Kumantjara v Harris [1992] NTSC 64; 109 FLR 400

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA KEARNEY J HRNG DARWIN #DATE 24:8:1992 Appearances not available. ORDER Appeals upheld. JUDGE1 The Appeals KEARNEY J On 12 June 1992 the appellant was sentenced by the Court of Summary Jurisdiction at Yulara to 18 months imprisonment on each of 2 counts of aggravated unlawful assault arising from an incident on 29 January the sentences were to be served concurrently. 2. On 7 July the appellant appealed against the severity of those sentences. Ultimately, the grounds of appeal on which he relied were:-

That the sentences were manifestly excessive, in all the circumstances; and
That his Worship had erred in law, in that he had sentenced on the incorrect basis that the maximum punishment for each of the offences charged was 5 years imprisonment, and not 2 years.
On 12 June the appellant was also convicted on a number of other charges arising from a later incident, in April 1992. The total effective sentence which he received that day was 20 months imprisonment, with a non-parole period of 9 months; he was also fined. However, the appeals relate only to the sentences imposed for the two aggravated unlawful assaults. They were argued last Wednesday; I rule on them today. The incident on 2 January

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." 35. In Clair v Brough (supra) I said at p14:- "I bear in mind that the sentences were passed in the exercise by the Magistrate of his discretionary sentencing power. They are presumed to be correct, and should not be disturbed except for strong reasons ... It is clear that where there is a "tariff", that is, a normal range of sentences for a particular offence, sentences imposed by different Magistrates should fall within that range, unless the circumstances of the offence or of the offender are exceptional." 36. The rationale for that approach was the need to avoid any unjustifiable disparity in sentence. As Mason J (as he then was) in another context in Lowe v The Queen [1984] HCA 46; (1984) 54 ALR 193 at 196, said:- "... inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and the elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 37. I also said in Clair v Brough (supra) at p15:- "... to put it simply, like offenders should be treated alike and not be subject to the variations of personality between their judges." 38. I adhere to this general approach to sentencing for common offences for which a sentencing "tariff" has been established. Not all offences fall into that category. Yardley v Betts (1979) 22 SASR 108 was a case of aggravated assault, in terms of our Code, in which the Court had the benefit of a table of sentences imposed for offences of the type before it. King CJ discussed fundamental principles of sentencing and continued at p113:- "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 stabilizing 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 characterized 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". 39. Nevertheless, Mr Howden presented as a useful sentencing guide summaries of the facts and circumstances of 12 cases of aggravated assault in which sentences were imposed between August 1991 and August 1992 in the Alice Springs, Tennant Creek, Lajamanu and Ali Curung Courts. These details were culled from the files of CAALAS. They constituted all the cases in those files for that period which involved assaults by Aboriginal men using dangerous weapons. The circumstances of the offences and the offender varied considerably. None of the cases involved assaults on Police; the respondent was unable to produce any such cases. The penalties imposed ranged from $500 fine through suspended sentences of 6 weeks, 2 months, 3 months and 6 months imprisonment, to terms of immediate imprisonment ranging from 2 months to 18 months. Most of the 12 cases involved the infliction of bodily harm. In the 5 cases which involved only a threat (as here) the penalties ranged from $500 fine to suspended sentences of up to 3 months imprisonment, with one sentence of immediate imprisonment of 2 months. Conversely, the only two cases of the twelve in which the sentences imposed approximated the present sentences, involved assaults resulting in injuries to the victims, where the defendant had provoked and created the incident. In terms of the outcome to the victims, those cases were clearly more serious cases than the present one. 40. Mr Howden submitted that in the light of this range of sentences, as analysed, the sentences of 18 months imprisonment in the present case were manifestly excessive. However, I accept the view of King CJ in Yardley v Betts (supra) that a "tariff" approach to cases of assault is not open. Indeed, the very variety of the sentences imposed in the 12 cases put forward, reinforces that view. The information supplied is therefore of very limited utility in considering whether the sentences imposed are manifestly excessive. 41. Mr Howden informed me that Ms Hopkins and Mr Walkabout have both been dealt with by the Court for their part in the incident. They pleaded to lesser charges than aggravated assault. Ms Hopkins received suspended sentences of imprisonment totalling 7 months, while Mr Walkabout received 2 concurrent sentences of 3 months imprisonment for assaulting the police. Mr Howden rightly did not seek to make any submission founded on disparity of sentencing as between the appellant and these two. The respondent's submissions 42. Mr Roberts, of counsel for the respondent, conceded that on the cases which had come before the Courts of Summary Jurisdiction, sentences of 12-18 months imprisonment for aggravated assault appeared to be restricted to those where actual serious injury had been inflicted. He confirmed that assaults on Police officers were usually prosecuted under s158 of the Police Administration Act, which carries a maximum punishment of a fine of $1000 or imprisonment for 6 months, or both. In relation to such charges, he said, a sentence of immediate imprisonment was usually imposed only where a weapon had been used, or an actual injury inflicted on a Police officer. Mr Roberts also informed me that his Worship had warned when sentencing in various cases from April this year that Police officers located in remote communities would be protected by the courts. This was presumably a response by the court to an increased incidence of assaults upon Police. The present assaults took place in January, before the Bench had issued these warnings. Conclusions 43. When imposing punishment on those who commit aggravated assaults on Police officers carrying out their duty, the courts are always conscious of the need for general deterrence. By the nature of their work, which is carried out in the public interest of maintaining peace and good order, Police are always in a vulnerable position. The courts have always seen them as a particular category of persons who require the protection of the courts, as far as it can be given, from physical violence. This aspect is particularly to the fore, when the officers are in a particularly vulnerable situation, such as those posted to remote locations. The appropriate sentence in such cases will be one of immediate imprisonment, of a fairly long term. 44. The present case is not untypical of situations with which Police must cope in the Territory; a number of people in a remote location, clearly the worse for drink, and 2 police officers considerably outnumbered by them seeking to do their duty. The appellant's physical resistance to arrest was clearly the spark which inflamed the others. Such a situation can become very dangerous, as a combination of engendered mass hysteria and drink leads to a complete loss of individual restraint and the release of mob fury. The appellant's later behaviour with the crowbar was reprehensible and highly dangerous. It must be strongly condemned and this condemnation is shown by the imposition of condign punishment. The appellant's record is such that he can be given no leniency on that account. Fortunately for him, no Police officers suffered any actual bodily harm. 45. If there is an increased incidence of assaults on Police, it will be necessary to impose heavier sentences; that has not been sought to be established before me. Bearing in mind the matters I have mentioned, and the serious criminal conduct of the appellant, I consider nevertheless that 18 months imprisonment, currently, is manifestly excessive for what he did in January. 46. The appeals are upheld. The two sentences of 18 months imprisonment imposed on 12 June are quashed. In lieu thereof, the appellant is sentenced to 14 months imprisonment for the aggravated assault on Wayne Harris and 14 months imprisonment for the aggravated assault on Christopher Page. Those sentences are to be served concurrently and to be deemed to have commenced to be served on 8 May 1992. 47. The other sentence of 2 months imprisonment imposed by the Magistrate on 12 June for resisting arrest on 19 April, will now be served cumulatively upon these concurrent sentences of 14 months. 48. It is unnecessary to adjust the non-parole period of 9 months which was fixed in relation to an effective sentence of 20 months imprisonment; there is now an effective sentence of 16 months.

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Judgment (3 paragraphs)

Kumantjara v Harris [1992] NTSC 64; 109 FLR 400 (24 August 1992)

Parties

Cases Cited (2)