Hua v Qiao - ACT Supreme Court

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hua v Qiao
Citation:	[2024] ACTSC 121
Hearing Date:	10 April 2024
Decision Date:	24 April 2024
Before:	McWilliam J
Decision:	(1) In the exercise of the residual discretion of the Court, pursuant to s 219F(1)(a) of the Magistrates Court Act 1930 (ACT) (*MC Act), the appeal is dismissed. (2) Pursuant to ss 219F(8) and 219F(9) of the MC Act*, the appellant is to pay the respondent’s costs of and incidental to the appeal.
Catchwords:	APPEAL – CRIMINAL LAW – review appeal from ACT Magistrates Court against sentence imposing non-conviction order – assault occasioning actual bodily harm – family violence – where non-conviction order not sought by either party – whether procedural fairness was denied – whether practical injustice – whether sentence was also manifestly inadequate – whether residual discretion should be exercised – where rehabilitation had occurred and lack of utility – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT) ss 24, 48C(1)(f), 48C(2) Crimes (Sentencing) Act 2005 (ACT) ss 13, 17, 34B Family Violence Act 2016 (ACT) Preamble, s 10 Magistrates Court Act 1930 (ACT) Div 3.10.3, ss 90A, 208, 219B, 219D, 219F(1), 219F(5), 219F(8), 219F(9)
Cases Cited:	Adams v Navaratnam [2021] ACTSC 256 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 Balthazaar v The Queen [2012] ACTCA 26 Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 Canham v ACT Magistrates Court [2014] ACTSC 14; 9 ACTLR 84 CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 Cumberland v The Queen [2020] HCA 21; 379 ALR 503 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v Padreny [2024] ACTCA 4 DPP v Chen [2023] ACTSC 154 DPP v Murphy (No 2) [2023] ACTSC 227 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 HT v The Queen [2019] HCA 40; 269 CLR 403 Kioa v West (1985) 159 CLR 550 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Lutz v JK [2016] ACTSC 200; 310 FLR 392 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Pasinis v The Queen [2014] VSCA 97 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 R v AB [2022] NSWCCA 3 R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Lewis (1988) 165 CLR 12 R v Omari [2022] ACTCA 4 R v Pham [2015] HCA 39; 256 CLR 550 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v UG [2020] ACTCA 8 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Vuolo v Fall [2023] ACTCA 33 Wong v The Queen [2001] HCA 64; 207 CLR 584 Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288
Parties:	Mark Hua (Appellant) Hui Qiao (Respondent)
Representation:	Counsel A Williamson SC (Appellant) K Lee (Respondent)
	Solicitors ACT Director of Public Prosecutions (Appellant) Brightstone Legal ( Respondent)
File Number:	SCA 60 of 2023
Decision under appeal:	Magistrates Court of the ACT Before: Special Magistrate Christensen Date of Decision: 29 September 2023 Case Title: Police v Qiao File Number: 231008 Charge Number: CAN 2022/11092

McWILLIAM J:

1․ This is a review appeal brought by the informant, Mr Mark Hua (appellant), in relation to a non-conviction order made on 29 September 2023 in the Magistrates Court against the respondent, Mr Hui Qiao (respondent).

2․ The offence for which the respondent was being sentenced was a single charge (CAN 2022/11092) of aggravated assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for that offence is ordinarily 5 years’ imprisonment. However, because that offence was committed in a family violence context, the offence was aggravated: ss 48C(1)(f) and 48C(2) of the Crimes Act. That meant that the maximum penalty was 7 years’ imprisonment: s 24(2) of the Crimes Act.

Conduct giving rise to the offence

3․ The charge relates to conduct occurring on 3 October 2022 at around 9.00am. At the time, the respondent and the victim were in an intimate partner relationship as defined in s 10 of the Family Violence Act 2016 (ACT) (FV Act). The conduct set out below was agreed by the parties.

4․ The respondent was scrolling through the victim’s mobile phone. He accused her of cheating on him. The respondent and the victim began arguing and this escalated into a physical altercation.

5․ The respondent slapped the victim with an open palm strike to her face multiple times. He then punched the victim in the face (with a closed fist) multiple times, connecting with her nose, mouth and head. The respondent’s continued slapping and punching actions caused the victim’s right cheek, right eye, left ear and nose to bruise and her bottom lip to cut and swell.

6․ The respondent then pinned the victim down on her back, sitting on top of her on the bed, at some point exerting force on her neck such that she found it difficult to breathe and talk.

7․ He continued to punch the victim with a closed fist while berating her about allegedly cheating on him with another male. This was followed a short time later by the respondent sitting on top of the victim while she was on her stomach and punching her in the back of the head multiple times.

8․ The respondent then took a pair of scissors to repeatedly cut large chunks of hair from her head with the victim attempting to escape by scratching at his arms and legs.

9․ Police later attended the residence and observed the victim’s facial injuries, patchy head of short hair and blood stains and hair spread across the bedroom.

The sentence under challenge

10․ The respondent was sentenced to a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), subject to a good behaviour order for a period of 18 months.

Statutory basis on which the appeal is brought

11․ The appeal is brought by way of a “review appeal” pursuant to Part 3.10 (in particular, Division 3.10.3) of the Magistrates Court Act 1930 (ACT) (MC Act). The right of review by this Court is created by s 219B of the MC Act. Given the grounds, the appeal could equally have been brought under s 208 of the MC Act.

Grounds for review

12․ Under s 219D of the MC Act, the Supreme Court may review a decision of the Magistrates Court on any one or more of the following grounds:

219D Grounds for review

The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds:

(a) that there was a prima facie case of error or mistake on the part of the Magistrates Court;

(b) that the Magistrates Court did not have jurisdiction or authority to make the decision;

(d) for a decision mentioned in section 219B (1) (d) or (e)—that, in the circumstances of the case, the decision should not have been made;

(e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error.

13․ The ground relied by the appellant here was that emphasised above. For completeness, the present sentence is a decision mentioned in s 219B(1)(f), being a decision to accept the respondent’s plea of guilt under s 90A of the MC Act.

Complaints on review appeal

14․ There are two grounds of appeal:

(a) Denial of procedural fairness: in that the court below made a non-conviction order without alerting the parties to the fact that such an outcome was being considered and without giving the appellant an opportunity to be heard on that possibility (Ground 1); and

(b) Manifest inadequacy: the sentence imposed was manifestly inadequate having regard to the objective seriousness of the offence (Ground 2).

Principles applicable to a review appeal

15․ The principles which apply to review appeals are set out in Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 (Harlovich) at [45]-[53].

16․ The primary purpose of an appeal against sentence by the prosecution (whether by review appeal or by the separate appeal path provided by s 208 of the MC Act) is directed to laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]; Cumberland v The Queen [2020] HCA 21; 379 ALR 503 at [6]. Even if error is established, the appellate court has an overriding discretion which may lead it to decline to intervene, which will be discussed separately below.

17․ Where the prosecution succeeds in establishing a specific error, “it is not appropriate to impose a judicially created additional requirement that the sentence be manifestly inadequate in order for the court to interfere with the sentence”: R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [84]; Director of Public Prosecutions v Padreny [2024] ACTCA 4 at [60].

Ground 1: Was procedural fairness denied?

18․ The appellant’s complaint was that only the sentencing magistrate, not the parties, proceeded on the basis that a non-conviction order was a sentencing option open in the circumstances of this case. The sentencing magistrate did not give any indication that this was being contemplated and did not provide the parties the opportunity to make submissions on the appropriateness of such an order.

19․ There is no dispute about the exercise of the sentencing power being conditioned on the observance of procedural fairness. It is a fundamental principle of the justice system that all courts, superior or inferior are obliged to accord procedural fairness to parties to a proceeding: HT v The Queen [2019] HCA 40; 269 CLR 403 at [17].

20․ What does it mean to say that a court must accord “procedural” fairness to parties, or what constitutes a failure to comply with the obligation? The following summary suffices to provide a general overview of the principles, derived from numerous High Court authorities, that apply when considering such a complaint:

(a) The concern of the court reviewing a complaint about procedural fairness is with procedures rather than with outcomes, and processes rather than conclusions: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [55]; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59].

(b) What is required is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL)at [25].

(c) Procedural fairness must be moulded to the particular circumstances of the case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [25]; Kioa v West (1985) 159 CLR 550 at 611-612 per Brennan J, 585 per Mason J.

(d) In assessing what the content of procedural fairness required and whether the obligation was met in a particular case, the court has regard to the legal framework within which the decision is to be made: WZARH at [30]; SZBEL at [26].

(e) If there was a breach of any obligation to afford procedural fairness the Court must consider the consequences of that breach. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice:Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. This may sound in considerations of materiality, being a realistic possibility that the decision could have been different: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45].

The content of the obligation on the sentencing court

21․ The appellant drew attention to Lutz v JK [2016] ACTSC 200; 310 FLR 392 (Lutz), a case in which the parties had made submissions in relation to a good behaviour order, but the sentencing magistrate did not, at any point, indicate that she was contemplating a non-conviction order or a dismissal without any good behaviour order, which was the sentence ultimately imposed. Murrell CJ stated at [23]-[25] (emphasis added):

23.   A sentencing court should afford the parties an opportunity to address on penalty. This does not mean that the court must signal its intention in relation to sentence, but it does mean that, if the court is contemplating a sentencing outcome that has not been raised by the parties and is not for other reasons obviously “on the table”, then the parties should be offered the opportunity to address that matter. In this case, the prosecution was not offered an opportunity to make submissions about the outcome.
24.   … The respondent’s counsel had addressed the Chief Magistrate on the basis that a good behaviour order (inferentially, a good behaviour order under s 13 of the Sentencing Act) would be appropriate. He had not suggested that a more lenient outcome may be appropriate. In those circumstances, a s 17 dismissal was not obviously “on the table”.
25.   Consequently, the failure to invite the appellant to make submissions about the appropriateness of a s 17 dismissal amounted to a denial of procedural fairness.

Was there a fair hearing in the present case?

22․ Applying those principles, the context of what occurred during the hearing is important for the resolution of this case. The various sentencing alternatives will always be known possibilities and during a hearing, there are some alternatives that may receive a greater focus than others. Others may not be discussed at all, either because they are impliedly accepted by the parties not to be appropriate or because they are unavailable due to previous choices made as to whether to invoke statutory procedures that are necessary to enliven them (such as the ordering of an intensive correction assessment or eligibility assessment for a drug and alcohol treatment order).

The course of the hearing before the sentencing magistrate

23․ During the course of the hearing before the sentencing magistrate, at no point did either the prosecution or counsel for the offender raise that a non-conviction order was an alternative that was considered appropriate.

24․ The “central issue” traversed by the parties was whether the threshold under s 10(2) of the Sentencing Act had been crossed such that an appropriate sentence would involve a sentence of full-time imprisonment. Counsel for the offender submitted as follows (emphasis added):

…
But your Honour he has had almost 12 months now to reflect on that. He has pleaded guilty to this offence. I accept the plea was entered at a late stage in the proceedings, but I would submit that it still carries significant utilitarian value because it avoided not only a contested hearing but also importantly it prevented the need for the victim to have to attend court to give evidence. But all in all, your Honour, in my submission it is a matter where, notwithstanding the relatively high objective seriousness and in my submission, it certainly falls somewhere in the – at least the middle of the range of objective seriousness for an assault occasioning actual bodily harm.
That owing to Mr Qiao’s age, lack of prior history, his engagement with support services, his remorse that as a balancing act, there are alternatives to a sentence of imprisonment that would be open be open to your Honour including a good behaviour order with supervision or a good behaviour order with community service as a component of it. But if your Honour was of the view that the matter crosses the threshold for a sentence of imprisonment, in my submission that Mr Qiao is not at a point at which nothing other than fulltime imprisonment needs to be imposed.

25․ It is apparent from the words emphasised above that this was acknowledged as an offence of serious gravity, with the submission as highlighted above directed to a conviction with a good behaviour order under s 13 of the Sentencing Act being the appropriate sentencing course. That must have been the submission because a community service condition cannot attach to a non-conviction order: s 87 of the Sentencing Act. As will be seen from the magistrate’s reasons (set out below at [30]), that was how the magistrate understood the submission and it was fairly accepted at the hearing on appeal that the respondent did not seek a non-conviction order.

26․ Counsel for the respondent in the court below then went on to specifically address the positive subjective features (emphasis added):

Mr Qiao is someone who is a productive member of the community. He is well regarded and in my submission, highly unlikely to reoffend and your Honour would be comforted in imposing a community based sentence that does not see Mr Qiao spend time in fulltime custody. Your Honour, there are obviously some references in his letters to possible ramifications or consequences for Mr Qiao as a result of this matter and that is almost an inevitability that having this sort of matter on his record will affect or could affect his ability to obtain permanent residency in terms of passing the character tests associated with that.
In my submission that is a consequence he will simply have to contend with so far as being able to persuade the authorities that he is a suitable candidate for permanent residency. And I wouldn’t ask your Honour to read those letters as inviting your Honour to extend to Mr Qiao sort of extreme leniency but in my submissions it is still a relevant factor in the ultimate disposition.

27․ Again, this passage specifically addresses the respondent having any conviction at all “on his record”. The two alternatives that would produce no conviction on a person’s record are those arising under s 17 of the Sentencing Act,either dismissing the charge or making a good behaviour order without entering a conviction.

28․ As can be seen, it was submitted by the respondent that “that is a consequence he will simply have to contend with”. The court below was not invited to read the letters as inviting extreme leniency. On the review appeal, counsel for the respondent argued that “extreme leniency” may have been a reference only to the dismissal of the charge. However, when viewed in the context of the submission being made, it is clear that the legal representative below was submitting on whether to impose any conviction, not whether to dismiss the charge. The sentencing magistrate was being asked by the representative to take into account the fact of a conviction as a factor that would weigh very heavily on someone in the respondent’s circumstances.

29․ Certainly, the appellant did not consider that a non-conviction order was being sought or was otherwise “on the table”, as the appellant’s primary submission was that a sentence of full-time imprisonment was the only appropriate course:

… [I] agree the central issue, your Honour is that put by my friend, whether this matter is a matter which crosses the section 10 threshold or not. Turning to that issue, the primary submission for the prosecution is simply that based on the objective seriousness of the incident, it is a matter which does cross the section 10 threshold.
If I can deal with [objective] seriousness, your Honour would’ve noted, of course from the facts of the assault, itself, is a sustained and serious course of conduct. It involved several open palm strikes to the victim’s face and then multiple closed [fist] punches to the victim’s nose, mouth and head were all struck causing bruising to the right cheeks, right eye, left ear and nose.
…
… Beyond the physical injuries, your Honour would note that hair cutting was a particularly disturbing demonstration of this anger.
As your Honour would no doubt be aware, her Honour the Chief Magistrate said in [Maher v Morrison][2020] ACTMC 26 at [41]:

The intentional degradation, particular of forced hair removal, a technique historically used to degrade women, evidences a serious common assault.

A further aggravating factor, of course, is that this was an offence which occurred in the home, in a bedroom and on a bed. A place where the victim was entitled to feel safe. …
…
Noting those factors, your Honour, the ultimate submission, as I indicated at the outset of my submission, is that the section 10 threshold is crossed. It is certainly, noting the lack of history, entirely a matter for your Honour as to how that sentence is to be served but in the prosecution’s respectful submission, that sentence is one which would give effect to the considerations of deterrence, denunciation and recognition of harm done to the victim. …

The sentencing magistrate’s reasons

30․ The critical part of the reasons in the court below were as follows (emphasis added):

… The real question for this court is whether the court is satisfied the section 10 threshold is crossed so to speak.
This provides that the court may, by order, sentence the offender to imprisonment for all or part of the term of sentence if satisfied the court, having considered possible alternatives that no other penalty is appropriate. Considering the objective circumstances on their own, it might be readily concluded – sorry, the objective seriousness on its own might readily lead to a conclusion that there is no other penalty appropriate but imprisonment.
But I conclude that there are compelling subjective circumstances here such that there are possible alternatives that are appropriate. And in reaching that conclusion I have taken into account that this offence occurred in October of last year suggestive of a level of insight and rehabilitation having been achieved. It is submitted on the defendant’s behalf that if imprisonment is not found to be the only sentencing option available but a section 13 good behaviour order would be appropriate.
I have given careful consideration to that and whilst I accept it is perhaps unusual for the court to reach this conclusion it seems to me that a good behaviour order is the appropriate order taking into account all relevant matters in this offending and subjective considerations. But that it is not necessary that there be a conviction attached to that good behaviour order. I acknowledge the submissions made in respect to that and acknowledge that the consequences of the conviction are not to be considered a compelling reason why a conviction should not be recorded.
However, I have regard to what was said by her Honour McWilliam J in DPP v Chen [2023] ACTSC 154 which includes, amongst other things at paragraph 71 that there are occasions when:

… a non-conviction order has been made for serious offences.

And provides that:

What it is intended to explain is how the Court recognises that the people who are coming before it require individualised justice for their particular set of circumstances, and that people are not robots of perfection who never make a mistake.

And so whilst I acknowledge that family violence must be denounced and that the community takes seriously such conduct as does the court, in circumstances where a good behaviour order is the appropriate order of the court to my mind it becomes a consideration whether a conviction ought attach to that good behaviour order. Section 17 sets out a number of matters that must be considered and I accept that Supreme Court authority provides there must be cogent and compelling circumstances to determine that a section 17 order is appropriate and that it is not a typical order of the court.
I accept that courts typically will impose a conviction following an acceptance of guilt or a finding of guilt in respect to, in particular, serious offending. However, under section 17 the court can have regard to the character and antecedents and the mental condition of an offender. And, in addition under subsection (4) ‘… the court may consider anything else the court considers relevant’.
So whilst not detracting from the seriousness of the offence to my mind the appropriate sentence order is one of a section 17 with a good behaviour order for a period of 18 months. That will be with core conditions only.

The lack of an opportunity to be heard on the issues

31․ At no point before those reasons were given was there any indication that the magistrate was considering a more lenient sentence than that for which the offender had sought himself.

32․ Counsel for the respondent argued that there was no practical deprivation of the opportunity to be heard, because it was implicit in the appellant’s submissions on the s 10 of the Sentencing Act threshold that a non-conviction order was opposed.

33․ However, that submission overlooks the important principle that what is required to afford a fair hearing is an opportunity to be heard on the issues for determination. What constitutes an issue is critically shaped by what unfolds at the hearing.

34․ Here, the prosecution’s submissions were made in the context of what the respondent had actually submitted. As seen above, not only did the respondent not make the submission that a non-conviction order may be an appropriate alternative, the respondent expressly stated that he was not inviting the court below to impose a lenient sentence, and that having the matter on his record was a consequence he would have to live with.

35․ Those circumstances informed the content of procedural fairness during the hearing. While it is plainly open to the sentencing magistrate to contemplate a sentencing outcome that has not been raised by the parties, where such an outcome is being considered and is not obviously “on the table”, then consistently with Lutz at [23] (extracted at [21] above), the sentencing magistrate was required to offer the parties the opportunity to address that matter. Because a non-conviction order is an exceptional outcome, it was not a sentence that was obviously otherwise within the contemplation of the Court.

36․ As submitted by the appellant, the prosecution is as much entitled to natural justice as any other litigant: R v Lewis (1988) 165 CLR 12 at 17; Canham v ACT Magistrates Court [2014] ACTSC 14; 9 ACTLR 84 at [57]. I accept the prosecution’s submission on the review appeal that some indication should have been given to alert the prosecution to the fact that a non-conviction order was being actively considered.

37․ It cannot be said that the appellant suffered no practical injustice. As will be seen in respect of the second ground of appeal, consistent with the prosecution’s duty to raise the relevant principles to be applied when considering such an outcome (as to which see Adams v Navaratnam [2021] ACTSC 256 at [12], [15] and the authorities there-cited) there were submissions that could have been made to the court to assist it in avoiding appealable error.

38․ Accordingly, a denial of procedural fairness has been established.

Ground 2: Was the sentence imposed manifestly inadequate?

39․ As I have accepted that there was a denial of procedural fairness, it is unnecessary to separately consider whether there was manifest inadequacy (as discussed above at [17]). However, this ground has been addressed because of the point of principle involved overlapping with the demonstration of practical injustice referred to in Ground 1, as well as the fact that it informs the reasoning process on resentence, discussed below.

The appellant’s complaint

40․ The appellant’s complaint was that the disposal of the matter without recording a conviction involved the imposition of a sentence which demonstrably failed to recognise, and was disproportionate to, the objective seriousness of the offending.

41․ The appellant’s detailed submissions incorporated a point of principle, as a focal point for the assessment on review, in arguing that the outcome in the court below failed to give due effect to the principles relating to family violence offending.

The Court’s task in reviewing for manifest inadequacy

42․ The principles which guide this Court in assessing whether a sentence is manifestly inadequate are well-established. It is not appropriate for the appellate court to intervene simply because it may have a different view as to the most appropriate sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]. Neither is it appropriate simply because the sentence is markedly different from sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [59]. The appellant must demonstrate that there was a misapplication of principle by the sentencing judge, even if the manner in which the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]-[59] and [75]-[76].

43․ In Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, Kiefel CJ, Bell and Keane JJ observed at [49]:

In Elias v The Queen, French CJ, Hayne, Kiefel, Bell and Keane JJ said: “[t]he administration of the criminal law involves individualised justice”. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. It is also the case that, as Gleeson CJ said in Wong v The Queen: “[t]he administration of criminal justice works as a system ... It should be systematically fair, and that involves, amongst other things, reasonable consistency.” As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen: “[t]he consistency that is sought is consistency in the application of the relevant legal principles.”

44․ Statements to the same effect were also made in R v Pham [2015] HCA 39; 256 CLR 550 at [28] and R v Omari [2022] ACTCA 4 at [56]-[57].

Principles applying to the making of a non-conviction order

45․ The appellant helpfully collected the applicable principles, which are now well-established. The respondent did not disagree with the submissions on this point. I have adopted them here as I consider they represent a fair summary in a succinct, and therefore helpful, manner:

(a) A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The purpose in recording a conviction has been described as being “a formal and solemn act” to mark the disapproval of the offender’s wrongdoing by the court and society: see R v AB [2022] NSWCCA 3 at [39].

(b) The imposition of a non-conviction order is an “exceptional outcome”. However, the demonstration of exceptional circumstances is not a pre-condition to the making of such an order: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 (Proud) at [42], [46]; Vuolo v Fall [2023] ACTCA 33 (Vuolo)at [37].

(c) Cogent or compelling circumstances are required before a court may be persuaded to deviate from the ordinary consequence of criminal offending: Vuolo at [39].

(d) The discretion to impose a non-conviction order is not a “first offenders” provision. The lack of prior convictions will not of itself provide a sufficient basis to justify a non-conviction order: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 (Bennett)at [49]; DPP v Chen [2023] ACTSC 154 at [61] (Chen).

(e) There is no requirement that an offence be “trivial” before a non-conviction order can be imposed. There is no rule that certain kinds of offences, by their very nature, are excluded from a non-conviction order being made: Chen at [66]-[67].

46․ The appellant also drew attention to this observation by Burns J in Bennett at [49] (emphasis added):

As the appellant submitted, the ordinary consequence of proof of criminal offending is the recording of a conviction. The imposition of a non-conviction or order is therefore a disposition which falls outside of the ordinary. There must be good reason for adopting such a course. The section does not require that exceptional circumstances be demonstrated before a non-conviction order may be imposed, but cogent or compelling circumstances should be demonstrated before a court is persuaded to deviate from the ordinary consequence of criminal offending. The section is not a “first offenders” provision, so that a lack of prior convictions would not, of itself, ordinarily satisfy the requirement to demonstrate compelling circumstances justifying a non-conviction order. Virtually every offender who comes to be sentenced by a court will put material before the court concerning their character, antecedents, age, health, or mental condition. Many will also suggest that the offence was committed under extenuating circumstances. When properly analysed, in most cases the material will not take the offence or the offender outside the ordinary.

The mandatory considerations for family violence offences

47․ It is necessary to address s 34B of the Sentencing Act, which came into force on 12 August 2021. The conduct which is the subject of the offence occurred on 3 October 2022. The provision therefore applied to the offence for which the respondent was sentenced in this proceeding.

48․ The section is in the following terms (emphasis added):

34B Sentencing—family violence offences

(1) In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:

(a) the matters mentioned in the preamble to the Family Violence Act 2016;

(b) whether the offending occurred at the home of the victim, offender or another person;

(d) if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences.

(2) A court must not reduce the severity of a sentence it would otherwise have imposed because—

(a) the offence is a family violence offence; or

(b) a family violence order under the Family Violence Act 2016 or a protection order under the Domestic Violence and Protection Orders Act 2008 (repealed) is in force against the offender in relation to the family violence offence.

…

49․ The preamble to the Family Violence Act 2016 (ACT) (Preamble) is as follows (emphasis added):

Preamble

In enacting this Act, the Legislative Assembly recognises the following principles:
(a) family violence is unacceptable in any form;
(b) freedom from family violence is a human right;
(c) the justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 and international law;
(d) family violence is best addressed through a coordinated legal and social response of assistance to victims and the prevention of violence by such things as promoting the accountability of perpetrators of family violence and the appropriate intervention by the police and the courts.
The Legislative Assembly also recognises the following features of family violence:

(a) anyone can be a victim of family violence:it occurs in all areas of society, regardless of location, socioeconomic and health status, age, culture, gender, sexual identity, ability, ethnicity or religion;

(b) family violence is predominantly committed by men against women and children;

(c) family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years; and

(d) children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their current and future physical, psychological and emotional wellbeing.

50․ Even absent the mandatory considerations under the Sentencing Act, the case law is replete with the courts having a duty to ensure that there is adequate punishment for violent attacks in domestic settings to ensure there is a strong element of general deterrence and express the community’s disapproval of the offending. One example may be taken from Pasinis v The Queen [2014] VSCA 97 at [57]:

General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

51․ The appellant has also drawn attention to other examples of similar comments in cases such as Munda v Western Australia [2013] HCA 38; 249 CLR 600 (Munda)at [54]-[55]; R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41] and R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47].

52․ Munda was cited in Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 (Wyper), where the Court of Appeal stated at [97]-[98]:

97. We accept that perpetrators of family violence should expect that their behaviour will result in “rigorous and demanding consequences” designed to protect partners, family members and the wider community: Cherry v The Queen [2017] NSWCCA 150 at [78] (Cherry). Sentences must vindicate victims, reflect the community’s disapproval of domestic violence and provide such protection as is capable of being provided to vulnerable victims: Munda v Western Australia (2013) 249 CLR 600 at [54]. In sentencing family violence offenders, general and specific deterrence are important sentencing purposes, together with the powerful denunciation of such conduct, the need for community protection, and the recognition of harm done to the victim and to the community by family violence: Cherry at [76], quoting R v Hamid (2006) 164 A Crim R 179 at [86].
98. However, the principle of individualised justice requires a sentencing court to craft a sentence that is appropriate to the particular offence and the particular offender. Generalisations can be unhelpful.

53․ Wyper was a case arising before the mandatory considerations of the Sentencing Act with respect to family violence were introduced. More recently in this jurisdiction, in DPP v Murphy (No 2) [2023] ACTSC 227, Mossop J stated at [103]:

... More practically useful is the understanding that current sentencing practice recognises the significance of family violence offending, usually perpetrated by men upon women, and the social significance of deterring that conduct and protecting the community from such conduct.

The operation of the principles in the present case

54․ It is clear from the reasons of the sentencing magistrate set out above that she took the family violence context into account. The offence itself was also the aggravated form by reason of that context. However, the Sentencing Act actually requires the sentencing judge to do more than advert to the family violence context and principles of general denunciation and deterrence. As seen from the words emphasised in s 34B of the Sentencing Act above, the legislature makes it mandatory for the Court to consider (that is, intellectually engage with) the matters mentioned in the Preamble, none of which were referred to by the sentencing magistrate below.

55․ The lack of express reference to s 34B of the Sentencing Act or the mandatory considerations of the FV Act would not have been an error of itself if the Court could infer from the reasons that the substance of each of the mandatorily relevant considerations had otherwise been taken into account. However, that is not the case here.

56․ The potential tension between the provisions of the FV Act and the provisions of ss 17(3) and (4) of the Sentencing Act must be acknowledged. Those sections provide:

17 Non-conviction orders—general

…

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(b) the seriousness of the offence;

(4) The court may also consider anything else the court considers relevant.

…

57․ To be fair to the sentencing magistrate, the matters that her Honour considered were thus also mandatory considerations, directly operating on the decision whether to make a non-conviction order. Along with the mental condition of the respondent, the respondent’s lack of antecedents and good character were the matters that the sentencing magistrate decided constituted cogent and compelling circumstances warranting a non-conviction order.

58․ However, the Preamble makes it clear that family violence occurs in all areas of society, regardless of status. The words that I have emphasised in paragraphs 2(a) and 2(b) of the Preamble are those that I consider to be matters at the heart of the error that occurred in the reasoning process of the court below, leading to manifest inadequacy. The legislature has directed sentencing judges to expressly consider the fact that this type of offending crosses all societal boundaries and is unacceptable in whatever form it takes.

59․ That means that subjective features which might have been viewed as compelling leniency in other cases may not carry the same force when the offence under consideration is one involving family violence. That is not to be taken as suggesting that a non-conviction order will never be available for a family violence offence; clearly that would be contrary to the principle of individualised justice. But the statutory mandate means that those matters will inform what might otherwise be considered to be cogent or compelling circumstances for a non-conviction order under the more general considerations applying across all offences in s 17(3) of the Sentencing Act.

60․ The sentencing magistrate referred to Chen at [71] as an example of where individualised justice for a person otherwise of good character and with no antecedents was the beneficiary of the exceptional outcome of a non-conviction order. That case was not a matter which involved family violence, nor physical violence of any kind. It involved a threat without any evidence of an ability to immediately carry out the threat. The objective seriousness of the offence was low and among other matters, it was considered that general deterrence could be achieved by other means, including the good behaviour order itself (Chen at [72]) and that the matter was also referred for restorative justice.

61․ By contrast, the objective seriousness of the respondent’s conduct here involved actual and repeated violence. Although it occurred on one day, and in that sense may be described as brief, it was not a single isolated occurrence. Moreover, it was of high intensity, it caused injury to the victim, occurred in the couple’s bedroom (being a place where the victim was both vulnerable and entitled to feel safe), and involved a degree of intentional degradation in the manner in which the respondent cut off the victim’s hair. I was dissuaded during the hearing from going further by way of any other inference about whether the offender’s intention was directed to reducing his girlfriend’s attractiveness to other men. It suffices to say that this was objectively a very serious example of a serious offence.

62․ It is also another example of a jealous man losing control when he formed the view that his intimate partner was attracted to someone else (or cheated on him) and exacting his own punishment upon his female victim by inflicting quite significant physical and degrading violence against her. Without those mandatory considerations to which I have referred featuring in the active intellectual process, there appears to have been disproportionate weight given to the fact that the offender had no criminal history and was otherwise of good character.

63․ The magistrate did refer to the consequences of the conviction as a matter that was “not to be considered a compelling reason why a conviction should not be recorded”. That was an implied acceptance of the principle that hardship to an offender will not justify the imposition of a non-conviction order unless there is evidence that the consequences fall outside the range of consequences that will ordinarily be expected: Bennett at [54]. As the magistrate accepted, that was not the case here.

64․ Taken as a whole then, the offender’s subjective circumstances were not so compelling as to warrant the exceptional outcome here. General deterrence for this type of offending was not given proper effect and the lack of proportionality of the sentence imposed to the gravity of the offence, taking into account both objective and subjective circumstances and the family violence context, is such that the misapplication of the sentencing principles discussed above has been established. I therefore find that the sentence imposed was manifestly inadequate.

Should the residual discretion be exercised?

65․ The Court has the power to decline to intervene, pursuant to ss 219F(1) and 219F(5) of the MC Act. In Harlovich, the Full Court explained the residual discretion on an appeal against sentence (including in the particular context of review appeals) at [2]:

In the context of a prosecution appeal against sentence, the ‘residual discretion’ refers to the discretion of an appellate court to refuse to intervene and re-sentence an offender, notwithstanding that the prosecution has demonstrated error in the sentence imposed at first instance: Green v The Queen [2011] HCA 49; 244 CLR 462 at 465-6 [1] and 471 [24] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at 365-6 [54] (Kiefel, Bell and Keane JJ). For example, even where error is established in the original sentence imposed, an appellate court may decline to allow a prosecution appeal and resentence an offender where:
(i)     The prosecution contributed to the error in the court below, such as where the prosecution resiles on appeal from a concession made at first instance (including where the prosecution consented to a non-custodial outcome at first instance, yet submits on appeal that a sentence of imprisonment should have been imposed), or where the prosecution otherwise changes its case on appeal, or where the prosecution did not assist the court below in avoiding error;
(ii)    The allowing of a prosecution appeal would occasion an unfair additional burden upon the offender, such as where the allowing of the prosecution appeal would undermine an offender’s progress towards rehabilitation, or where the offender has been released (either unconditionally or on parole), or such release is imminent;
(iii)   There has been a delay in the commencement, hearing or determination of the prosecution appeal; and
(iv)   The prosecution’s selective invocation of appellate jurisdiction could cause disparity between co-offenders.

66․ The examples there given are not exhaustive. The appellant (prosecution) bears the onus of negating any reason why the appellate court should exercise its discretion to decline to intervene: CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346, noting that such case involved a different statutory exercise of discretion than the present statute but has been applied in Harlovich at [5] and R v UG [2020] ACTCA 8 (UG) at [86].

67․ In UG at [93], the Court of Appeal referred to Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188, where the following was observed at [24]:

Absent a special circumstance of the kind which engages the residual discretion, there is no principled basis for declining to resentence once a sentence has been found to be manifestly inadequate. It would, indeed, be contrary to the fundamental principle of equality before the law for the Court in a case like the present to refrain from resentencing, unless the same course were to be taken in all other like cases.

68․ The respondent in the present case has put forward updated evidence which outlined his changed circumstances since the initial sentence was imposed, and which persuasively argued for the exercise of the discretion. He has undertaken rehabilitative steps, including commencing the Next Steps program and psychological counselling. More significantly, following the conclusion of the sentence proceeding in the court below, and before being served with any notice of appeal, the respondent booked a one-way ticket to China. He now resides there, living and working. Before he left the country, he communicated his intentions to those responsible for administering the good behaviour bond that had been imposed. There was no difficulty raised and nothing to hold him in Australia. He did nothing wrong in relocating his life to a different country, where his mother resides.

69․ Those changed circumstances do have a consequence for the exercise of the Court’s discretion on appeal. The appellant accepted that because of the respondent’s relocation to China, the Court now faces difficulties in imposing any sentence of imprisonment or even a good behaviour order upon a conviction being entered. The practical reality is that he is now beyond the jurisdiction of the Court, and it was further acknowledged that this is unlikely to be a case where the resource-intensive process of extradition is justified.

70․ In circumstances where the appellant has succeeded in ventilating the matters of principle which were of concern to the prosecution for the benefit of future decisions, the respondent’s rehabilitation, his change of position with no lack of good faith, and the consequent lack of utility in resentencing lead me to conclude that this is a case where the exercise of the residual discretion is justified. Accordingly, error having been established, the Court declines to intervene, pursuant to the broader avenue for the application of the discretion provided by s 219F(1) of the MC Act.

Costs

71․ Under ss 219F(8) and 219F(9) of the MC Act, on a review appeal, the Supreme Court must order that the costs of and incidental to the appeal be paid by the appellant, which applies even where an appeal is to be dismissed. Such an order will accordingly be made here.

Orders

72․ For the above reasons, the Court notes that error has been established and makes the following orders:

(1) In the exercise of the residual discretion of the Court, pursuant to s 219F(1)(a) of the Magistrates Court Act 1930 (ACT) (MC Act), the appeal is dismissed.

(2) Pursuant to ss 219F(8) and 219F(9) of the MC Act, the appellant is to pay the respondent’s costs of and incidental to the appeal.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

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