charged with the stated offences, processed and bailed. At
the time of the offence the defendant did not either consent
to
assault Roxanne Jupiter in any way (sic). As a result of
his actions she sustained a broken right leg."
5. The appellant's prior
criminal history was treated as of little relevance
to the present offence. It showed that he had been before the Court on 4
previous
occasions since 1986, but not since 1989. For those offences he had
been fined. He had one prior conviction for an assault in January
1989; his
Worship treated it as "a relatively minor matter". Mr Dalrymple said that it
indicated "a problem with anger control".
6. (b) The submissions in mitigation - In mitigation, Mr Dalrymple canvassed
the nature of the offence and the appellant's circumstances,
viz:-
"- - - my client had only actually drank at the (Borroloola
Inn) for an hour or so, perhaps two hours at the most. It
wasn't as if he had been drinking there for a large number of
hours, and in fact he stopped drinking when he was given the
news that his daughter had been 'medi-vacced' out to
Katherine Hospital. He assumed at that time that his wife
had gone
on the plane as well, and there was nothing much
more that he could do about it to assist his daughter at that
time, or so
he understood; and that's why it was some time
afterwards before he actually went back to his home.
When he arrived back at
his home, his wife was not in fact
there, and it's not in fact agreed that they continued
drinking together during the afternoon.
--- All he's saying is that he got back home; she wasn't
there. He did not continue drinking. He stayed there, and
he was pretty upset about the fact that she hadn't gone with
the plane and that she wasn't then at home.
Later in the night
she came back. She was pretty drunk. He
asked her to find the key to open the tin of meat. She
refused to, and probably
wasn't in a fit state to find it
anyway; that's his sort of retrospective view. It wasn't so
much the fact that she was refusing
to get the tin of meat
that angered him. It was more the fact of the condition she
was in, and the fact that the little girl
had had to be flown
out without the mother that really enraged him; and so I
suppose it was something he'd been brooding on
all afternoon,
and it was triggered off again by her obvious state at that
time, still severely intoxicated.
So he then
assaulted her in the way that's been described in
the precis. He doesn't resile from that, and obviously he
acknowledges that
it was a seriously wrong thing that he did.
However, he does note that she was able to walk, herself,
into the bedroom afterwards;
and he didn't appreciate at that
time - - - that she had received a broken leg. I would submit
that his remorse and concern
about it is to a certain extent
indicated by the fact that he himself went to the police
station and spoke to the police about
what he'd done; and of
course he told the police straight away that he was upset
because his wife was drunk and couldn't fly
out with the
daughter".
7. I note in passing that the offence occurred on 27 November 1994 and the
appellant was interviewed
by the Police 3.5weeks later, on 21 December. Mr
Dalrymple continued:-
"Assaults of this nature of course generally attract at
least
consideration of a custodial sentence. In my submission,
there are a number of factors that should militate towards
persuading you to suspend such a sentence. The first being
my client's record; he has one previous conviction for
assault
but, as I said, he certainly doesn't present as a man
with a long-term history of domestic violence, assaults, who
hasn't been
able to obtain any benefit in the past from bonds
or other manners of penalty other than custodial sentences.
THERE IS ALSO
THE FACT THAT THEY DO HAVE --- TWO CHILDREN,
ACTUALLY; (AGED) 7 AND 3, --- . IT WOULD APPEAR, ON MY
INSTRUCTIONS ANYWAY, THAT
THE WIFE BY HERSELF, BECAUSE OF HER
DRINKING, IS PERHAPS NOT - WELL, IT WOULD BE BETTER TO HAVE
BOTH PARENTS THERE IN TERMS
OF LOOKING AFTER THE CHILDREN,
(RATHER) THAN JUST THE WIFE.
They reside at Garawa 2 Camp which is across the river, so
FOR
THE KIDS TO GO TO SCHOOL and stuff like that, THEY NEED
ASSISTANCE FROM ADULTS TO BRING THEM (TO) THIS SIDE OF THE
RIVER. -
-
- (What) I would draw your attention to again is
his plea of guilty and the fact that he himself contacted
police, which
I think is indicative of remorse on his part.
All those things combined, - - - indicate the appropriateness
of a suspended
sentence rather than an actual custodial
sentence for this assault, and I would be asking Your Worship
to take that course."
(emphasis mine)
- (c) His Worship's remarks on sentence - In proceeding to sentence the
appellant immediately his Worship said:-
"Clive Mawson, you've pleaded guilty at the first opportunity
to aggravated assault. That's an aggravated assault on three
bases: first of all, it was a woman that you struck - - -.
It can't be said that all women are weaker and less able to
defend
themselves than all men. It may be as a general rule
that this is still a proper thing, to be a circumstance of
aggravation
in these days of equality, though I question it.
At any rate, that is the minor part of it, that it was a
woman.
You used
a weapon, indeed, two weapons, particularly the
broom handle. There's no great complaint made of the fact
that you struck
her on the head several times while you were
holding a can of meat in your hand. There's no suggestion
that you lacerated
her scalp or anything. But you beat her a
number of times with a broom handle about the legs, and in
the course of that, you
broke one of her legs. Maybe it
wasn't a bad break. No-one seems able to tell me what sort
of a break it was, and I find
that remarkable.
I am going to assume in your favour that it was something
less than a compound fracture because I am quite
sure that if
it had been a compound fracture, you and she would have known
all about it before she was put in her bed. I am
not going
to assume that it was just a minor chip of bone. She got
into bed with your help, and apparently she slept the night,
but in the morning it was too painful for her to get out of
bed and she had to be helped to the clinic.
This was a couple
of months ago ---. The reason for it:
your daughter had been 'medi-vacced' while you were down (at)
the pub. You assumed
that (your de facto) had gone with the
daughter, but when you caught up with the daughter (sic, your
de facto) she had been
out drinking too and had indeed been
too intoxicated to fly out. This angered you. This must
have been simmering, it would
seem; and it was then, at 9
o'clock at night --- you demanded that she find the key to
a can of meat.
Now, that, regrettably,
Mr Mawson, is in my experience a much
more common reason for violence to wives than their failure
to take children on planes
to hospital. In my experience,
women are much more likely to get flogged, as you flogged
this woman, for refusing to cook
their husband's supper when
he comes in dead drunk. So I guess I do give you some credit
for having what might be called "a
better reason"; but,
goodness me, Mr Mawson, I do not give you very much credit.
You were, if not drunk, you at least had been
drinking, and
you knew perfectly well the sort of wife that you had. I
take it you would have been quite happy for the child
to have
gone into hospital in Katherine with Mum, leaving you to look
after the other one. That is what I'm supposed to take
from
that submission, I think.
You've only one conviction for assault and it was a
relatively minor matter. You were fined
$300 back in 1989.
THIS IS QUITE DIFFERENT. IT IS MUCH MORE SERIOUS. --- A
FLOGGING LIKE THIS, DOES CALL FOR A STRONGLY DETERRENT
SENTENCE. If you had beaten her about the head with the
force needed to break the leg, I think the chances are pretty
good
we'd be talking manslaughter or murder here.
The question is whether that sentence of imprisonment which
the offence deserves,
should be wholly or in part suspended,
and I do take into account your plea of guilty at the first
opportunity. I do take
into account that you co-operated
with the police and that there is some evidence there of
remorse. I THINK THE MESSAGE HAS
TO GO OUT, AND GO OUT
CLEARLY, TO YOU, TO OTHER MEN LIKE YOU, AND TO THE WOMEN IN
THESE COMMUNITIES. I am not prepared to
suspend the
sentence. You are convicted and you are sentenced to six
months gaol with effect from today." (emphasis mine)
- here a broom handle - and the use to which it is put, are important in that
regard.
- Mr Dalrymple
submitted that since KRALAS dealt with only 4 such cases in
1994, it could not be said that the offence was prevalent, and that was
another factor pointing to the 'manifestly excessive' nature of the sentence.
I reject the first proposition. I consider that the
level and frequency of
violence inflicted by aboriginal men on aboriginal women in communities in the
Territory is notorious, unacceptable,
and a topic about which the courts have
voiced their concerns for years.
- Mr Dalrymple also referred to Najpurki v Luker (unreported,
Supreme Court
(NT) (Martin CJ), 6 August 1993). That was an aggravated assault in which the
offender used a knife on his wife, cutting
her badly,; he received a sentence
of 18 months imprisonment, with a nonparole period of 9 months. Mr Dalrymple
submitted that the
difference between the sentence for the present, less
serious, offence (6 months) and the 18 months sentence in Najpurki, was
insufficient
to reflect the difference in the seriousness of the 2 cases. I
reject that proposition.
- In support of ground 2, Mr Dalrymple
referred to submissions he had made
to the Court, set out at p5. He submitted that his Worship had not taken that
factor into account
when sentencing, or had given it insufficient weight.
- I observed that the appellant had never been sentenced to a term of
imprisonment
before. Mr Dalrymple did not submit that his Worship had not
taken that factor into account, but submitted it should be given weight
when
considering whether the sentence was manifestly excessive.
- (b) The submissions by the respondent - Mr Elliott of counsel
for the
respondent referred to the burden which the appellant bore, in challenging the
exercise of the Court's sentencing discretion;
see, for example, the
authorities cited in R v Bird (1988) 56 NTR 17 at pp20-1.
- As to the fact that the appellant had not been
sentenced to a prison term
before, Mr Elliott noted that he was not a first offender, having been before
the Courts on 4 previous
occasions. I accept that, but the approach to
sentencing a first offender - that all other possibilities should be exhausted
before
the decision to impose a sentence of immediate imprisonment is reached
- also applies where a custodial sentence has never previously
been imposed on
the offender.
CONCLUSIONS ON THE APPEAL
- The general principles applicable to appeals against sentence are set
out
in the authorities cited in Salmon v Chute [1994] NTSC 21; (1994) 94 NTR 1 at p24 and Goddard
v Bell (unreported Supreme Court (NT) (Kearney J), 8 March 1994) at p13. An
appellant must show that the exercise
of the Court's sentencing discretion has
miscarried.
- The same principles apply to the sentencing of aboriginals as these which
apply to non-aboriginals. Since these principles allow for ethnic,
environmental and cultural matters to be taken into account,
the actual
disposition of an aboriginal offender may be different from that of a
non-aboriginal; see Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at p326 per Brennan J,
and R v Iginiwuni (unreported, Supreme Court (NT) (Muirhead J), 12 March
1975), at pp23-5. For example, it
is notorious that in many aboriginal
communities alcohol abuse to a significant degree is accompanied by violence,
frequently to
women. The remedy lies outside the province of the criminal
law, but where abuse of alcohol reflects the socio-economic circumstances
in
which an offender grew up, his drunkenness may be treated as a mitigating
factor.
- The task of the sentencing court always
is to assess, objectively, the
seriousness of the offence, with reference to the particular community in
which it is committed, and
to take into account the interests of the wider
community and the subjective circumstances of the offender. Its purpose in
doing
so is to endeavour "to make the punishment fit the crime, and the
circumstances of the offender, as nearly as may be", as Napier
CJ put it in
Webb v O'Sullivan (1952) SASR 65 at p66.
- To establish that this sentence was manifestly excessive, it was
desirable to provide this Court with sufficient relevant
statistical
information, if available, to show that 6 months imprisonment for such a
common offence as an 'aggravated assault' of
this type, is manifestly
excessive, in that it exceeds the 'tariff'. See Marshall v Llewellyn
(unreported, Supreme Court (NT) (Kearney
J), 3 May 1995) at p16, Gadatjiya v
Lethbridge [1992] NTSC 11; (1992) 106 FLR 265 at pp272-3 and Nabanardi v Minner (1992) 107 FLR
172 at pp179-180. The information supplied about the 4 cases is insufficient
for that purpose.
The third situation in which family hardship may mitigate a
sentence is where --- OTHER FAMILY CIRCUMSTANCES MEAN THAT
THE IMPRISONMENT OF ONE PARENT EFFECTIVELY DEPRIVES THE
CHILDREN OF PARENTAL CARE." (emphasis mine)
22. This approach was
sought to be rationalized in R v Wirth (1976) 14 SASR
291 at p294; Bray CJ said that the general principle is that if imprisonment
bears with special hardship on a prisoner - and it may do
so because of its
effect on his family - that fact may be taken into account in mitigation.
23. To establish one of the exceptions
set out in Nagas (supra) it is
necessary in my opinion that a defendant produce cogent evidence to the
sentencing Court to establish
that his imprisonment would impose exceptional
hardship upon his family, one which is considerably more severe than normal
for a
family where the father is imprisoned; or that his imprisonment would
effectively deprive his children of parental care. No adequate
evidence
directed to these matters was placed before the Court; Mr Dalrymple, in the
passage emphasized on p5, appeared to submit
to the Court that the appellant's
de facto wife might not be capable of looking after their 2 children on her
own, "because of her
drinking". Accepting that she might not be so capable
does not go far enough to establish that there were "particular circumstances"
in the appellant's family which demonstrated that an "exceptional" degree of
hardship would flow from the appellant's imprisonment,
or that it would
effectively deprive his 2 children "of parental care".
24. I note that his Worship did not expressly allude to
this submission in
his sentencing remarks. In that connection, as with the fact that his Worship
did not mention that the appellant
had not been sentenced to imprisonment
before, I bear in mind Mildren J's observations in Janima v Edgington
(unreported, Supreme
Court (NT) (Mildren J), 6 September 1995) at p5:-
"His Worship's remarks in sentencing were very brief. As
stated by Muirhead
J in Hill v Arnold (1976) 9 ALR 350 at
357, this court is appreciative of the difficulties and
pressures under which Magistrates are working, but it is
important
that they give at least a succinct account of their
main reasons for decisions, especially when sentencing a
person to prison.
Nevertheless, remarks on sentence are not to be analysed as
critically as the words in a considered reserved judgment:
see
Jambajimba v Dredge (1985) 33 NTR 19, at 22 per Muirhead
ACJ; and AN APPELLATE COURT IS ENTITLED, WHEN CONSIDERING THE
EVIDENCE AND THE REASONS GIVEN, TO ASSUME
THAT THE MAGISTRATE
HAS CONSIDERED ALL MATTERS WHICH ARE NECESSARILY IMPLICIT IN
ANY CONCLUSIONS WHICH HE HAD REACHED: see
Bartusevics v
Fisher per Bright J." (emphasis mine)
25. See also R v Reiner at p106 per Bray CJ.
26. Clearly, his Worship stressed that the sentence should reflect the need
for personal and general deterrence.
He was not wrong to do so. I
respectfully agree with, and apply to the circumstances of this case, mutatis
mutandis, the observations
of the Chief Justice in Najpurki v Luker (supra) at
pp6-7, viz:-
"Until such time as it is demonstrated to me that people who
are minded to take up a weapon with a view to assaulting some
person with whom they have a grievance are not deterred by