforcement officers, and to destroy incriminating evidence. The applicant then met with a fictitious crime boss. The ‘boss’ utilised the interview technique of ‘minimization’, by which he sought to devalue the deceased and other women in order to create a bond of misogyny to gain the applicant’s trust. The applicant eventually admitted to killing the deceased by punching her to the head and then choking her, and led the operatives to the site of the remains. He subsequently gave evidence at trial that he had killed her under provocation.
Issue: The appellant sought leave to appeal against the conviction on the grounds that:
Held: The application for leave to appeal was refused. The trial judge observed that there was no evidence that the scenarios in which the applicant participated involved violence and held that the undercover police did not engage in oppressive conduct. His Honour had contrasted that position with the scenarios in some of the Mr Big operations in Canada which employed violence to create an impression that the fictitious criminal organisation tolerated and was prepared to use violence. The Canadian approach did not assist the applicant as there was no issue that the applicant made a false or unreliable confession.
Charges: Murder x 1
Proceedings: Crown appeal against sentence
Grounds: The non-parole period fixed by the sentencing judge is manifestly inadequate:
Facts: The respondent man was sentenced to imprisonment for life with a non-parole period of 21 years and six months for the murder of his de facto partner. While initially pleading not guilty, the respondent admitted to killing the deceased during the trial but ‘asserted that he had done so under provocation’ [3]. The trial judge found that a longer non-parole period was warranted because the respondent ‘killed the deceased specifically to ensure that she would have no role in their son’s upbringing…That the respondent engaged in detailed and calculated planning prior to the killing, and a complex cover-up after the event…The respondent positively obstructed and misled police investigating the disappearance of the deceased…[and] that the respondent demonstrated no remorse for killing the deceased’ [5].
Decision and reasoning:
The appeal was dismissed.
‘In our opinion, the sentencing judge was no doubt correct in determining that a longer non-parole period was warranted because the objective and subjective factors affecting the relative seriousness of the crime placed the offending above the middle of the range of objective seriousness even allowing for mitigating factors. The question is whether the non-parole period fixed as part of that assessment was manifestly inadequate.’ The court provided that because the crime committed ‘did not involve the use of a weapon; it was not committed in company; the attack upon the victim was relatively swift and did not involve a prolonged physical assault upon her; the victim was not mutilated; the victim was not psychologically tormented prior to being killed; and the victim was not made to suffer physically prior to being killed’ [56], the non-parole period was not manifestly inadequate. They also provided that ‘the respondent’s lack of remorse did not operate as a ground for increasing the length of the non-parole period’ [56], and that the respondent’s criminal history and personal circumstances were not aggravating factors.
Charges: Murder x 1.
Case type: Application for an extension of time and leave to appeal.
Facts: It was alleged that the applicant and the deceased were drinking with others and became heavily intoxicated. They began arguing over jealousy issues. They made their way to a shed in which the applicant was staying at the time. The following morning, the applicant told an officer at the police station that he had a fight with his wife the previous evening, but did not disclose the nature of the fight or the deceased’s condition. At that time the deceased was lying dead on a mattress in the shed. Forensic testing detected the deceased’s blood on the jeans and boots that the applicant was wearing at the time of his arrest. It is important to note that the Crown adduced evidence of 10 assaults between 2005 and 2013 by the applicant on the deceased to which the applicant had pleaded guilty before the Local Court. The trial judge ruled that the evidence of the assault was admissible as relationship evidence. The applicant filed an application for leave to appeal, as well as an application for an extension of time.
The applicant sought leave to appeal on the grounds that:
Issue: Whether extension of time should be granted; Whether forensic evidence concerning bloodstains were false, misleading, inconsistent, flawed and/or inconsistent with the prosecution case and guilt; Whether the trial judge’s direction to the jury concerning the bloodstains were inconsistent with the evidence; Whether the trial judge wrongly admitted relationship evidence.
Held: By reference to the principles in Green v The Queen [1989] NTCCA 5, the Court dismissed the application to extend time. The applicant did not provide any reason for the delay beyond the fact that he ‘could not find a lawyer’, and there were no exceptional circumstances or special reasons to warrant granting an extension ([31]). The Court also held that no viable grounds of appeal were established. Notably, their Honours upheld the trial judge’s decision to admit the evidence of 10 prior domestic assaults as relationship evidence under Evidence (National Uniform Legislation) Act. They held that the relationship evidence provided insight into the nature of the applicant’s and deceased’s relationship. Such evidence would potentially assist the jury to determine if they were in a ‘harmonious and caring relationship or a relationship marred by anger and violence’, and whether the applicant killed the deceased and, if so, his intention at the time. The probative value of the relationship evidence was not outweighed by the risk of unfair prejudice to the accused. The trial judge’s directions in relation to the jury’s use of the relationship evidence were therefore correct in law ([46]).
Charge/s: Unlawfully causing serious harm.
Appeal Type: Appeal against sentence.
Facts: The applicant and the victim had been married in a traditional Aboriginal manner for 13 years before separating in 2013. The relationship had been blighted by domestic violence, one consequence of which was the issue of a domestic violence order in 2013 protecting the victim. In 2014, the applicant entered the victim’s house without permission. The applicant kicked the victim at the bottom of her left leg, causing her compound fractures. The applicant was sentenced to six years imprisonment without a non-parole period.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed by majority (Grant CJ and Kelly J concurring, Barr J in dissent). The majority made relevant statements about domestic violence in Aboriginal communities. Grant CJ and Kelly J quoted from Amagula v White (unreported, Northern Territory Supreme Court, 7 January 1998): ‘The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased’.
Their Honours continued:
‘As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities’ (at [32]).
They note that while ‘some Aboriginal communities have an unusually high incidence of serious crimes of violence and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence. Aboriginal women and children living in those communities ‘are entitled to equality of treatment in the law’s responses to offences against them’. The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature’ (see [33]-[34]). There are also practical societal reasons to consider personal and general deterrence. As in The Queen v Haji-Noor:
‘The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it’.
Finally, Their Honours described the offending as ‘a deliberate and violent pattern of behaviour engaged in… for the purposes of intimidating and controlling the victim’ and noted that due to the patterned nature of the appellant’s violence, the spontaneity of his conduct was ‘less relevant to the assessment of… objective seriousness’ [52].
Charge: Unlawfully causing serious harm
Appeal Type: Crown appeal against sentence
Facts: The respondent and the victim were in a domestic relationship and had a young daughter. After drinking together near the remote community of Kalkarindji, the respondent and victim got in an argument. The respondent, who was intoxicated, threatened to stab the victim with a pen and subsequently stabbed him in the back with a knife.
Following an early guilty plea the respondent was sentenced to 18 months imprisonment, suspended immediately. The respondent is an Aboriginal woman who attended school until the end of year 6. She had never been employed and lived with the victim, their child and family. She received parenting payments from Centrelink. The trial judge found the respondent’s remorse was genuine. She waited for emergency services to arrive, made immediate admissions to police and subsequent formal admissions. The respondent continued to look after her young child while living with the victim, who had forgiven her. Finally, the trial judge found she had reasonable to good prospects of rehabilitation having not consumed alcohol since she committed the offence.
Issues:
Decision and Reasoning: The appeal was allowed and the respondent was resentenced.
Charges: Intentionally causing grievous bodily harm x 1; Aggravated assault x 1; Possession of cannabis x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent attacked his former girlfriend and her new partner with a baseball bat ([22]-[23]). The aggravated assault charge was in relation to the respondent attacking his former girlfriend, leaving her with bruises, and the grievous bodily harm charge was in relation to the attack on the former girlfriend’s new partner, leaving him with permanent disability ([25]). There had been a history of domestic violence in the relationship between the defendant and his former girlfriend ([9]-[18]). The sentencing judge imposed a head sentence of 8 years and 6 months’ imprisonment ([4]). In relation to the aggravated assault charge, the respondent was sentenced to 2 years and 6 months’ imprisonment ([34]).
Issues: One issue was whether the sentence for the aggravated assault charge was manifestly inadequate.
Decision and Reasoning: The Court held that the sentence for the aggravated assault charge was within range.
Justice Angel at [31] quoted the sentencing judge:
The crimes of violence of the type you have committed are prevalent and too often occur against the background of a breakdown in a domestic relationship complicated by problems of access to children. Women in these situations are particularly vulnerable. They are entitled to such protection as the law can give them. Deterring you and other men who are minded to behave like you towards their female partners is an important factor in the exercise of the sentencing discretion.
I need to add this. It is not uncommon for men in your position to harbour a belief that their former partner had been unreasonable. Nor is it uncommon for violent men in your position to harbour a belief that the former partner has brought the violence on themselves by being unreasonable. You and others like you must learn that only you are to blame for the situation in which you now find yourself.
Justice Southwood added at [183]:
Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it.
The violence perpetrated by the respondent ‘was part of a pattern of fundamentally oppressive and coercive behaviour in which the respondent deliberately engaged to dominate and control Ms Hawksworth’ [185].
Charge: Murder
Appeal type: Question of law under s 408(1) Criminal Code (NT)
Facts: The accused was charged and pleaded not guilty to murdering her husband (the deceased). For eight years leading up to this incident, the deceased had verbally, mentally and physically abused the accused and their children. The violence and abuse increased substantially in the months prior to the killing. During this time, the deceased threatened to kill the accused, beat her with his hands and a belt and sexually assaulted her. The deceased was a chronic drug abuser. On a road trip the accused noticed a rifle in the back of the car. Upon returning home, the deceased threatened to beat the accused with a belt, punched her in the head, throttled her, and made further threats of abuse. Fearing for her life, the accused retrieved the gun and shot the deceased while he was asleep. At trial, the judge ruled that the issue of self-defence should not be left to the jury. Following this, the accused’s counsel made an application that the subject of the ruling be reserved for the consideration of the Court of Criminal Appeal. Subsequently, the accused pleaded not guilty to the charge of murder, but pleaded guilty to the charge of manslaughter by reason of provocation. The indictment was amended accordingly and the jury found the accused guilty of manslaughter. No conviction was recorded; the trial judge postponed judgment until the Court of Appeal returned an answer on the reserved question of law.
Issue: Whether the trial judge was correct in ruling that self-defence was not open for consideration by the jury in the circumstances of the case.
Decision and Reasoning: In a 2:1 majority, the question was answered in the negative. The conviction was quashed and a retrial was ordered.
The defence counsel contended that as the deceased was asleep at the time he was shot, the accused could not have been acting in self-defence. The trial judge had accepted this reasoning: that because the deceased was asleep he had no ability to implement earlier threats. Mildren J of the Northern Territory Court of Criminal Appeal found that self-defence as provided under s 28(f) of the Criminal Code (NT) does not require a temporal connection between the assault and the force used to defend the assault: ‘The lack of any specific requirement for an apprehension of immediate personal violence, so far as the Code definition of assault is concerned, reinforces the view that an assault is a continuing one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat in the sense explained have not changed’ ([16]-[17]). Accordingly, it was open to the jury to find the deceased’s threat was an assault that continued while he was asleep. Having regard to the history of the domestic violence, it could also be inferred that, upon waking, the deceased intended to kill or cause grievous harm to the accused, and he had the ability to do so. It was also open for the jury to consider that the force used was not unnecessary in the circumstances. Mildren J regarded the jury’s verdict as a conviction despite no conviction being formally recorded by the trial judge. Having found the trial judge was incorrect in ruling self-defence was not open, Mildren J quashed the conviction and ordered a re-trial.
Angel J, agreeing with Mildren J, held that self-defence extends to taking action to defend oneself from threatened assault even if this action is ‘a pre-emptive strike’. It was open to the jury to find the threat of the deceased constituted an assault and this assault continued to exist at the time of the shooting. Therefore, self-defence should have been left to the jury.
In his dissenting judgement, Martin CJ found the trial judge was correct in his ruling. He considered the word ‘being’ in s 28(f) of the Criminal Code (NT) to require a contemporaneous connection between the assault and the act of self-defence. As the accused was asleep at the time of the shooting, no such connection could exist.
