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[2011] NTSC 10
appellant. Appeal allowed; sentence reduced from four months imprisonment to two months imprisonment (paras [1], [28]–[29]).
The appellant spat at a police officer while being taken into protective custody and was sentenced to four months imprisonment. CCTV footage, not shown at the original sentencing, revealed police officers subjecting the appellant to rough, humiliating treatment at the watch-house charge counter that the Court concluded amounted to extra-curial punishment. The Supreme Court held that sentencing courts may take extra-curial punishment into account to avoid imposing an excessive cumulative sentence, and that the learned Magistrate erred by not having that material before him. The appeal was allowed and the sentence reduced to two months imprisonment.
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1,631 words · generated 18/08/2026
Peter Robin Fernando pleaded guilty in the Court of Summary Jurisdiction to one count of unlawful assault of a police officer contrary to s 189A Criminal Code, constituted by three spits that struck an Aboriginal Community Police Officer (ACPO RW) while Fernando was being taken into protective custody (paras [2]–[3]). At first instance the learned Magistrate described assaults by spitting as "right at the top of the range" and sentenced Fernando to four months imprisonment (para [5]).
No linked legislation citations have been extracted yet.
The appellant did not have CCTV footage before the Magistrate showing what occurred after his arrest. On appeal the respondent consented to tender fresh evidence under s 176 Justices Act, and the Supreme Court viewed the footage (paras [6]–[7], [10]–[11]). The footage showed a sequence of conduct at the watch-house: an officer making an offensive gesture to the occupants, the appellant being pushed and dragged from a holding cell, being taken to the charge counter where he was held by the neck, grabbed by the hair, repeatedly forced down with his head pushed into the counter, a towel or blanket placed over his head, and later being lifted and carried to a cell by four officers (paras [12]–[17]).
Blokland J concluded that the watch-house treatment had the appearance of punishment exacted by police, and that this extra‑curial punishment ought to have been taken into account in sentencing (paras [11], [18], [21], [24]). The Court allowed the appeal and reduced the sentence from four months to two months imprisonment, taking into account the guilty plea and the watch-house treatment as mitigation (paras [1], [28]–[29]).
Central legal issue: whether extra‑curial punishment inflicted on an offender may be taken into account by a sentencing court and, if so, how that should affect sentence.
Blokland J applied the reasoning expressed in R v Daetz (as cited at para [21]) that a sentencing court must take into account all material facts and ensure that punishment is appropriate and not excessive. Where an offender has already suffered serious loss or detriment as a consequence of the offence, including extra‑curial punishment by private persons (or in this context, police conduct amounting to retribution or revenge), that fact is a relevant matter for sentencing (para [21]). The Court emphasised that the weight to be given is a matter for the sentencing judge and will depend on circumstances; in many cases extra‑curial punishment will attract little weight, but where the treatment amounts to punishment it should lead to mitigation (paras [21]–[22], [24]).
Here the distinguishing fact was that the CCTV footage showed conduct by watch-house officers at the charge counter that had the appearance of deliberate punitive treatment (paras [11]–[18]). That treatment was not simply injury in the course of arrest or brought on by the offender's conduct; rather it was inflicted after apprehension and had humiliating and degrading features (paras [14]–[16], [18]). Because the Magistrate did not have that material before him, the sentencing discretion miscarried: the Court of Summary Jurisdiction could not properly have assessed the overall appropriateness of the sentence without the footage (paras [6], [10], [28]). Consequently the Supreme Court intervened and re‑sentenced, reducing the custodial term.
The Court also found a separate error in the Magistrate's characterisation of spitting assaults as "right at the top of the range" (para [25]). Blokland J reasoned that assaults by spitting are serious, but the "top of range" should be reserved for the most serious assaults possessing other aggravating attributes; treating all spitting assaults as top range risks excessive sentences.
Before this decision, Australian appellate jurisprudence recognised that extra‑curial consequences of offending could be considered in mitigation. The New South Wales Court of Criminal Appeal in R v Daetz had explicitly held that courts may take into account extra‑curial punishment when determining sentence, subject to assessment of weight according to circumstances (para [21]). Blokland J follows that authority and applies it to a Northern Territory sentencing context, locating the power within the general statutory obligation in the Sentencing Act (NT) s 5(1)(a) to punish in a way that is "just in all the circumstances" and to consider aggravating/mitigating factors under s 5(2)(f) (para [23]).
After this decision: Fernando v Balchin reinforces that sentencing courts in the Northern Territory should consider extra‑curial punishment where it is shown to have occurred and to have been of a character amounting to punishment. It also clarifies that appellate courts may admit fresh evidence under s 176 Justices Act and intervene where the absence of that material at first instance produced a miscarriage. The case underscores that not all spitting assaults are top-range, prompting more nuanced application of sentencing tariffs for assault by spitting.
Paragraph [21] (quoted from R v Daetz): "the Court is required to take into account all material facts... ensure that the punishment... is... appropriate and not an excessive punishment."
Plain English: The judge must look at everything that matters, including harm the offender has already suffered because of the offence, to make sure the sentence is fair and not too harsh.
Paragraphs [11]–[16]: Factual description of CCTV events, dragging, hair‑grab, head forced into the charge counter, towel over head.
Plain English: The video shows police officers handling Fernando roughly after he was detained; they held and forced his head down, grabbed his hair, covered his head at one point, and later carried him to a cell.
Paragraph [24]: "The treatment of the Appellant at the charge counter is particularly disturbing... by virtue of the actions and words of some of the police officers this episode has all the appearances of the Appellant being punished by them for the earlier offending."
Plain English: The judge found the watch-house conduct looked like punishment carried out by police, not normal processing, and that should affect the sentence.
Paragraph [25]: "It is an error to regard assaults by spitting as 'right at the top of the range'."
Plain English: Spitting is serious, but calling every spitting assault 'maximum range' is wrong; more serious assaults should occupy that top category.
The precedent is engaged where:
Where these features are present, this judgment supports admitting the evidence on appeal and giving it weight in re‑sentencing.
This judgment expressly applies and follows R v Daetz and cites a range of interstate authorities to support the principle that extra‑curial punishment is a relevant sentencing consideration (paras [21]–[22]). Blokland J also adopts sentencing guidance in Bellis v Burgoyne for assault-police offences and treats various prior authorities as background for appropriate sentencing ranges (para [26]). The decision itself is an instance of appellate correction when fresh material demonstrates a sentencing miscarriage. Practitioners should therefore expect appellate courts to be willing to admit fresh evidence under appropriate statutory mechanisms (here s 176 Justices Act) and to adjust sentences where the omission of material evidence resulted in excessiveness.
Degree of weight to be given: The judgment emphasises that weight is case-specific, but it does not set a quantitative or analytic framework for balancing extra‑curial punishment against culpability and other sentencing factors. Sentencers must exercise evaluative judgment; subsequent cases will further delineate limits on the weight to be accorded in different factual matrices (paras [21]–[22]).
Source of extra‑curial punishment: Here the extra‑curial punishment appeared to come from police themselves. The judgment treats that material as mitigating. Future cases may need to address whether treatment by state agents calls for different conceptual or remedial responses (disciplinary, criminal, evidentiary) as opposed to treatment by private persons, though Blokland J did not draw a legal distinction in principle (paras [11]–[18], [21]–[24]).
Interaction with accountability processes: The Court noted civil proceedings and acknowledged that the conduct could have been the subject of other processes (para [9]). How sentencing mitigation interacts with parallel disciplinary or civil remedies for police conduct remains an area for clarification.
Admissibility and appellate process: The Court used s 176 Justices Act to receive the CCTV footage on consent. Questions remain about the bounds of s 176 admissions where consent is not given, or where fresh material is obtained post‑sentence but could have been discovered with reasonable diligence.
Scope relative to offences: The judgment narrows the unhelpful generalisation that spitting is 'top of the range', but leaves open the detailed taxonomy of where particular spitting‑assaults fit within the spectrum, especially when combined with aggravating features (prior convictions, use of weapon, serious injury). Future sentencing jurisprudence will refine those calibrations (paras [25]–[26]).
Note: This analysis is based only on the text and reasoning contained in Fernando v Balchin [2011] NTSC 10. Before relying on any part of this summary or using it for decision-making, consult the full judgment and consider getting advice from a qualified lawyer. I can be mistaken; this is general legal information, not legal advice.
CRIMINAL LAW - APPEAL FROM SENTENCE - appellant punished in addition to Court imposed punishment - regard to extra-curial punishment - exacting retribution or revenge for the commission of the offence - weight to matters of mitigation - Court to take into account all material facts - sentencing discretion - Appeal allowed.
Jadurin v The Queen [1982] FCA 215; (1982) 7 A Crim R 182; Mamarika v The Queen [1982] FCA 94; (1982) 5 A Crim R 354; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305; R v Allpass (1994) 72 A Crim R 561; R v Barci (1994) 76 A Crim R 103; R v Cooney (unreported, Court of Appeal, Queensland No 386 of 1997, 6 March 1998); R v Gentz [1999] NSW CCA 285; R v Haddara (1997) 95 A Crim R 108; R v Minor (1992) 59 A Crim R 227; R v Noble [1996] 1 QD R 329; referred to.
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Fernando v Balchin [2011] NTSC 10
[1] This appeal against sentence primarily concerns the question of the regard to be had to extra-curial punishment inflicted on a defendant. Although other grounds of appeal were argued in these proceedings, shortly after hearing the appeal and viewing the relevant closed circuit television ("CCTV") footage, I formed the view that the ground of appeal relevant to this issue had been made out. On 17 December 2010 I made orders allowing the appeal and reducing the sentence from four months imprisonment to two months imprisonment. These are the reasons for that decision.
Proceedings Before the Court of Summary Jurisdiction
[2] On 22 October 2010 the Appellant pleaded guilty to one count of unlawful assault of a police officer in the execution of his duty contrary to s 189A Criminal Code. The assault was constituted by the spittle from three spits in close succession striking the police officer. The offence occurred in the context of the Appellant being spoken to and apprehended for protective custody due to his level of intoxication. The assault occurred after the Appellant was placed into the rear of the police van and the cage door was closed.
[3] The victim was Aboriginal Community Police Officer RW. The spittle landed on ACPO RW's face and chest area and a small amount sprayed out and landed on his mouth, neck and chest areas.
[4] The Appellant had previous convictions, a number of those are directly relevant to this charge although they are from some time ago. For example, the Appellant received a 14 day sentence of imprisonment suspended for 12 months in 1999 for assault police and aggravated assault. In 2001 he was dealt with for aggravated assault. In 2002 he was dealt with for two counts of aggravated assault. In 2005 he was dealt with for liquor and cannabis related offences and a charge of being armed with an offensive weapon. He received fines and bonds for that offending.
[5] In sentencing the Appellant for the assault police charge[1] part of the learned Magistrate remarks were as follows:
The assault matter is far more serious, I view assaults involving spitting in peoples faces as right at the top of the range when it comes to assaults. It puts an awful stress on the victims. They do not know for several months whether they are going to be cleared of any disease, and that is not to suggest you have got one. It is just the fear in the victim for those matters.
[6] Initially, on behalf of the Appellant, it was indicated there would be an application under s 176A Justices Act to tender fresh evidence in the form of the CCTV footage of the dealings of certain police officers with the Appellant after he was taken to the police station. The CCTV footage was not played to the learned Magistrate in the Court of Summary Jurisdiction. On behalf of the Respondent consent was given to tender the CCTV footage under s 176 Justices Act. Section 176 Justices Act relieves a party of the stricter requirements under s 176A Justices Act when it is sought to tender evidence that was not before the Court of Summary Jurisdiction.
[7] The Appellant argued the CCTV footage was relevant for two reasons. First as relevant to extra curial punishment. The Appeal proceeded on the basis this issue was substantially within the ambit of Appeal Ground 4: "The learned Magistrate gave insufficient weight to matters of mitigation presented by counsel for the Appellant". The second area of relevance was said to be that the CCTV footage illustrated the sense of power imbalance a person such as the Appellant may feel during protective custody procedures and certain other interactions with police. In acknowledging the repulsive nature of the act of spitting on a person, counsel for the Appellant urged the Court to recognise that spitting can be reflective of a power imbalance and sense of helplessness. In support of this submission counsel cited Murphy J in :
Spitting is humiliating and degrading. It is a typical response of children and others without power, attempting to humiliate and degrade those seen as oppressors.[3]
[8] Although it can be helpful to be reminded of these dynamics as it assists to contextualise the conduct, in my view this factor is not of such significance that by itself would result in allowing this particular appeal. This case involves the difficult mix of problems inherent in the management by police of persons who are seriously intoxicated.[4] The direct relevance of the footage is in my view for the first reason submitted, namely informing the Court with some clarity and accuracy of the alleged extra curial punishment.
[9] Before the learned Magistrate, counsel referred to this issue in a rather oblique way by stating:[5]
What's happened subsequent to that Your Honour is the subject of a current civil proceeding, where offers have been made from the police to settle the matter. It is relevant what happened in terms of the fact that there has been some summary justice that was meted out at the police station and assaults have occurred, which left him with some injuries. Your Honour, he spent that night in protective custody, and he was released the following day and he spent no further time in custody.
Your Honour I won't go into the details about what happened that night at the police station but I do say that it is relevant in sentencing in these matters.
[10] On appeal I have had the advantage of seeing the relevant police footage and have readily come to the conclusion that the sentencing discretion has miscarried for the reason of failing to take into account conduct that amounted to extra curial punishment. It would have been difficult however for the learned Magistrate to have taken this matter into account appropriately as the relevant evidential material was not directly before him.
[11] In the CCTV footage of the Appellant's arrival at the police station, (with many other persons to be detained for protection), there are some disturbing images. I say that in the knowledge that processing of intoxicated persons is a difficult and no doubt thankless task for police. I will summarize the CCTV footage played at the hearing of the Appeal.
[12] Prior to the appellant being taken from the rear of the police caged vehicle, a police officer appears to make a rude gesture with his middle finger directly towards the rear of the vehicle containing the Appellant and others. He does this for a number of seconds. The occupants are then escorted to and placed in a holding cell. Shortly after, a police watch house officer enters the holding cell housing the appellant and places another person in the same holding cell. It appears the appellant engages in a verbal altercation with that officer.
[13] The appellant is then pushed by the officer and there is some brief interaction between the appellant and the officer, ending with the appellant being dragged from the holding cell and tossed into an area that is out of the view of the CCTV camera for one to two seconds. Upon reappearing in view of the camera the appellant is dragged to the ground by an officer and ground stabilized with a knee in the back area. The appellant is then held and escorted into the 'charge counter' area of the watch house by two officers, one of them holding the appellant in the area at the back of the neck, the other holding the appellant's arm in an 'arm lock' behind his back. The appellant is then shoved hard into the charge counter, his chest region heavily impacting against the counter.
[14] The officer holding the appellant's neck moves his grip from that area to the top of the appellant's head and grabs him by the hair. The appellant is asked his name. He responds with "Peter Fernando". The officer holding him by the hair says "shut the fuck up Fernando" and proceeds to push the appellant's head down with some force into the charge counter.
[19] It is important not to lose sight of the fact that spitting at anyone, let alone a police officer performing difficult duties is a serious offence, however given the Appellant's treatment after his apprehension as observed at the hearing of the Appeal, that treatment should be reflected in the sentence. The authorities indicate some allowance should be made in these circumstances.
[20] Although in the context of commenting on the leniency of a sentence, in Allpass[6] the New South Wales Court of Criminal Appeal noted this principle where there was evidence of a campaign of abuse and harassment involving threats of serious injury to the person and property of the prisoner and his elderly wife after allegations of serious sexual assault emerged. Although the consequences of the threats and harassment were severe, in terms of the relevant principle, the Court stated:[7]
We also take into account, as the Crown concedes we are entitled to do, the extra-curial punishment that has already been meted out to the respondent by others, both before and after the sentencing proceedings.
[21] In R v Daetz,[8] after reviewing relevant authorities from a number of jurisdictions the New South Wales Court of Criminal Appeal held[9] that while it is the function of the court to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This was held to be so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence.[10] It was held the reason the Court takes these matters into account was because:
[t]he Court is required to take into account all material facts and is required to ensure that the punishment that the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing Judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
[22] In coming to this conclusion the New South Wales Court of Criminal Appeal drew heavily on not only previous decisions in New South Wales,[11] Queensland[12] and Victoria,[13] but importantly compared the underlying rational in Northern Territory jurisprudence concerning community punishment of Aboriginal offenders.[14] Although acknowledging the difficulties of applying these cases generally, the New South Wales Court of Criminal Appeal concluded that extra judicial punishment is a matter that a sentencing court can and should take into account as part of its duty to take into account all material facts and to ensure that an offender is punished appropriately.[15]
[23] Although not dealt with specifically in the Sentencing Act (NT), a sentencing Court as a matter of statute is obliged to punish or sentence in a way that is "just in all the circumstances"[16] and consider the presence of any "aggravating or mitigating factor concerning the offender".[17] The Sentencing Act (NT) is clearly broad enough to allow a Court to consider this issue in arriving at the appropriate sentence.
[24] This Court was not informed in detail on the extent of injuries received by the Appellant. I have proceeded on the basis that although there were "some injuries" suffered by the Appellant, they were not of the significance illustrated in other cases.[18] The circumstances however give rise to the conclusion that the Appellant was being punished. Any later Court imposed punishment is additional. This is not a case where the treatment of the Appellant could be said to have been brought upon himself, such as being injured during the course of commission of the crime or during apprehension. It is in relation to the treatment at the "charge counter" that leads me to this conclusion. The previous interactions are not of the same significance. Counsel for the respondent acknowledged that the treatment could be seen as degrading and humiliating for the Appellant. Counsel for the respondent did however ask the Court to reject the Appellant's submission in reliance on . I accept that argument concerning the context in this particular case but in my view the treatment of the Appellant at the charge counter should lead to mitigation of the penalty.
[25] Although assault by spitting is a serious offence for the reasons that the learned Magistrate pointed out, it is an error to regard assaults by spitting as "right at the top of the range when it comes to assaults".[20] Although the learned Magistrate was no doubt trying to impress upon the Appellant and others who might offend in this way the significance of assault by spitting, I am persuaded it is an error to sentence on the basis that this was "right at the top of the range". Assaults, including assaults on police officers vary significantly and although all are serious, the "top of range" should be reserved for those that possess more serious attributes. This is a further reason why the Appeal must be upheld.
[26] Since 1994[21] the maximum penalty for assaulting a police officer in the execution of their duty has been five years imprisonment.[22] In Bellis v Burgoyne[23] Mildren J helpfully set out a number of guidelines distilled from the authorities relevant to sentencing offenders on pleas of guilty for assaulting police. I respectfully agree and adopt those guidelines in the re-sentencing process. They are as follows:[24]
- Each case requires individual assessment and treatment: (Yardley v Betts (1979) 1 A Crim R 329 at 334: applied by Kearney J in Golder v Pryce (unreported, 24/12/97)).
(a) The offender deliberately assaults police in order to impede them from performing their work: Hayes v Trenerry (unreported, Kearney J 13/3/95, para 18).
(b) There is some other aggravating feature about the case, for example: the appellant may have a prior conviction for assault police or for violence; or the appellant may have used or threatened to use a weapon: see Ferguson v Chute (unreported, Mildren J 3/6/92), applied in Casey v Hayward (unreported, Kearney J 12/3/9). I would add to this category cases where the police officer has suffered bodily or grievous harm, or has been put in fear of his safety, or has suffered psychological trauma as a result of the attack.
(c) Where the offence took place in circumstances where the police were outnumbered, or in a remote location away from assistance: Kumantjara v Harris [1992] NTSC 64; (1992) 109 FLR 400 at 409.
[27] Further, His Honour noted that having regard to the very wide range of circumstances of this type of offence and of offenders, the views expressed by other members of the Court to the effect there is no tariff must be correct.[25]
[28] As I have found error on two clear grounds, I proceeded to re-sentence. In these circumstances it is of no value to examine the further grounds. I note there was material before the learned Magistrate concerning mental health and rehabilitation issues with this Appellant. In re-sentencing I have taken into account the plea of guilty in permitting release of the Appellant after service of two months rather than serving a further month imprisonment. The primary reason for reducing the term remains the treatment of the Appellant at or near the "charge counter". The offending still justified a term of imprisonment, (albeit reduced for the reasons given), because of the Appellant's previous convictions.
[29] I confirm the appeal was allowed and the Appellant was sentenced by me to two months imprisonment.
[1] The Appellant was also sentenced for one count of possess cannabis in a public place committed on 8 July 2010. He was sentenced to one month imprisonment to be served concurrently with the sentence on the assault police count.
[2] [1982] HCA 55; (1982) 149 CLR 305 at 319.
[3] Murphy J citing Seligman, "Helplessness - On Depression, Development and Death", San Francisco, 1975.
[4] Police Administrations Act, ss 127A-129.
[9] James J. with whom Tobias JA and Hulme J agreed.
[11] R v Allpass (1994) 72 A Crim R 561; R v Gentz [1999] NSW CCA 285.
[12] R v Cooney (unreported, Court of Appeal, Queensland No 386 of 1997, 6 March 1998); R v Noble [1996] 1 QD R 329.
[13] R v Barci (1994) 76 A Crim R 103; R v Haddara (1997) 95 A Crim R 108.
[14] In particular, Jadurin v The Queen [1982] FCA 215; (1982) 7 A Crim R 182; R v Minor (1992) 59 A Crim R 227; Mamarika v The Queen [1982] FCA 94; (1982) 5 A Crim R 354.
[16] Section 5(1)(a) Sentencing Act.
[18] Counsel before the learned Magistrate said the assaults had left the Appellant with "some injuries" T p 4..
[21] Previously s 158 Police Administration Act provided for a maximum penalty of $1000 fine or six months imprisonment.
[25] Casey v Haywood (unreported Kearney J 12/3/99); Lansen v Marshall (unreported, Thomas J 25/2/03).
Fernando
Balchin [2011] NTSC 10
(1982) 149 CLR 305
(1992) 111 FLR 177
(1992) 109 FLR 400
Appeal allowed; sentence reduced from four months imprisonment to two months imprisonment (paras [1], [28]–[29]).
[15] The appellant's head is then held down against the charge counter whilst two other officers search the appellant and remove belongings from his person. Throughout this process the appellant's head is repeatedly pushed into the counter. At one stage what appears to be a towel or a blanket is placed over the appellant's head.
[16] Shortly after the appellant's head is covered, there is an exchange between the appellant and some officers. The appellant says "you are breaking my arm". The officer holding his head against the counter states "good, you assaulted a police officer". The appellant says "no" to which another officer states "you spat at Ray".
[17] When the appellant's search is completed he is lifted off of the ground by four officers and carried away to a cell.
[18] The treatment of the Appellant at the charge counter is particularly disturbing. By virtue of the actions and words of some of the police officers this episode has all the appearances of the Appellant being punished by them for the earlier offending.