Abbott v Burgoyne
[2003] NTSC 27
•28 March 2003
Abbott v Burgoyne [2003] NTSC 27
PARTIES:DOREEN ABBOTT
v
ROBERT BURGOYNE
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 57/02 (20211682)
DELIVERED: 28 March 2003
HEARING DATES: 20 March 2003
JUDGMENT OF: THOMAS J
CATCHWORDS:
CRIMINAL LAW - offences against the person - judgment and punishment - mitigating circusmtances justify the suspension of sentence on appeal.
REPRESENTATION:
Counsel:
Appellant:S O'Connell
Respondent: C Roberts
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Department of Public Prosecutions
Judgment category classification: C
Judgment ID Number: tho200315
Number of pages: 7
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAbbott v Burgoyne [2003] NTSC 27
No. JA 57/02 (20211682)
BETWEEN:
DOREEN ABBOTT
Appellant
AND:
ROBERT BURGOYNE
Respondent
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 28 March 2003)
This appeal is from a sentence of a magistrate imposed in the Court of Summary Jurisdiction at Alice Springs on 14 November 2002. On that date the appellant entered a plea of guilty to the following charge:
"On the 4th day of August 2002
at Alice Springs in the Northern Territory of Australia.
1. unlawfully assaulted Barbara Campbell:
AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:
(i)That the said Barbara Campbell suffered bodily harm.
(ii)That the said Barbara Campbell was threatened with an offensive weapon, namely a tent pole.
Contrary to Section 188(2) of the Criminal Code."
The learned stipendiary magistrate imposed a sentence of one month imprisonment.
The Amended Grounds of Appeal are as follows:
"Ground 1
That the Stipendiary Magistrate erred in that he failed to give adequate weight to the Appellant's personal circumstances in particular her age, gender, contribution to the community, lack of relevant prior convictions and punishment received from another authority.
Ground 2
That the said sentence imposed by the learned Stipendiary Magistrate was in all the circumstances manifestly excessive.
Ground 3
That the Stipendiary Magistrate erred in that he failed to properly consider whether the sentence of imprisonment should have been suspended."
The facts in support of the charge are as follows (tp 2 – 4):
"… at about 4:30 pm Sunday, 4 August 2002 the defendant was at home and at this time a vehicle arrived to take her to Traeger Park. The defendant armed herself with a hollow metal tent pole - - -
…..
about 3 foot long.
HIS WORSHIP: What, at home?
MR DIXON: Yes, before she left.
HIS WORSHIP: Did she say why?
MR DIXON: It's to do with – yes, she attended Traeger with the intention of involving herself in a dispute involving a family member.
HIS WORSHIP: Yes.
MR DIXON: At about 4:45 pm the defendant arrived at Traeger Park and approached the victim. As the victim turned away from her the defendant struck her on the back, once, with the tent pole.
……..
MR DIXON: The victim broke away and made her way to a nearby bus and left the area in fear of her safety. As a result of the combination of this assault and another alleged assault the victim suffered – was required to attend the hospital for treatment. Her back and sides became stiff, bruised and painful.
HIS WORSHIP: Yes.
MR DIXON: And she had no permission to assault the victim.
HIS WORSHIP: So, what are we talking about? A one blow - - -
MR DIXON: One blow across the back.
HIS WORSHIP: - - - to the back with the tent pole.
MR DIXON: That's exactly right, Your Worship."
These facts were agreed by counsel for the defence and the offence found proved.
The record of prior convictions was tendered to the Court of Summary Jurisdiction. The appellant has two prior convictions for offences of drive exceed .08, the last one being recorded on 28 May 1996. She has no prior convictions for any offence of violence.
Counsel who represented the appellant in the Court of Summary Jurisdiction made some detailed submissions as to the circumstances of the offence and matters relevant to the personal circumstances of the appellant. These matters were not subject to challenge. The offence occurred on the day of the football final at Traeger Park. The appellant was at home asleep when she was woken by her daughter who presented with a sprained and swollen hand, some injuries to the face, a black eye and some grazes. The appellant's daughter told her that the injuries had been inflicted by Barbara Campbell during the course of an argument. Barbara Campbell is the victim in the offence committed by the appellant. The appellant became distressed at the sight of her daughters injury. She accompanied her daughter to the football ground. She had with her a tent pole. There were words spoken between the appellant and Barbara Campbell who scratched the appellant on the head. The appellant then "whacked" the victim on the lower back or upper backside with the tent pole. There were a lot of people around. It was not a full swing or with the use of full force. The submission made to the learned stipendiary magistrate was that the appellant is not a fighting woman or one quick to anger, that it was an unusual incident for her.
The appellant has been banned for life, by the relevant authority, from the Traeger football ground following this incident. This is a matter of considerable distress to her as she is a keen follower of the game of football.
The appellant is an Arrente woman, 45 years of age. She has had a variety of jobs as a housemaid and kitchen hand after leaving school at the age of 15. She married and has five children now aged between 18 and 26. She trained as a health worker at Batchelor College and obtained her qualification as a health worker in 1997. She has had various positions as a health worker both in Alice Springs and in South Australia. She has also worked as a bank liaison officer at Tangentyre Council. In addition she has worked for the Council on the Night Patrol. In this capacity she works closely with the Alice Springs Police Service. She assists young people and people with problems and tries to maintain a peaceful environment and often has young people stay at her home if they come to her looking for assistance. Two references concerning the appellant were tendered they relate to her work on the Night Patrol and the contribution she is making in that regard.
In sentencing her to a term of one month imprisonment, the learned stipendiary magistrate took into account the appellant's age, her previous good character, her distress at seeing her daughter's injury and her contribution to the community, particularly through her work on the Night Patrol.
The learned stipendiary magistrate also took into account, as he was entitled to do, that this act of assault was premeditated and that the appellant had behaved as a vigilante in administering a redress for the injury inflicted on the appellant's own daughter. The learned stipendiary magistrate was concerned with the aspect of general deterrence and that the best way to send the message to the community that people cannot arm themselves and go out to assault another person was to impose a period of imprisonment. I am not satisfied that in all the circumstances a sentence of one month imprisonment was manifestly excessive or that the learned stipendiary magistrate failed to give adequate weight to the appellant's personal circumstances in arriving at the sentence of one month imprisonment.
I then turn to deal with Ground 3.
Ground 3:That the stipendiary magistrate erred in that he failed to properly consider whether the sentence of imprisonment should have been suspended.
The learned stipendiary magistrate did consider a suspended sentence. He again referred to the aspect of general and specific deterrence and declined to suspend the sentence of one month imprisonment.
The learned stipendiary magistrate was required to take a two step approach in the sentencing exercise (Liddington v R (1997) 97 A Crim R 400) and in this case was required to consider the relevant factors again in deciding whether or not to suspend the sentence of imprisonment.
I have concluded that the learned stipendiary magistrate either failed to consider certain matters or did not give sufficient weight with regard to a number of circumstances of the offence and the offender relevant to the exercise of his discretion whether or not to suspend the sentence. These matters are as follows:
· There was reference to the victim having sustained another assault. There was no evidence as to what injury the victim suffered which was attributable wholly to this assault. It appears that the victim attended the hospital but was not admitted. Her combined injuries as a consequence of the two assaults was stiffness and bruising which were painful. What part of that is as a consequence of this assault is not known.
· The appellant was entitled to credit for her previous positive good character and the lack of any relevant prior convictions. In particular, that she was a 45 year old woman with no prior convictions for offences of violence.
· The appellant had been given a penalty in that she has been barred from Traeger Park for life.
· Her past achievements and contribution to the community.
In declining to suspend the period of imprisonment, I consider the learned stipendiary magistrate erred in the exercise of his discretion in that he did not give sufficient weight to the mitigating factors relevant to the appellant.
I would allow the appeal I confirm the conviction and sentence of one month imprisonment.
Pursuant to s 40(1) and (2) of the Sentencing Act, I suspend the period of imprisonment on condition the appellant be of good behaviour for 12 months.
Pursuant to s40(6) of the Sentencing Act I fix a period of 12 months from the date of this order during which the offender is not to commit another offence punishable by imprisonment if the offender is to avoid being dealt with under s 43 of the Sentencing Act.
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