Gumbinyarra v Teague [2003] NTSC 25

On the evening of Monday 15 April 2002, the appellant went to the Gunbalanya Sports & Social Club and consumed Victoria bitter beer. The appellant left the club in a heavily intoxicated state and went home to Banyan Camp. Later, some time after midnight, he decided to walk to Clancy's Outstation, which is approximately four kilometres out of Gunbalanya. He was in an intoxicated state.

As the appellant was walking past the Gunbalanya Health Clinic, he approached the rear side door of the clinic and used a clenched left fist to smash the top plate glass window of the window, shattering the glass. The damage amounted to $319. The appellant smashed the glass, causing a large laceration to his left fist that bled profusely all over the door and floor. He then entered the health clinic. He walked through the hallway. A short time later he exited the clinic and left the area.

The next morning, the appellant attended he Gunalanya Police Station, participated in a taped record of interview and made full admissions to the offences. When asked why he smashed the glass door, he replied: "I was too drunk". When asked why he entered the clinic, he replied: "No reason". He was then charged and bailed.

[2] The appellant was, at the time of sentencing, a 33 year old unemployed Aboriginal man, living on unemployment benefits. Nothing more is known about the appellant's personal circumstances other than that he has worked on a CDEP program previously and was on a waiting list to return to CDEP work. He had pleaded guilty and through his counsel offered to make restitution of the $319 to the clinic. He had 47 prior convictions, the last being for aggravated assault on 19 February 1997 when he was sentenced to a partly suspended sentence. His last previous conviction for criminal damage was on 8 June 1993 when he received 80 hours community service. The prior convictions included some multiple count convictions. He had also been dealt with on five occasions for breaching bonds, probation or community service orders, the last such occasion being on

17 September 1993. The appellant's prior record included eleven prior convictions for unlawful entry and nine prior convictions for criminal damage.

[3] The learned Magistrate imposed a sentence of imprisonment for four weeks for the criminal damage and a fine of $270 for the trespass and ordered restitution in the sum of $319.

[4] The grounds of appeal are as follows:

1. The learned Magistrate erred in the reception of the victim impact statement and his application of s 106A of the Sentencing Act.
2. The learned Magistrate erred in failing to give due consideration to the appellant's gap in offending.
3. The learned Magistrate erred in placing undue weight to (sic) the appellant's prior record.
4. That the sentence was manifestly excessive.

The sentence actually attacked at the hearing of the appeal was the sentence of imprisonment for the criminal damage. No argument was pressed in respect of the trespass conviction.

The admissibility of the Victim Impact Statement ("VIS")

[5] The prosecutor sought to tender a VIS signed by Angela Peerman. There is no indication of who this person is. The name of the victim on the form is "Gunbalanya Health Clinic". The writing on the form relating to the name of the victim, the name of the offender and the date of the offence is plainly not the same as the writing elsewhere on the form. No objection was taken to that, but objection was taken to the contents of the statement in so far as it dealt with the feelings of insecurity of the staff when called out at night and the risks to the staff in cleaning up the appellant's blood subsequently. At the time of the offending in this case, the clinic was unoccupied. It was submitted that there was no "harm" caused to the staff by the appellant and therefore the VIS was inadmissible. The learned Magistrate held that the matters relied upon were admissible.

[6] Section 106B(1) of the Sentencing Act provides:

The prosecutor shall present to the court, before it sentences an offender in relation to an offence, a victim impact statement.

"Victim impact statement" is defined by s 106A to mean

... an oral or written statement prepared for the purposes of s 106B(1) containing details of the harm suffered by a victim of an offence arising from the offence.

"victim" is defined by s 106A to mean, "a person who suffers harm arising from an offence".

"harm" is defined by s 106A to include:

(b) psychological or emotional suffering, including grief;

(ba) contraction or fear of contraction of a sexually transmissible medical condition:

[7] Counsel for the appellant submitted that the staff members of the clinic were not "victims" because they suffered no "harm" as a result of the offence. The submission was that in order to be "victims", the persons must be the immediate persons harmed as a result of the offending and not so-called secondary victims who are too remote from the offending to be casually connected to it. It was submitted that the staff at the clinic, because they were not present at the time were not victims and in any event, suffered no "harm".

[8] In Staats v The Queen [1998] NTCCA 13; (1998) 123 NTR 16, the Court of Criminal Appeal dealt with an appeal from a sentence I imposed where I had held the appellant liable for certain consequences of his crimes because they were the very kind of thing likely to have happened as a result of the prisoner's crimes. In other words, the test of causation I applied was the same as in the law of tort; the consequences had to have been either foreseen by the accused, or if not, have been reasonably foreseeable by the accused. Where the test is one of reasonable foreseeability, what must be foreseen is damage of the same kind as in fact occurred. The correctness of this view was not challenged by the appellant in Staats. Martin CJ did not question it;

Thomas J accepted the test I had applied (supra, at 37); Angel J doubted its correctness (at pps 26-27).

[9] In Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378, the commonsense test of causation attributed to the law of negligence by March v Stramere

(E. & M.H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, was accepted by the High Court in a criminal case: see (1990) 172 CLR at 387-8 (Mason CJ); 411-412 (Deane and Dawson JJ); 423 (per Toohey and Gummow JJ). Brennan J (at 398-399) and McHugh JJ (at 450) both held that a person is not culpable in respect of harm which he did not actually foresee or which no reasonable person would foresee.

[10] In the present case, the stress that the staff felt was not in my view causally connected to the offending. Questions of remoteness of damage are never easy to define. In the law of torts, nervous shock is not compensible in every case where injury is suffered, even though reasonably foreseeable: see for example the discussion in Jaensch v Coffey [1984] HCA 52; (1983-1984) 155 CLR 549 at 570 per Brennan J:

However foreseeable it may be that passers-by will stop or that morbid curiosity will bring others to the scene, it is difficult to envisage a case where their attendance at the scene and their perception of it could fairly be regarded as the result of the defendant's conduct.

[11] The factors which tell against holding the appellant responsible for the staff's stress are (1) that none of the staff were present in the building at the time; (2) there was no stress suffered by any individual on hearing or learning about the break-in to the building; (3) the stress is said to arise whenever the staff are called out to the building at night. Whichever test is applied, I do not consider that the appellant's conduct is the cause of that stress.

[12] The risk of injury in cleaning up hospitals is not in my view "harm" suffered by anyone. There is no evidence that in fact anyone was injured in any way by cleaning up the blood spills.

[13] In those circumstances, I agree with the appellant that the VIS was inadmissible if it was received and used as a relevant sentencing consideration. Whatever its status might have been under s 106B of the Sentencing Act, s 5(2)(b) and (d) define the consequences for which the appellant was liable for sentencing purposes: see the discussion by

Martin CJ in Staats, supra, at pps 19-20. The matters dealt with in the VIS do not fall within either of those provisions. The word "victim" in s 5(2)(b) is not defined. In my view the staff were not "victims" at all. There was no intention proven to injure them and it was not reasonably foreseeable that they would suffer any harm in the circumstances. No damage or injury to the staff was "caused" by the appellant so as to fall within s 5(2)(d).

[14] Counsel for the respondent submitted that there was nothing to show that the learned Magistrate took into account the contents of the VIS to the detriment of the appellant when considering what sentence to impose. I reject this submission. The learned Magistrate was asked to take it into account by the prosecutor. It was objected to but received into evidence. The learned Magistrate expressly referred to it in his sentencing remarks. He did not say that he would not take the VIS into account. It is plain that he did take it into account and in my opinion, his Worship was wrong to do so.

[15] However, that does not necessarily mean that the appeal must be allowed. Section 177(2) of the Justices Act entitles this Court to dismiss the appeal, notwithstanding that it is of the opinion that the point raised might be decided in favour of the appellant if it considers that no substantial miscarriage of justice has actually occurred. This means, in a sentencing appeal, that this Court must be satisfied that some sentence other than the sentence actually imposed ought to have been imposed, even if the sentence actually imposed could not be said to be manifestly excessive so as to, in itself, demonstrate error.

Ground 2 - Failure to give due consideration to the gap in offending.

[16] The learned Magistrate said that he had regard to the fact that the appellant had not committed offences for something in the order of eight years at all and for ten years in relation to similar offending. This ground of appeal therefore cannot succeed unless what is said is that the learned Magistrate, although he gave it some weight, failed to give it "due" weight.

Ground 3 - Erred in placing undue weight on the appellant's prior record.

[17] The learned Magistrate said of the appellant's prior record:

Sergeant Teague I think correctly points out that he's got an appalling record. Now that's not meaning that he should be sentenced according to what he has done in the past and has to be sentenced of course based on what he's done here. But it does indicate that he hasn't learnt from anything that's gone before and highlights I think a need for specific deterrence.

[18] Counsel for the appellant did not submit that this passage disclosed error. In Baumer v The Queen [1988] HCA 67; (1998) 166 CLR 51, the Court (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ) said at 57:

We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence.

[19] If that passage is applied to the observations made by the learned Magistrate in this case, it is clear that there is no error shown. Therefore, as with ground 2, the appellant can only succeed on this ground if, in the end result, this Court is of the view that the sentence actually imposed was manifestly excessive and that these grounds provide the explanation as to why that is so.

[20] It is well established that in order to succeed on this ground the appellant must show not only that the sentence is excessive, but that it is manifestly so. In Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, the expression used by Dixon CJ, Evatt and McTiernan JJ was that the sentence imposed was "out of all proportion to any view of the seriousness of the offence which could reasonably be taken." Where the appellant relies upon statistical sentencing material, the appellant must show striking disparity before the Court will interfere: see R v Allinson (1987) 49 NTR 38 at 39 per Nader and Kearney JJ.

[21] No statistical material was put before this Court by counsel for the appellant as to the sentences commonly imposed in the Court of Summary Jurisdiction for an offence against s 251(1) of the Criminal Code. The maximum penalty fixed by law is imprisonment for two years. In Alfie Rory (1992)

[1992] NTSC 65; 64 A Crim R 134, Kearney J was referred to some statistical material relating to the offence. As his Honour there noted, at p 138, it is desirable that detailed statistical sentencing material be made available to this Court when sitting on appeal from sentences imposed by the Court of Summary Jurisdiction. In that case, the sentencing statistics were gathered over a

15 month period from February 1991 to May 1992 from the Alice Springs records of CAALAS. His Honour observed at p137:

The penalties imposed ranged from compensation orders under

s 393(1)(c) of the Code, release on good behaviour bonds pursuant to s 5(1)(a) of the Criminal Law (Conditional Release of Offenders) Act 1971 (NT), fines ranging from $150 to $500 sometimes coupled with restitution orders, community service orders of 24 hours, through suspended sentences of imprisonment of one to two months, to sentences of immediate imprisonment ranging from seven days to three months. Clearly, a very wide range of penalties. In general, fines were imposed where there had been no history of prior offending. In the five cases where sentences of immediate imprisonment were imposed all the defendants had a record of prior offending. In the single case where a sentence of three months immediate imprisonment was imposed ... the defendant had two similar priors ... (and) it involved a circumstance of aggravation under s 251(2)(c), so the maximum punishment was seven years imprisonment.

[22] Although this material is now over ten years old and is limited to the

Alice Springs area, it was not suggested by counsel for the respondent that this was not a fair summary of the current position Territory-wide. On that basis, it can be seen that the sentence imposed on the appellant was at the top of the range for a case involving prior convictions without circumstances of aggravation.

[23] It is at this point that the gap in the appellant's previous offending has significance. In Bamaga v Trenerry [1992] NTSC 106; (1992) 111 FLR 355 at 360, Martin J (as he was then) said of an offender who had a six year gap from previous offending:

The fact that an offender who has a criminal record has made an effort to "go straight" ought to carry considerable weight as a mitigating factor, though it may not amount to that which would normally be given in favour of a first offender. If those with a bad record feel that there is to be no benefit from attempts at rehabilitation then why should they bother? It is in the interests of the community that rehabilitation be encouraged.

[24] When the objective circumstances are looked at, the offence in this case occurred when the appellant's judgment was impaired by alcohol. The offending appears to have been spontaneous and largely inexplicable. The appellant did enter the building, but stole nothing and apparently left almost immediately. No further damage to the building was caused. No one was present at the time. The appellant himself was injured in the course of the offence. He later attended at the police station where he made full and frank admissions. He pleaded guilty at the first opportunity and demonstrated remorse and willingness to compensate for the damage by acceding to an order for restitution. When these circumstances are examined, albeit that the building was the clinic, I consider that the only conclusion reasonably open is that the learned Magistrate failed to give proper weight to the gap in the appellant's offending and that the sentence imposed is manifestly excessive.

[25] The appeal is therefore allowed and the sentence imposed in relation to count 2 on the complaint is quashed. In lieu thereof, the appellant is sentenced to 28 days imprisonment fully suspended. I fix the period of

12 months as the period during which he is not to commit a gaolable offence if he is to avoid the consequences of s 43 of the Sentencing Act.