Simon v Garner [2007] NTSC 33

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Katherine

[1] On 7 November 2006 the appellant was sentenced to imprisonment for a period of five months after pleading guilty to one count of aggravated unlawful assault. The circumstances of aggravation were that the victim suffered bodily harm and that the victim was unable to defend himself. The maximum penalty for the offence is imprisonment for five years.

[2] The appellant relied upon only one ground of appeal, namely that the learned sentencing magistrate failed to consider home detention as a sentencing option. At the commencement of the hearing this morning leave was granted to add a ground of appeal that the learned magistrate failed to consider the appellant's prospects for rehabilitation.

[3] The circumstances of the offending were not in dispute. On 1 July 2006 the appellant attended at the Borroloola Hotel and consumed a substantial amount of alcohol. At about 10 pm that evening he left the hotel and, as he did so, observed his victim, Mr Shane Sluggett, walking past the front of the hotel. The appellant approached Mr Sluggett at speed and punched him to the face causing him to fall to the ground and bleed from his wounds. At the time the appellant was wearing boots and he moved back and kicked Mr Sluggett in the face with what was described as a "football action" as he lay on the ground. The kicking to the face caused the victim further injuries. The appellant then, somewhat bizarrely, picked the victim from the ground and started to hug him. He then walked away.

[4] The appellant was unable to explain his conduct other than to point to his level of intoxication. There was no suggestion that he had any particular animosity towards Mr Sluggett. Counsel submitted to the learned sentencing magistrate that the offending was "something that Mr Timothy is sort of grappling with, he still doesn't provide any particular reason, or has no understanding of why he took these actions on this day". The reference to Mr Timothy I take to be a reference to Mr Timothy Simon.

[5] As a result of the assault Mr Sluggett suffered a large cut above the left eye which required three or four stitches, a broken nose, severe bruising to both eyes resulting in the left eye being shut. The victim lost vision in that eye for about three days. He also suffered associated sinus problems and chronic headaches for a period of time. In his victim impact statement Mr Sluggett indicated that he had lost about $700 in wages. His injuries left him in severe pain and he described "waking during my sleep regularly crying in pain". He was distressed because he did not know whether he would have permanent damage to his eye and he had trouble with his vision for a period of about three weeks. At the time of sentencing he continued to have pain from the scar tissue over his eye. He described a change in his social life, becoming more reclusive and feeling "very vulnerable and nervous about venturing too far from home".

[6] Counsel who appeared on behalf of the appellant at the sentencing hearing acknowledged that the offence was serious and that a sentence of actual imprisonment would not be unexpected. His submission was that the court should consider wholly suspending the sentence.

[7] By way of mitigation it was submitted to the learned sentencing magistrate that the appellant was aged 25 years. He was married with children and had been working and living on West Island. His work was under the CDEP scheme. It was submitted that he demonstrated some remorse in that he immediately hugged the victim after the assault. As I observed to counsel, the conduct of the appellant in hugging the victim does not necessarily suggest remorse. It only serves to emphasise the unusual nature of his behaviour. Further, in mitigation, it was submitted that the appellant desisted from the assault of his own volition and he subsequently pleaded guilty to the offence.

[8] The appellant had one prior conviction for aggravated assault for which he was sentenced to imprisonment for a period of six months. The sentence was wholly suspended. That conviction was not a prior conviction for the purposes of the Sentencing Act because, although the offence date was 17 February 2006, the conviction occurred on 6 September 2006, ie subsequent to the date of the offending with which the Court of Summary Jurisdiction was concerned and with which I am now concerned.

[9] In sentencing the appellant the learned sentencing magistrate noted that the situation was unusual in that no reason had been put forward for the assault and there was no explanation as to why, at the age of 25, the appellant had committed two extremely serious assaults within a relatively short period of time. He noted that the offending appeared to be random and that it came "totally out of the blue". He identified a concern that "anyone could be a victim of this man". In those circumstances his Honour thought that deterrence was a significant matter in the sentencing process. He went on to say:

"I do think the seriousness of this offence in itself is such that I have to impose a sentence of imprisonment and I can see no reason to suspend this sentence. I will give him obviously a discount for

[10] He therefore reduced the proposed sentence by one month on account of the plea. His Honour then imposed a sentence of five months imprisonment, stating that he saw "no reason to suspend any part of it".

[11] Counsel for the appellant submits that a term of actual imprisonment should be the sentencing option of last resort and noted that courts must always consider home detention orders as a real alternative to short sentences of actual imprisonment: Ross v Toohey [2006] NTSC 92. Counsel submitted in writing that there did not appear to be any impediment to the appellant being ordered to serve his sentence on home detention should he have been assessed as suitable. However, subsequent inquiries by counsel have indicated that an order for home detention may not have been available in the area in which the appellant lived.

[12] A review of the transcript makes it clear that counsel for the appellant did not raise the issue of a home detention order and no home detention suitability report was requested by the learned sentencing magistrate. The failure of counsel for the appellant to raise the issue may have given rise to an assumption that counsel had taken instructions and that the appellant was not a suitable person for the provision of a home detention order because of the place at which he lived or because he does not consent to the order or for some other reason, for example, the information placed before his Honour that identified an intention on the part of the appellant to visit his wife at Doomadgee in Queensland "for a period of time", described as "some months": Ross v Toohey [2006] NTSC 92 at [19]. More importantly, the mere fact that the prospect of a home detention order was not raised before his Honour does not mean that all sentencing options were not considered by him. It is to be assumed that magistrates are well aware of the sentencing options open to them. The reasons for sentence delivered by the learned sentencing magistrate on this occasion were ex tempore and it should not be inferred that, merely because he failed to specifically mention a particular sentencing option, other than immediate imprisonment, he did not consider all of the options: Kuiper v Brennan [2006] NTSC 54 at [33]. As Kearney J observed in Wanambi v Thompson [2002] FCA 1080; (1994) 120 FLR 243 at 264:

"It is not the duty of a sentencing court to set out in detail, or in general terms, each and every disposition available in a given case, and then to explain why and on what basis that disposition is or is not made. It is presumed that a court in exercising its sentencing discretion will keep the alternative dispositions in mind in assessing what is the appropriate disposition for the case and offender under consideration."

[13] In the present matter the learned sentencing magistrate clearly regarded the sentence of a term of actual imprisonment as being an appropriate response to the seriousness of the offending. He specifically addressed the issue of whether he should suspend any part of the sentence and concluded that he saw no reason to do so. In my view his Honour has made it clear that in his opinion any sentence less than an actual term of imprisonment for five months was not warranted. The complaint is that his Honour did not make reference to the prospect of the sentence being suspended pursuant to a home detention order. I see no error in the approach adopted by the learned sentencing magistrate and I reject this ground of appeal.

[14] In relation to the complaint that his Honour did not consider the appellant's prospects for rehabilitation I again note that the sentencing remarks were ex tempore and delivered immediately after the submissions of counsel were completed. In those submissions his Honour had been taken to the matters of mitigation to which I have referred. The matters were fresh in his mind. The mere fact that a magistrate in ex tempore sentencing remarks does not repeat what has been put immediately before does not mean those matters were not taken into account: Janima v Edgington (NTSC 36 of 1995). In the circumstances of this matter there is nothing to suggest that his Honour did not consider the matters of mitigation placed before him and the appellant's prospects for rehabilitation. The focus of his sentence was the need for deterrence in light of the seriousness of the offending. He noted the failure of the appellant to provide any explanation for his extraordinary conduct and he expressed concern that the offending may occur again. That was plainly a legitimate concern in the circumstances. I reject this ground of appeal.

[15] The appeal must therefore be dismissed.