Supreme Court of the NT|1992-02-28|Before: Kearney J, Mildren J

Gadatjiya v Lethbridge [1992] NTSC 11; 106 FLR 265 (28 February 1992)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA JUSTICES APPEAL FROM A COURT OF SUMMARY JURISDICTION MILDREN J CWDS Aboriginals - Crimes by Aboriginals - Special leniency to be shown Appeal and new trial - In general and right of appeal - Justices appeal - Where ground of appeal is manifestly excessive sentence - Statistics indicating tariff very desirable. Justices Act (NT). Mason v Pryce [1988] NTSC 28; (1988) 53 NTR 1, applied. Butcher v Hamon (unreported, 30 August 1991 per Kearney J), considered. Criminal law and procedure - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - First offenders - Element of deterrence. Birch v Fitzgerald (1975) 11 SASR 114, applied. Lovering v Brough (1985) 36 NTR 59, considered. Criminal law and procedure - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - No presumption in favour of imprisonment for certain types of assault Yardley v Betts , applied. Criminal law and procedure - Jurisdiction, practice and procedure - Judgment and punishment - Limits on CSJ sentencing

v. Samuels (1972) 2 SASR 488 at 492: 'In the absence of circumstances of substantial gravity surrounding a simple offence or a minor indictable offence committed by a first offender who stands to be punished for a single offence and who has no other offences to be taken into consideration, and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, I am disposed

to think that a reformative or a primarily deterrent sentence is scarcely indicated, and that the imposition of a fine, a

release on probation, or a discharge on a suspended sentence should prima facie be adequate.'" 31. It is to be observed that the Appellant in this case stood to be punished for four offences. 32. By way of contrast, I adopt, with respect, the observations of Bray CJ in Birch v. Fitzgerald (1975) 11 SASR 114 at 116-117: "Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated." 33. Finally, I adopt, with respect, the observations of King CJ (with whom Mitchell J agreed) in Yardley v. Betts (1979) 1 A Crim R 329 at 332-334: "The question underlying the first point reserved is whether this court should lay down or approve as a matter of principle that there is or ought to be a presumption in favour of imprisonment as the punishment for assault or for certain types of assault. It is necessary to keep firmly in mind the fundamental principle that the criminal law exists for the protection of the community. This protection is achieved primarily, in my view, by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. The aspect of deterrence of the particular offender and of others must not be overlooked. The courts must assume, although evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime. Deterrence possesses particular significance in cases of unprovoked violence. The observations of Bray CJ in Birch v. Fitzgerald (1975) 11 SASR 114 at 116-117 are in point ... The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a

criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of Judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from

those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations. They are

summed up, in the aspects relevant to the present discussion, by Napier CJ in Webb v. O'Sullivan (1952) SASR 65 at 66: 'The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We

ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.' The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so. How are these principles to be applied to offences of assault? Assaults vary very greatly in seriousness. Some result in injury to the victim and some do not. Some are committed under provocation in the heat of the moment and others are wanton and premeditated attempts to impose the offender's will on the victim by force. Some are mere man to man altercations and others are terrifying and cowardly examples of mass violence. Many other variations could be mentioned. The offenders vary from the normally law abiding person who is caught up in a situation of stress which erupts into violence, to the habitual bully and thug. In some cases a term of imprisonment may enhance rather than diminish the prospects of the offender avoiding crime in the future. In other cases, a term of imprisonment may turn a usefully employed person into a frustrated unemployed person, may deprive the offender of the best and most stabilising influences in his life by disrupting a good family situation and may increase a propensity to crime by placing him in the company of criminals. The need for deterrent punishment will vary according to the circumstances of the offence. A consideration of these factors leads to the conclusion that cases of assault require individual assessment and treatment. In my opinion there can be no presumption one way or the other as to whether imprisonment is the appropriate way of dealing with any particular case. A judicial policy which were to embody such a presumption in respect of assaults

generally, or assaults which could be characterised as "serious," or assaults where "some injury is caused to the victim", would not, in my view, be justified. It is worth pointing out that the degree of injury suffered by the victim is not in every case a satisfactory measure of the gravity of the offence or the culpability of the offender." 34. Having regard to the observations in the cases to which I have referred, I am unable to conclude that the sentencing discretion of the learned Magistrate has miscarried in that he failed to give sufficient weight to the Appellant's prior good character and the fact that he was a first offender. Similarly, I do not consider that the sentences that the learned Magistrate imposed were manifestly excessive. No statistics were put before me to establish that the sentence exceeded any tariff for this kind of offence. But as Kearney J observed in Mason v. Pryce [1988] NTSC 28; (1988) 53 NTR 1 at 5: "When the effective ground of appeal is that the sentences imposed for common offences were manifestly excessive, it is very desirable that meaningful statistics be provided so that the range of sentences which currently constitute the norm for punishment of these offences in Courts of Summary Jurisdiction may be ascertained. The question of the sentencing 'tariff' is discussed generally in Clair v. Brough (1985) 37 NTR 11 at 14-16. Regrettably, however, despite the computerisation of court records, the system currently in use cannot produce the meaningful sentencing information routinely produced elsewhere, essential to the task of both Magistrates and Appellate courts in ensuring that like cases receive like punishment, irrespective of the different Magistrates or Appellate courts before whom each offender chances to appear." 35. Of course, as assault, including aggravated assault, takes many forms it may well be difficult, even if such information could be made available, for it to be of much assistance, because, as King CJ in Yardley v. Betts demonstrates in the passage to which I have referred, assaults vary very greatly in seriousness depending upon the circumstances to which he referred. 36. Despite the absence of statistics I could, in the light of my own knowledge derived from an awareness of the sentencing pattern of this Court for more serious assaults and on sentencing appeals from Justices in assault cases and of reported decisions on sentencing appeals from other jurisdictions, use that information to reach a conclusion one way or another as to whether the sentences on the facts disclosed were manifestly excessive: cf Butcher v. Hamon (unreported, 30 August 1991, per Kearney J). The same applies, of course, to cases of aggravated criminal damage. 37. Having regard to that information in relation to the cases of aggravated assault and aggravated criminal damage, and having regard to the totality of the Appellant's criminality; and taking into account the Appellant's plea of guilty, lack of prior convictions, remorse and the other subjective matters in his favour, I am unable to say that it has been demonstrated that the sentences imposed are manifestly excessive, although the head sentences would appear to be at the high end of the range. As Mr Davies, who appeared for the Respondent, pointed out in his very able submissions, in this case it is pertinent to also note that there were three separate incidents. The first culminated when the Appellant fled the scene. The second involved the criminal damage to the 4 wheel drive Nissan, and the third when he returned to a different part of the house which he entered through the side verandah screen door. The period of time over which the offences took place was prolonged and the store manager and his wife feared for their safety. Although there was no injury sustained to any person, at least four separate instruments were used during the offences, namely a large rock, a star picket, a pocket knife and a blade of glass. Further, the offences took place in a remote community at the victim's home and where there is no police presence. Finally, the offences were unprovoked and without warning, and extensive damage to the house and to the vehicle was caused. A substantial portion of this sentence has been suspended. Even allowing for the fact that the Appellant is an Aboriginal and is a member of a section of the community for whom special leniency has always been shown, I am unable to conclude that it has been demonstrated that the penalties imposed were manifestly excessive. 38. Accordingly, the appeal is dismissed.

Gadatjiya v Lethbridge [1992] NTSC 11; 106 FLR 265

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Gadatjiya v Lethbridge [1992] NTSC 11; 106 FLR 265 (28 February 1992)

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