Campbell v Tudor-Stack [2003] NTSC 19

Fry v Bassett (1986) 44 SASR 90 at 92, applied.

Campbell v Tudor-Stack [2003] NTSC 19

[1] Appeal against sentence imposed in the Court of Summary Jurisdiction at Darwin on 26 September 2002. On that occasion the appellant pleaded guilty to two charges relating to an incident that occurred on 24 August of that year.

[2] The first charge was that he did without lawful excuse, possess an offensive weapon, namely, a scythe, contrary to s 8 of the Weapons Control Act 2001 (NT).

(a) made or adapted to cause damage to property or to cause injury or fear of injury to a person; or

(b) by which the person having it intends to cause damage to property or to cause injury or fear of injury to a person, but does not include a prohibited weapon, controlled weapon or body armour" (s 3).

[4] The second charge was that he did without lawful excuse, possess a controlled weapon, namely a wooden handled knife, in a public place contrary to s 7 of the Weapons Control Act.

"(a) a knife, other than a knife that is a prohibited weapon; or

(c) an article that is prescribed by regulation to be a controlled weapon."

[6] Having considered and discarded a term of imprisonment as an option, his Worship convicted the appellant on each count and imposed an aggregate fine of $2,500, saying that in assessing that penalty he paid regard to the time spent in custody.

[7] The maximum penalty in each case is 200 penalty units ($22,000) or imprisonment for 12 months. By his plea the appellant indicated that he did not suggest that he had any "lawful excuse" for possession of either article as defined. In particular, it is to be noted that a lawful excuse does not include possession of the article for the purpose of self-defence.

[8] The sole element making up the act of the offence is the possession of the article. The contemporary definition does not reflect the common law definition of "an offensive weapon" which connoted an article used for offence in the nature of an attack (see the reference by Forster J in Haggarty v Palmer (1974) 5 ALR 53 at 54). The possession or use of an offensive weapon is generally regarded as a circumstance adding to the gravity of particular offences such as assault, and s 188 of the Criminal Code makes special reference to circumstances where a person assaulted is threatened with an offensive weapon, which amounts to aggravating circumstances which increases the maximum penalty which might be imposed beyond that for assault simpliciter.

[9] The courts of the Territory, and elsewhere, have denounced the use of weapons in strongest terms and in the Territory, at least, knives and other cutting instruments of all shapes and sizes have featured largely in cases involving serious injury and death. Those events quite often occur in circumstances that escalate from a relatively minor skirmish to serious wounding or fatal results. It is apparent that the Parliament has sought to meet the danger to the community which can arise as a result of the simple possession of various types of weapons, described in the Weapons Control Act, without lawful excuse.

[10] The Crown facts, admitted by the appellant, were that at about twenty past three in the afternoon he was armed with a scythe, with a half-moon shaped blade about 50 centimetres in length, with a serrated edge blade, and a wooden handle. He was in a public car park in Nightcliff. When approached by police at a distance of about ten metres he had the scythe in his right hand at his side, and when instructed by the police to put it on the ground, he continued to approach police and raised it to shoulder height. As he was doing so the police continued to instruct him to place the weapon on the ground, and when he was within two or three metres of the police, he threw the scythe away. At that stage he was instructed to get onto the ground, he did not comply and he was placed on the ground by the police. He was then searched and a wooden handled knife with a metal blade about ten centimetres long was found in the back left hand side of his shorts. He was arrested for the offences and when asked his reason for carrying the weapons, he replied "It was for protection from them Groote Eylandt mob".

[11] The circumstances of the offender, as put in mitigation, were that two weeks prior to this incident there had been acts of violence demonstrated towards the appellant by men from Groote Eylandt arising out of his relationship with a woman other than his promised wife. The men came to the appellant's house, smashed some windows, they had broken bottles and iron bars, and ripped a fly screen from the windows causing the appellant to become very frightened, but he managed to run away. On the day of the offending he was in Darwin and saw the same men, who recognised him, called out for others to join them and cried out that they were going to get him, or words to that effect. The appellant panicked and ran into the place where he was staying to get whatever he could to defend himself, and whilst doing so, had another person telephone the police who arrived very soon thereafter. The mob from Groote Eylandt had departed by that time and the appellant was left standing in the car park in possession of the two weapons.

[12] In response to his Worship, counsel for the appellant said that the raising of the scythe by his client was not by way of threat, but by way of indicating that although he had arranged to have the police informed so that they could come to protect him, he was the one about to be arrested. In the course of discussion with counsel for the appellant, his Worship indicated that he thought the appellant's failure to get down on the ground when first requested by the police was a form of resisting arrest. Counsel for the appellant informed his Worship that the people from Groote Eylandt returned during the period the appellant was in custody, attacked some members of the appellant's family using bars and rocks, and broke his brother in law's jaw. His Worship responded by expressing his concern at what may have happened had the police action in relation to the appellant not being taken.

[13] As to the appellant's personal circumstances, he was said to be 30 years of age with four children, living with his de facto partner and that he spent most of his life living in Nightcliff. He had had casual employment and no convictions for almost five years. His Worship was also asked to take into account that he had spent time in custody, and it was suggested that he be dealt with by way of a fine if he needed to be punished more than that period of deprivation of liberty. His Worship was informed that the appellant received $318 a fortnight by way of Social Security benefits plus payment for occasional casual work which supplemented that. His Worship adverted to the maximum for each offence of $22,000 and the need for him to have regard to the maximum penalty.

[14] In reply, the police prosecutor submitted that carrying that type of weapon, particularly the scythe, was a serious example of the offence and to raise it and brandish it was an aggravating circumstance.

[15] In his short extemporary sentencing remarks, his Worship indicated he regarded the offences as serious, adding that he was very concerned with the appellant's conduct:

"He could easily have just complied with the police wishes, I am very concerned by behaving as such as raising a scythe, and then resisting or delaying compliance with police requests to get down on the ground and dispose of the weapon."

[16] The learned Magistrate referred to the potential disaster where weapons are available and might be used and said it was entirely inappropriate for weapons to be carried, "in a situation of heightened emotions". His Worship again expressed his concern as to what may have happened if the police had not turned up when they did. Later, however, he indicated there were factors which mitigate the offence in that it occurred during the day, that the offence was mainly for self defence and although there was potential for harm, there was no actual threat. His Worship paid regard to the maximum penalty prescribed by the legislation and the appellant's financial circumstances, but said there was a need for general deterrence as an important consideration.

[17] The grounds of appeal are that the sentence imposed by the learned Magistrate was manifestly excessive in that he erred in his view as to the level of seriousness of the offending, failed to take sufficient account of the appellant's means and erred in giving insufficient weight to mitigating circumstances of the offence. It is also alleged that his Worship erred by taking into account irrelevant considerations. In the course of submissions before the court the question of whether or not his Worship allowed any mitigation on account of a plea of guilty was raised.

[18] Counsel for the respondent conceded that the penalty imposed was excessive, taking into account the appellant's means. I consider that concession is rightly made, but I think it is also apparent from what his Worship said when sentencing the appellant that he impermissibly took into account the appellant's behaviour when the police confronted him. In connection with the seriousness of the offence, his Worship expressed himself to be concerned at the appellant's conduct such as raising the scythe, resisting or delaying compliance with the police request to get down on the ground and disposing of the weapon.

[19] The simple fact of raising the scythe to shoulder height does not of itself connote any greater degree of culpability in relation to the possession of the scythe (the appellant put forward an innocent explanation which was not expressly rejected) and the facts relied upon by the prosecutor before his Worship disclose that there was no resisting of arrest. The arrest did not take place until after the appellant had laid down as requested and was searched. The appellant had not been charged with any offence other than simple possession. (See The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383).

[20] It is not clear to me whether his Worship allowed anything in favour of the appellant for his plea of guilty. Certainly his Worship said that he had taken into account everything that had been put to him, but the amount of the fine imposed and without reference to the value of the guilty plea, suggests that it was overlooked.

[21] I consider that in fixing a penalty for an offence of this type the sentencing tribunal is entitled to take into account the nature of the weapon in assessing the seriousness of the offence of possession of the weapon.

[22] The seriousness of the offending in each case may be judged by reference to the article in question, the circumstances about it which brings it within the definition in the particular case, coupled with the degree of damage, injury or fear which weapons of that particular type could cause, viewed objectively. It is also relevant to take into account the specific intent referred to in the definition, if relevant.

[23] The appellant's avowed intention was to use the scythe and the knife, if need be, in defence of himself. Whether any anticipated assault would justify the use of either of them for that purpose is speculation. The fact remains that he chose to arm himself with them and had formed an intention to use them as weapons. The scythe was an article by which the appellant intended to cause fear or injury to a person and by his plea he acknowledged that his reasons for having it in his possession did not amount to a lawful excuse as defined. That intention aggravates the circumstances of that possession in my opinion. As to the knife, the offence is made up of possessing, carrying or using it in a public place without lawful excuse, proof of which is on the accused. No question of intent to use it for a prohibited purpose is required to make out the offence.

[24] I am satisfied that the learned Magistrate erred in the exercise of his discretion by taking into account irrelevant matters and in the imposition of a penalty which was manifestly excessive in all the circumstances. It has not been suggested that any penalty other than a fine would be appropriate. I note the appellant's financial circumstances and that the payment of a fine may, depending upon its quantum, impose a burden upon the appellant (Sentencing Act, s 17). He is not a man who would be expected to have ready means to pay. It must come from his Social Security benefits and earnings after making due allowance for maintenance for himself, his de facto wife and children. There can not be much to spare.

[25] I note that the previous regime calling for imprisonment in lieu of default of payment has now been significantly relieved by the Fines and Penalties (Recovery) Act 2001 (NT) permitting time to pay, payment by instalments and a variety of enforcement actions.

[26] The requirements of the Sentencing Act in relation to the imposition of a monetary penalty and common sense, combine to support the acknowledged principle that the imposition of fines for like offences should be calculated so as to result in an equal impact on the offenders who have to pay them. A system which leads to the imposing of financial penalties which produce grossly unequal effects on offenders with differing resources would offend the principle. A fine lower than what might otherwise be appropriate may be imposed upon an offender who is clearly unable to pay a larger amount, but possession of wealth is insufficient reason for raising the fine above what would otherwise be the normal level. In Fry v Bassett (1986) 44 SASR 90 at p 92 Olsson J regarded the following as being a "cardinal principle" in determining a financial penalty:

"... if it is appropriate to impose a fine the quantum of it must in any event be related to the means of a defendant in some logical manner, particularly in the case of persons who are of very limited resources. Whilst fines must, in general, constitute a proper reflection of the gravity of the offending, nevertheless subjective consideration must be given to what level of fine will act as a sufficient level of punishment to a defendant in his particular circumstances. A modest fine towards the lower end of a permissible spectrum may well constitute a very salutory penalty and impose significant hardship on an impecunious person whereas, in the case of a person of means, a penalty higher along the relevant spectrum of reasonable tariffs may be more appropriate."

[27] The appellant is entitled to have a reduction of the proposed fine to take into account his plea of guilty. The police had a strong case. After all, the appellant was found in possession of the weapons in a public place, but neither when questioned nor later had he attempted to avoid responsibility for what he did by attempting to attribute a circumstance amounting to a lawful excuse for his possession at that time. He pleaded guilty and thus gave up the right to a trial thereby aiding the administration of justice. There is nothing, however, to suggest that his plea was indicative of remorse for his wrongdoing. In all the circumstances I think a reduction of penalty in the order of 15 percent is appropriate.

[28] The court was informed by counsel for the respondent that the usual penalty for a first offence on either of the charges to which the appellant pleaded guilty is a fine ranging between $400 and $800 on each count. No explanation was supplied as to what, if any, range of penalties had been imposed in circumstances where there were two offences, such as this, committed at the same time by the same person as part of the same transaction. Counsel for the appellant was prepared to accept the information conveyed to the court by counsel for the respondent.

[29] The fine imposed by his Worship is set aside and in lieu thereof an aggregate fine of $1,000 is imposed. Paying regard to the appellant's ability to seek to have the penalty paid by instalments, a fine of that order will impose significant hardship upon him such as would serve the purpose of personal and general deterrence. The appropriate amount of levy imposed by the Crimes (Victims Assistance) Act must also be paid.