CITATION:	The Queen v Irwin [2020] NTCCA 3

PARTIES:	THE QUEEN

	v

	IRWIN, Lee

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

JURISDICTION:	CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:	CA 5 of 2020 (21925929)

DELIVERED:	11 June 2020

HEARING DATE:	4 June 2020 

JUDGMENT OF:	Southwood and Kelly JJ and Mildren AJ

CATCHWORDS:

CRIME – SENTENCING APPEAL – Crown appeal – manifestly inadequate – residual discretion – appeal dismissed

CRIME – serious harm – use of a weapon – young adult

Respondent sentenced to two years and six months’ imprisonment for serious harm – 12 months’ imprisonment for aggravated assault – total sentence of three years – suspended after six months on conditions including residential rehabilitation – respondent released from prison – respondent had completed six weeks of a three month residential rehabilitation program – good interim report – 19 year old

Cumberland v The Queen [2020] HCA 21, Green v The Queen (2011) 244 CLR 462, Massie v R [2006] NTCCA 15, R v Mills [1998] 4 VR 235, R v Wilson (2011) 30 NTLR 51, applied. 

REPRESENTATION:

Counsel:
	Appellant:	M Nathan SC with R Everitt
	Respondent:	B Wild with G Chipkin

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

Judgment category classification:	B
Number of pages:	9
IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Irwin [2020] NTCCA 3
No. CA 5 of 2020 (21925929)

	BETWEEN:

	THE QUEEN
	Appellant

	AND:

	LEE IRWIN
	Respondent

CORAM:	SOUTHWOOD and KELLY JJ and MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 11 June 2020)

THE COURT
Introduction
[1]	On 27 March 2020 the respondent was sentenced for two violent offences. For count 1 on the indictment, aggravated assault causing harm, he was sentenced to 12 months’ imprisonment. For count 2, cause serious harm, he was sentenced to two years and six months’ imprisonment. The sentencing Judge ordered that six months of the sentence of imprisonment imposed for count 1 be served cumulatively on the sentence of imprisonment imposed for count 2. That gave a total sentence of three years’ imprisonment. The sentencing Judge ordered that the sentence of imprisonment be suspended after the offender had served six months in prison. The sentence was suspended on conditions including a condition that if a suitable program was available, at the direction of his probation and parole officer, the offender was to enter into a residential rehabilitation program, or any other program assessed as suitable, and was to participate fully in the program and do nothing to cause his early discharge.
[2]	The Crown has appealed against the sentence imposed for count 2 on the ground that the sentence is manifestly inadequate.
The facts of the offending
[3]	In the early hours of 6 July 2019 the respondent was at the Landmark Hotel Bar in Palmerston. He was drinking with his girlfriend, EG, and some friends. AA, the first victim, and RB, the second victim, were also at the bar.
[4]	AA went to the toilet. When he came out of the toilet he saw the respondent and walked up to him and said, “How’s it going?” He extended his hand to shake the respondent’s hand. The respondent refused to shake hands. He said, “You think you’re all tough. I’ll punch you right now.” AA replied, “No you won’t.” 
[5]	The respondent stepped towards AA and was face-to-face with him in close proximity. AA pushed the respondent away several times but the respondent kept stepping forward to stand directly in front of him. The respondent threw two punches at AA which hit him in the head. He threw a third punch which AA dodged. AA then threw punches at the respondent.
[6]	Bouncers at the hotel intervened and separated them. The respondent was escorted out of the hotel. While outside he sent a threatening Facebook message to AA, who did not reply. The respondent remained outside in close proximity to the hotel.
[7]	Bouncers kept AA downstairs for about 30 minutes to allow sufficient time for the respondent to leave the area. Eventually AA left the hotel with his friends, including RB. They walked through a car park towards a friend’s car. As they did so, the respondent ran from the side of the building towards AA and yelled at him. When he was close enough the respondent threw a number of punches at AA. None of the punches connected. AA then threw a number of punches at the respondent.
[8]	RB stepped between the respondent and AA to stop them fighting. The respondent pulled a small knife out of his pocket and stabbed RB to the upper left side of his abdomen. The respondent then ran backwards from RB and was chased by AA. They continued to throw punches at each other until bouncers from the hotel intervened. One bouncer tackled the respondent, and another bouncer restrained AA.
[9]	A friend of the respondent, JC, then sat on him. The respondent handed his knife to JC. He got off the respondent and threw the knife down a drain before the police arrived and arrested the respondent. 
[10]	RB sustained a stab wound to his left upper abdomen/lower chest which punctured his lung. He was taken by ambulance to the Royal Darwin Hospital. He was diagnosed as suffering a traumatic haemopneumothorax. There was air and blood in his chest cavity. As RB’s lung had partially collapsed a chest drain was inserted to avoid life-threatening complications. He remained in hospital for five days. The insertion of the chest drain was extremely painful. After leaving hospital it was necessary for RB to undertake physiotherapy. RB continued to experience ongoing sharp pains and numbness at the site of the medical intervention.
[11]	RB experienced severe financial difficulties. He was unemployed for seven months. As he was a casual employee at the time of the assault, RB was not entitled to sick pay or holiday pay. He was on a low income and had no savings. He went from consistently working and living independently to receiving no income. He was unable to obtain assistance from Centrelink. Since the attack RB has experienced severe anxiety and stress. He suffered from reactive depression.
The respondent’s subjective circumstances
[12]	The respondent was born on 16 March 2001. He is 19 years of age. He was 18 years of age at the time of the offending.
[13]	The respondent has six brothers. While growing up he experienced domestic violence at the hands of a brother who suffered from ADHD.
[14]	The respondent completed year 11 at Palmerston Senior College. Upon leaving school he gained employment with Jim’s Car Detailing and worked there for seven months before his arrest. His former employer described him as a caring, polite and hard-working employee.
[15]	The respondent has struggled with the misuse of alcohol and cannabis. He first began using these substances as a coping mechanism for the stress associated with his brother’s violent behaviour in the family home.
[16]	Prior to committing counts 1 and 2 on the indictment, the respondent had committed no prior offences. However, while he was on bail for these offences he committed another assault which was towards the lower end of the range of such offending. He was released on a good behaviour bond. The fact that the respondent committed a further violent offence while on bail indicates that his prospects of rehabilitation may be more difficult than otherwise might have been expected from his lack of prior convictions.
[17]	The offender has served his period of six months actual imprisonment. On 22 April 2020 he was released from prison directly into the Salvation Army Sunrise Drug and Alcohol Service to undertake full time residential rehabilitation. He is due to complete the program on 17 July 2020. His case manager reports that the respondent has engaged extremely well and has utilised his time proactively. He has complied with all random drug and alcohol tests and has always produced negative results.
[18]	The offender’s relatively young age, his prior good character, and the steps he has taken to change his ways indicate that he has good prospects of rehabilitation, his subsequent offending notwithstanding.
Objective seriousness of the offending
[19]	The offending is objectively serious. As the sentencing Judge stated:
Firstly, it involved the use of a concealed knife. Secondly, the respondent stabbed the second victim in a vulnerable part of his body, causing a haemopneumothorax. Thirdly, the respondent had taken the concealed knife to a public place, where he would be consuming alcohol. Fourthly, RB was like a good Samaritan; he was merely attempting to stop the respondent attacking AA again. Fifthly, the respondent deliberately waited outside for almost half an hour, so that he could pick another fight with AA. Sixthly, the respondent showed no understanding or remorse at the time. On the contrary, he gave the knife to a friend so he would not be caught with it. 
Finally, the respondent’s actions caused significant cost to the community, particularly in terms of the medical care that has been given to RB at the community’s expense.
[20]	To the above aspects of the offending the following may be added. The respondent’s moral culpability was high. He used the knife to stab RB in order to overcome RB’s attempt to prevent him from continuing to assault AA. The stabbing took place in a public place. RB sustained a very serious injury which was life-threatening, and he has experienced significant financial and emotional hardship. 
[21]	Such offending is prevalent in the Northern Territory. As Martin (BR) CJ stated in Massie v R:
General deterrence is also significant. Unprovoked assaults with serious consequences committed by intoxicated and aggressive young male persons are prevalent in the Northern Territory. Those who are tempted to engage in this type of conduct must realise that even if they do not intend to cause serious harm, where such harm results from their aggressive behaviour their criminal conduct will be met with severe punishment.
[22]	The objective seriousness of the offending is qualified by the following facts. The offender’s moral culpability is moderated to a small degree as a result of his youth. The stabbing of RB occurred on the spur of the moment. It was not planned. The respondent had the knife in his pocket until RB intervened. While RB’s wound was life threatening, he has made an almost complete physical recovery from his injury.
Consideration
[23]	The starting point of 40 months’ imprisonment for count 2 and the period of six months actual imprisonment were plainly unjustly disproportionate to the objective seriousness of the offending. The respondent was the aggressor from start to finish. He engaged in a sustained period of violent behaviour. He had time to cool down before again attacking AA. RB intervened to break up the fight between the respondent and AA. He did nothing to provoke the attack upon him. The respondent had the knife concealed upon his person and knives are particularly dangerous weapons. He gave the knife to a friend so it would not be found on his person. RB suffered a life threatening injury. Such offending is prevalent. In the circumstances, which include considerations of the respondent’s youth and the other qualifying factors referred to at [22] above, a starting point of at least five years imprisonment was indicated.
[24]	The main issue for consideration in this appeal is whether this Court should nonetheless exercise its residual discretion and dismiss the Crown appeal. The main countervailing factors against allowing the Crown’s appeal are: (i) the respondent has already been released from prison; (ii) he has made substantial progress towards rehabilitation; and (iii) the detrimental impact that resentencing the respondent is likely to have on his prospects of rehabilitation.
[25]	In our opinion, the Court should exercise its residual discretion to dismiss the Crown’s appeal. The respondent has been out of prison for about six weeks. The Court has received a very positive letter from the respondent’s case manager at Sunrise which demonstrates that his rehabilitation is well underway. To interrupt that process now and return the respondent to prison is likely to severely disrupt his rehabilitation. It is well known that the non-completion of a residential program is particularly detrimental to a person’s rehabilitation and if the respondent is returned to prison he is unlikely to be offered an equivalent program in prison. The respondent appears to have realistic plans for his future. He is to continue to be supervised by a probation and parole officer for two years and three months after he completes the residential rehabilitation program. Given the respondent’s relative youth rehabilitation is an important object of any sentencing disposition.
Order
[26]	Consequently, on 4 June 2020 the Court dismissed the appeal.
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