Rodney Robertson v Kenneth John Flood [1992] NTSC 88; 111 FLR 177

shown aggression and I've informed these drunks that if they do not - if they don't settle down or if they assault me, they can expect to go to gaol. And also with that, having a police aide here - part of his job is for the community to know that if anybody assaults police, woman or child they can expect to go to gaol. And when you inform the drunks of that, what's in your view been the reaction?---Well, it's been favourable because a number of potential offenders know here that if they do assault police, they can expect to go to gaol and that's an ally; it's - well, it saves me being a punching bag on - every week." ASSAULT POLICE - COURT ACTION AND COMMUNITY ATTITUDES 18. As to warnings given to the community by the magistrates sitting at Ali Curung, Senior Constable Flood said that on a number of occasions prior to the appellant's offence he had been present in court and had heard the magistrate say that "if police are acting within a correct manner, that any person who assaults police can expect to go to gaol." Police Aide Larry gave similar evidence. I accept that this is the position. 19. Evidence was also given that on a number of occasions in the past, representatives of the council have approached the magistrates, in the presence of counsel for the accused person, and have indicated that the council wanted those persons imprisoned or "exiled" from the community for assaulting police. 'Exile' has been achieved by release on a bond containing a condition to this effect. The learned magistrate in his report confirms that he has been asked to "exile" offenders on occasions. The general attitude of the community, according to Mr Haywood, is that those who assault the police should be sent to gaol. His belief is that this attitude has in the past been conveyed to the magistrates by other elders. Mr Haywood generally agreed, in cross-examination, that it would be preferable for offenders, particularly those who had not been in trouble before, to be dealt with in accordance with tribal custom, but my impression of his evidence is that the community believes that it is better for the courts to deal with troublemakers, particularly those who assault police. I accept Mr Haywood's evidence, which was in general supported by the other Aboriginal witnesses (with the sole exception of Mr Dick Robertson Jambajimba). 20. One other matter of some importance to this case relates to the community's attitude to acceptance of responsibility by young persons for what they do. The appellant's uncle, Dick Robertson Jambajimba, explained that, as children, members of the Walpiri tribe are not strongly disciplined. They may be smacked, but the usual approach is to give "a lot of love." Mrs Joanna Kidd Nambajimba, the appellant's aunt, said that young children are brought up by their mothers, aunts or grandmothers. In the case of a male child, it is not until initiation that the male members of the family assume any significant responsibility for their upbringing. She maintained however that young children who were in trouble would be "given a hiding." According to the evidence, a male child is often initiated whilst in his early teenage years. Once initiated, he achieves the status of an adult, can marry, and is expected to accept full responsibility for his behaviour, subject to the guidance of an appropriate close relative (usually his father or an uncle). If he then misbehaves, that relative assumes some responsibility for his punishment. This might take the form of "growling"at the offender if the offence was minor; in other cases, the father or uncle might take him to an outstation; but in serious cases the offender would be taken bush by a number of his relatives and required to participate in special ceremonial instruction to teach him right from wrong. It does not appear that members of the immediate family usually impose any physical punishment, although Mrs Joanna Kidd Nambajimba maintained that in some cases, a young initiated offender would be "given a hiding." Whatever the form of punishment, in serious cases it appears that the punishment to be imposed is decided by the offender's family at a meeting called for that purpose. In general terms, my impression of the evidence is that little account is taken of the age of an offender who has been initiated in deciding upon the punishment to be imposed. In the case of the appellant, the evidence was that the appellant's family had discussed his case and decided that he ought to go back to gaol to finish the term of imprisonment imposed by the court; the community council had also reached the same conclusion; and that the only person who disagreed was Mr Dick Robertson Jambajimba. If he were to be imprisoned, neither the family nor the community would impose any other punishment upon him. 21. I should add that I was impressed by the way in which all of the Aboriginal witnesses gave their evidence. There was none of the usual shyness or reticence; nor would these witnesses provide answers to questions in order to please the questioner, not even in cross-examination and not even in response to leading questions. I suspect that the fact that the court was sitting in their community may well have contributed to this. There were some language difficulties, but in the end result I was able to reach a clear understanding of each witness' evidence. I accept the evidence of these witnesses as truthful, frank and honest. By way of example I was impressed by the patently honest evidence of the appellant's aunts, Joanna Kidd Nambajimba and Ena Rex Nambajimba, both of whom were called by the appellant, who were adamant that, in their respective personal opinions, the appellant should go to gaol. Ena even proffered this opinion in examination in chief. THE OFFENCES 22. The facts, as outlined to the Court of Summary Jurisdiction, were that on Thursday 13 February 1992, the defendant had been drinking moselle with others. Police were called to a disturbance at about 6.00 pm, which the appellant was involved in. When asked to quieten down, the appellant replied with obscenities: "You can't tell me what to do", and directed other obscenities toward police. He was then informed that he was under arrest. 23. Police Aide Larry then placed his right hand on the appellant's left arm. When this happened, the appellant, with a clenched right fist, struck Police Aide Larry to the right side of the jaw, momentarily stunning him. Constable Ryan came to the assistance of Larry and was held at arm's length and then kicked in the stomach by the appellant's right foot, causing him to stumble several metres backwards. 24. The appellant was then taken hold of and taken to the rear of the police van, when he struggled violently, flinging both his arms about then grabbing hold of the cage and refusing to get in the van. During all this time the appellant was calling obscenities out to the police. The appellant was eventually subdued and placed in a cell. He was subsequently bailed and processed the following morning. At no stage did the appellant have permission to strike either of the victims in any way. THE CIRCUMSTANCES OF THE APPELLANT 25. At the time of the offences, the appellant was aged seventeen, having been born on 6 October 1974. He was born in Ali Curung and raised in accordance with tribal custom. The appellant was initiated when he was fifteen. He recently married according to tribal custom. He was raised from an early age by his aunt Joanna Kidd Nambajimba, because his mother spent most of her time in Tennant Creek getting drunk in the hotels. His father died before he was initiated, and the responsibility for him then passed to his uncle Dick Robertson Jambajimba. He is a member of the Walpiri tribe. His uncle, who says he is the appellant's "second father" is strongly attached to him: "He's the only son I've got"; and considers himself responsible for his future: "He's on my hand now." The appellant is not known to be violent to his wife or family. 26. The appellant has little recollection of the events and was heavily intoxicated at the time. 27. He has completed primary school at Ali Curung and attended at an Aboriginal community college in Adelaide for a short time. It appears that his formal education is minimal. He has spent nearly all of his life at Ali Curung. He is unemployed, and his only interest seems to be playing football. 28. He has a number of prior convictions, all apparently for alcohol related offences. Some of these matters were dealt with in the Court of Summary Jurisdiction instead of the Juvenile Court due to a mistake as to his age. His first offence was on 14 November 1989 at Hermannsburg for bringing liquor into a restricted area. He was fined $350. On 11 September 1990 he was convicted of criminal damage and ordered to perform forty hours community service. As he did not comply with that order, on 4 June 1991 he was sentenced to seven day's imprisonment by the Alice Springs Juvenile Court. On 1 July 1991 he was convicted of assault and criminal damage, fined $300 on each count and ordered to pay $500 restitution. I was told that the person he assaulted was the proprietor of the Wycliffe Well roadhouse. On 4 December 1991 he was convicted of criminal damage, fined $400 and ordered to pay $15 restitution. I would regard the prior conviction for assault as the most serious of these prior convictions. 29. The appellant has been assessed by a probation and parole officer as unsuitable for community service work. THE RELEVANT SENTENCING PRINCIPLES 30. The relevant sentencing principles are not in doubt, but they do not all point in the same direction. 31. Firstly, it is appropriate to note that as I have, by consent, heard evidence called by both parties, this appeal is a de novo hearing calling for the exercise by this Court of original, and not appellate, jurisdiction. Accordingly, my function is to form my own independent opinion of the evidence on the material before me and give judgment as if I were sitting as a court of first instance: see Seears v McNulty (1987) 28 A Crim R 121 at 127-8. 32. The appellant was seventeen years of age at the time of this offence. In Gadatjiya v Lethbridge (unreported, 28/2/92) I had occasion to refer to a number of authorities relevant to the imposition of punishment for charges of assault, including those authorities which discuss imprisonment as an appropriate sentence in those cases where the offender is a youthful first offender. I will not repeat what I then said. Obviously the appellant is not a first offender. The prior conviction for assault is relevant, as it indicates that the appellant is more morally culpable than someone without any prior history of violence. That fact, and the fact that these offences occurred whilst the appellant was under the influence of alcohol, point towards the need to give some priority to the deterrent purposes of punishment. As to the appellant's age, there are again conflicting considerations. The appellant was not a juvenile at the time of the commission of these offences. Thus the special considerations which apply to juveniles do not apply to him. On the other hand, at seventeen, he is not, according to the Criminal Code, an adult. Yet, according to the values of his own community, he is to be treated no differently to a person who is an adult. In Yovanovic v Pryce (1985) 33 NTR 24 at 27-8, Muirhead ACJ said: "There is wealth of authority supportive of the view that the courts should be slow to imprison young offenders, that the courts should keep rehabilitation much in mind. Few of those experienced with the effects of imprisonment and the sentencing of young offenders can feel much satisfaction that a sentence of imprisonment is a constructive step qua the offender himself. But there is a very real danger that repeated exercises in leniency bring the law into contempt,

not only in the eyes of the offender, but in the eyes of the community. His Worship made clear reference to his responsibilities to the local community in his remarks on sentence. Unfortunately when previous efforts to rehabilitate by conditional release, community work orders and the like have failed, imprisonment remains the only option and there is always the hope that punishment may deflect the repetitive offender from the path he has taken

especially when other efforts have failed."

I consider that those observations (which were made in relation to a non-Aboriginal youth of seventeen years) are just as appropriate to an initiated Aboriginal young offender. They have a relevance also because the appellant has been assessed as unsuitable to perform community service. This still leaves a suspended sentence open as an option, including the possibility of a house detention order. He has not been assessed for the latter. Also, one must have regard to the general policy of leniency towards those Aboriginal offenders who are disadvantaged socially, economically and in other ways because of their membership of a deprived section of the community: see generally R v Minor [1992] NTCCA 1; (1991) 79 NTR 1 especially at 12. In this respect, it is also relevant to consider the effect that alcohol has had on the appellant's chances in life. His mother, through drunkenness, left him to be raised by one of his aunts. Until relatively recently, little was able to be done to relieve the community in which he was raised from its adverse consequences. That the effects of alcohol can in such circumstances be seen as a mitigating factor has on many occasions been accepted. In Juli (1990) 50 A Crim R 31 at 36-7, Malcolm CJ referred to the circumstances under which alcohol may be treated as a mitigating factor, and to the relevant authorities, including numerous instances of reported judgments of this Court, and I need not repeat those observations. On the other hand, there are competing considerations which to my mind, are more important in this case. The first, is the need to protect the community. The evidence establishes, conclusively in my view, that Ali Curung is a community which has a significant alcohol problem caused by a small minority of mostly young drinkers. The community has taken positive steps to protect itself from these people. It is a declared restricted area under the Liquor Act. The legal processes involved virtually require the community's support before such a declaration is likely to be made. It has, in cooperation with the police, instituted a system of night patrols. In consequence, the level of violent and other alcohol related crime towards members of the community has diminished; but that violence is now directed towards the police who are there to protect the community. This gives rise to the second consideration. In order to protect the police, the courts, through the magistrates, have indicated that assaulting a police officer invites a gaol sentence; so warnings have been given, quite properly in my view, and a number of persons have been imprisoned. Like offenders should receive like punishment. The third consideration is the need to protect the police. The evidence is clear that they are in need of protection of the courts. The assaults on Senior Constable Flood speak for themselves. The need to impose condign punishment on those who assault police working in remote Aboriginal communities was recently referred to by Kearney J in this Court in Kumantjara v Harris (unreported, 24/8/92). In that case, his Honour said: "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."
His Honour's remarks were in relation to aggravated assaults upon police officers, but in my opinion similar considerations apply to the offence of assaulting a police officer in the execution of his duty contrary to s153 of the Police Administration Act, in the context of a community like Ali Curung where actual violence has been used. Of course, it is necessary to bear in mind the remarks of King CJ, with whom Mitchell J agreed, in Yardley v Betts (1979) 1 A Crim R 329 at 332-34. Assaults vary greatly in seriousness, from the type of assault I dealt with in Halsey v Haymon (unreported, 10/6/92), where the appellant spat at a police officer, and a fine is appropriate, to more serious assaults where actual violence is used, and it is necessary to also bear in mind that the degree of injury suffered is not always a satisfactory measure of the offender's culpability. Similarly, offenders vary from those who are normally law abiding to those who are habitually violent. Consequently there can be no general judicial policy applying throughout the Territory that assault police is an offence where there is a presumption that the appropriate disposition is a gaol term. Each case has to be individually assessed. Nevertheless, in a place like Ali Curung, where there is serious actual violence upon police, gaol will often be appropriate because of the need to protect the police and maintain that community's protection; a fortiori, in those cases where the assaults are aggravated because they are committed in company with others or where a weapon is used. (It is somewhat odd that s188(1) of the Criminal Code imposes a maximum penalty of one year's imprisonment for common assault, and a maximum of five years' imprisonment if an assault is committed upon a person doing an act in execution of his duty or if the person is a public servant acting in the execution of his duty; yet the maximum penalty fixed by s153 of the Police Administration Act is only six month's imprisonment. Perhaps the reason for this attitude by the legislature is that assaulting a police officer is an occupational hazard for which they are trained to deal. However, in my opinion, those sorts of considerations have little weight in the context of a community like Ali Curung).
The final consideration is the attitude of the community itself. As I observed in R v Minor, supra, at 14, it is appropriate for the court to take into account the special interests of the community of which the offender is a member, and to take into account the wishes of that community so long as they do not prevail over what might otherwise be a proper sentence. By this I meant that a court would not be justified in imposing a sentence more harsh than is otherwise appropriate, merely because that is the wish of the community. In this case, the community's wish is that the appellant should complete the terms of imprisonment fixed by the learned magistrate. In those circumstances, the community's attitude is not helpful to the appellant. CONCLUSIONS
Bearing these matters in mind, and making due allowance for the appellant's plea of guilty, I consider that the proper sentences which ought to be imposed for these offences is a term of imprisonment. The assaults were accompanied by considerable violence on both the officers concerned, the appellant was heavily intoxicated and was involved in ma disturbance which the police were called upon to settle. Situations like this are potentially volatile. The appellant has a prior conviction for assault, and is unsuited to community service. I am not persuaded that home detention is a feasible option to someone living at Ali Curung who is unemployed. The conditions of that kind of confinement would invite a breach. I have considered whether the sentences should be suspended, but in all the circumstances I consider that, an actual term of imprisonment is necessary to deter others, as well as the appellant, from committing this kind of offence. Although the appellant is only seventeen years of age, he is not yet of an age where he is lawfully permitted to be supplied with liquor, and I bear in mind that the community is rightly concerned with the affects of alcohol on its young people, the need to discourage young people from getting violent when intoxicated and the fact that many of trouble makers in the community are in fact young drinkers.
I am unable to see why the assault on the police aide should have attracted a sentence by the learned magistrate of one month and yet the assault on Constable Ryan three months' imprisonment. To my mind, both assaults were equally serious and the same penalty should have been imposed in respect to both, and these sentences should have been ordered to be served concurrently as they arose out of the same set of circumstances. Having regard to the total conduct involved as well as of all the other matters to which I have referred, the fact that no serious injuries were sustained and no weapon was used, I consider that a term of imprisonment of two months is the appropriate sentence. I have power pursuant to s177(2)(b) of the Justices Act "to mitigate or increase any penalty" when hearing an appeal. No submission was made by the Crown that I ought to take that course in relation to the assault on the police aide and neither party made submissions on the point. I therefore do not consider it appropriate that I take that course. Having regard to the fact that the appellant has already served five weeks and four days of the original sentences imposed, I will frame the sentences so that he will now only have to serve the remainder. Accordingly, the appeal in relation to the sentence of one month for unlawfully assaulting Police Aide Ronnie Larry is dismissed. The appeal in relation to the sentence of three months' imprisonment for unlawfully assaulting Constable Paul Ryan is allowed and the sentence in respect thereof is set aside, and in lieu thereof I substitute a term of two months'imprisonment concurrent with the sentence imposed by the learned magistrate in respect of unlawfully assaulting police aide Ronnie Larry.

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Rodney Robertson v Kenneth John Flood [1992] NTSC 88; 111 FLR 177 (29 October 1992)

Parties

Legislation Cited (2)

Cases Cited (1)