McCarthy v Trenerry [1999] NTSC 29

sentenced to imprisonment for eight months, that term to be suspended after

she had served one month, a period of two years being fixed for the

purposes of s40(6) of the Sentencing Act 1996 (NT). The appeal is against

sentence, but no specific error is assigned to the learned Magistrate beyond

grounds relating to the relative weight he attached to various factors in the

sentencing equation. She claims that the sentence was manifestly excessive.

In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, Stephen J at p519 said:

"The constant emphasis of the cases is that before reversal an

appellate court must be well satisfied that the primary judge was

plainly wrong, his decision being no proper exercise of his jud icial

discretion. While authority teaches that error in the proper weight to

be given to particular matters may justify reversal on appeal, it is

also well established that it is never enough that an appellate court,

left to itself, would have arrived at a different conclusion. When no

error of law or mistake of fact is present, to arrive at a different

conclusion which does not of itself justify reversal can be due to

little else but a difference of view as to weight: it follows that

disagreement only on matters of weight by no means necessarily

See also the extracts from Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at p534 in

Gronow. Notwithstanding the differences in the jurisdiction there under

consideration and this, it seems to me that those remarks are nevertheless

It is sought to introduce evidence upon the appeal (s176A Justices Act 1928

(NT)). I will return to that after a short review of the circumstances taken

into account by his Worship when sentencing the appellant.

As to the circumstances of the offence, his Worship reiterated the admitted

facts. The appellant was walking down a Darwin street when she and other

people with her encountered Ms Hawthorne. It was in the early hours of

New Year's Day, and the appellant was affected by alcohol. Ms Hawthorne

hailed either the appellant or the group, of which she was a part, with a

whistle and wished everyone a happy New Year. The appellant seems to

have interpreted the whistle and wish as being sarcastic in some way

because she believed that Ms Hawthorne, who had previously been one of

her oldest and best friends. to have had an affair with the appellant's fiancee

about two years previous to these events. (In the meantime, the appellant

had suffered something in the nature of a nervous breakdown and left

Darwin, she had overcome her difficulties and had returned, undertaken

studies and obtained a job as a mental health worker.) The appellant's

response to the whistle and call from Ms Hawthorne was to go to her and

punch her "really hard" in the eye, which punch smashed her spectacles and

caused injury to her face. The attack continued with the appellant

continuing to hit Ms Hawthorne around the face even when she had gone to

ground. The appellant was physically restrained from continuing the

assault, but even after that she returned to the fray and continued to belt Ms

Hawthorne. Another person may have joined in that attack. The appellant

The victim suffered what his Worship described as "really horrific injury,

especially the injury to her eye" evidenced in photographs which he saw.

She required specialist treatment to protect the eye. Her eyesight was

completely recovered by the time of the hearing. His Worship viewed the

bodily harm which had been caused as being towards the top of the range.

His Worship spoke of what he had observed as a Magistrate regarding the

noticeable increase in the numbers of assaults coming before the Court of

Summary Jurisdiction committed by women, where alcohol had played a

significant part, and assaults taking place in public streets. He indicated

that there seemed to be very little reason to treat assaults by women in the

circumstances of the case before him any differently than assaults by men.

He said that the assault was a serious disturbance of the peace of the

As to the circumstances of the offender, his Worship noted that she was 24

years old, the mother of two children, aged five and two years and that she

was then pregnant, the child being expected at the end of August, three

months or so ahead of the date upon which she was sentenced. He noted

that after the "bad patch" which occurred after the nervous breakdown she

had gained qualifications in doing extremely useful work. His Worship

referred to the very favourable references which were before him, and noted

that the appellant thought there may have been some justification for her

attack. She had not previously offended, the nature of the offence would

seem to be out of character and she had pleaded guilty at the first

practicable opportunity. Her readiness to give evidence in the case

concerning the other person who may have joined in the assault was noted as

had been her previous cooperation with police. In his Worship's view, the

appellant was remorseful for "this vile and destructive assault", and added

that there was "as much in your favour as there could be".

His Worship paid regard to a number of decisi ons of this Court on appeal

from sentences imposed in the Court of Summary Jurisdiction.

His Worship was firmly of the view that the appellant and others in the

community should understand that the type of assault committed was

"absolutely intolerable" being destructive and hurtful to the victim, those

who see the assault happening and those who see the victim afterwards. The

learned Magistrate was clearly and emphatically of the view that personal

and general deterrence were to be given significant weight.

In conclusion, his Worship said that only a substantial prison sentence could

reflect the abhorrence of the community for such an assault and that the real

question was whether, given the matters weighing in favour of the appellant,

it would be proper to suspend all of that sentence or a great majority of it.

In the result, the sentence of eight months imprisonment to be suspended

His Worship expressly paid regard to all of the matters which were urged in

favour of mitigation of penalty on behalf of the appellant in the hearing

before him. He was not wrong to categorise the seriousness of the assault

and the circumstances in which it occurred as he did. I am not satisfied that

It will be noted that at the time of sentencing the appellant was pregnant and

that the baby was due towards the end of August. It is sought to place

before this Court evidence from a doctor that the baby was born on 1 June,

somewhat prematurely, was doing well at the end of November 1988 and

was then being breast-fed. There was no evidence as to the position in that

regard at the time the matter came on for hearing in this Court on 15 March.

The infant was then about eight and a half mon ths old. The doctor offered

the opinion that it is not ideal for a baby to be separated from its mother,

and that the prison environment would not be an ideal one for the baby.

That, of course, is accepted, it was hardly a matter for evidence.

Section 176A provides that unless it is satisfied that the evidence, if

received, would not afford a ground for allowing the appeal, the Court shall

it appears to it that that evidence is likely to be

credible and would have been admissible in the proceedings

from which the appeal lies on an issue which is the subject of

it is satisfied that the evidence was not adduced in

those proceedings and there is a reasonable explanation for the

The proposed evidence is likely to be credible. It would have been

admissible in the proceedings from which the appeal lies if the event had

taken place. Had the event taken place prior to the sentencing, then it would

go to an issue the subject of the appeal, that is, the severity of the sentence.

The evidence was not adduced in those proceedings because the event had

This is not a case such as Smith v Torney (1984) 29 NTR 31 or Bates v

Haymon (1988) 90 FLR 55 where the evidence sought to be introduced upon

appeal was evidence which could have been placed before the Court at first

instance. Here the evidence is of an event after the appellant was before

that Court, but I do not consider that, of itself, is fatal to the appellant's

tender of the proposed evidence. It provides a reasonable explanation as to

why the evidence was not adduced before the Court of Summary

There is extensive authority to support the proposition that it is permissible

for a Court on appeal to have regard to events occurring after sentencing.

Although the decisions to which reference will be made did not arise upon

statutory provisions such as s176A, what has been decided in relation to

those provisions fall within the scope of the Territory statute.

Most of the cases have to do with events occurring after sentencing which

show the true significance of facts which were in existence at the time of

sentencing, for example, Smith, a decision of the Court of Criminal Appeal

of South Australia, (1987) 27 A Crim R 315 where King CJ at 316 said:

"The proper purpose of fresh evidence on an appeal against sentence

is to bring before the court facts which were in existence at the time

of the imposition of sentence, but were not known to the sentencing

judge or to explain facts which were before the sentencing judge so

That was a case to do with the appellant's ill health, a matter to which

reference was made in McDonald in the Court of Criminal Appeal, New

South Wales, (1988) 38 A Crim R 470. In similar vein, Jones, another

decision of that Court, (1993) 70 A Crim R 449 and in the Victorian Court

of Appeal see Morgan (1996) 87 A Crim R 104 and R v W.E.F. (1998) 2 VR

The limitation on the evidence of post sentence events which can be

received was demonstrated in Babic (1998) 2 VR 79. The appellant had

injured his back about two months after being sentenced and asserted that as

a result he had been in such pain as to be unable to cope with the everyday

rigours of prison life. At p257 Brooking JA, with whom Winneke P and

"an attempt to rely on an event after sentence as in itself showing

that the sentence has turned out to be excessive. The court cannot

(on the basis that the point is one of admissibility, not one of practice

in relation to the exercise of discretion) receive evidence of

subsequent events sought to be led for this purpose."

For cases in which evidence of events occurring after sentence are not

restricted to "ill health" matters see Rostom [1996] VicRp 60; (1995) 83 A Crim R 58.

In Queensland the Court of Appeal has held in R v Maniadis (1997) 1 Qd R

593 at 597 that evidence of events occurring after the date of sentence are

generally unlikely to show that the sentence imposed was unwarranted,

unless that evidence shows what the state of affairs was at the time the

I have referred to what fell from King CJ in Smith as to the distinction

between cases in which fresh evidence was given of facts which were in

existence at the time of sentencing or which put facts which were before a

sentencing Judge in a new light, on the one hand, and fresh evidence of

subsequent events, on the other. Malcolm CJ referred to that distinction in

Anderson (1997) 92 A Crim R 348 at 350 as did Steytler J at p360. With

respect, with that I agree. (Anderson is a particularly poignant case in

which the Court took into account the fact of serious illness suffered by a

The purpose of an appeal is to review the decision of the Court at first

instance in the light of the evidence before that Court. The qualified

provisions enabling evidence to be introduced on appeal must be related to

the time when sentence was passed, either to make up for a deficiency in

that evidence which could have been brought forward at that time, or to

better explain the evidence which was before that Court. That is the judicial

The evidence sought to be admitted in this case does not fall within the

rules. It is of a subsequent event, one that was anticipated, but not one

which puts the facts before his Worship in a new light. The fact before his

Worship was that the appellant was then pregnant. That matter was taken

into account by his Worship. It has now come to an end.

The evidence sought to be put forward under s176A of the Justices Act will

I note that in Babic at pp80-81, W.E.F. at p388 and Anderson at pp349 and

556 reference is made to the possible course of an application to the

executive arm of government in relation to events occurring after sentence

which cannot be taken into account by a court on an appeal.