Blitner v Ganley - [2015] NTSC 84

Blitner v Ganley [2015] NTSC 84
PARTIES:BLITNER, Andrina
v

GANLEY, Carney

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 39 of 2015 (21508818)
DELIVERED:  14 DECEMBER 2015
HEARING DATE:  14 DECEMBER 2015
JUDGMENT OF:  RILEY CJ
APPEAL FROM:  OLIVER SM
REPRESENTATION:
Counsel:
Appellant:S Karples
Respondent:  D Dalrymple
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    C
Judgment ID Number:  Ril1514
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Blitner v Ganley [2015] NTSC 84

No. JA 39 of 2015 (21508818)
BETWEEN:

ANDRINA BLITNER
Appellant

AND:

CARNEY GANLEY
Respondent

CORAM: RILEY CJ
REASONS FOR JUDGMENT
Ex Tempore
(Delivered 14 December 2015)
Introduction

On 11 June 2015 the appellant was sentenced in the Court of Summary Jurisdiction to imprisonment for a period of 18 months for the offence of aggravated assault. The sentence was suspended on the rising of the court and the appellant was placed under supervision for a period of 12 months.
The appellant appeals against the sentence principally on the ground that it was manifestly excessive.
The Offending
The circumstances of the offending were not in dispute. The appellant had attended the Centrelink office in Katherine on 19 December 2014. She became engaged in a heated argument with a member of her family. The member of the family drove away leaving the appellant in an angry state. The victim came by at that time. She was known to the appellant having previously had a relationship with the appellant’s husband. There was some animosity between them. The appellant took a knife from her handbag, held the knife in front of her and walked to where the victim stood some 10 metres away. The appellant made repeated forceful stabbing motions at the victim and, when the victim held her hands up in a defensive movement, the knife sliced into the palm of her hand. The appellant immediately stopped the attack and walked away.
The victim suffered a deep laceration to the palm of her left hand. She was taken by ambulance to Katherine Hospital and then medically evacuated to Royal Darwin Hospital where she underwent surgery. Fortunately no structural damage was caused. However the victim had to wear a cast on her hand for some time. Contrary to the submission of the Appellant this was clearly physical harm for the purposes of the Sentencing Act 1996 (NT).
The sentencing magistrate observed that, unusually, alcohol was not involved in this offending and that it arose out of the appellant’s “high level of anxiety”.[1] Her Honour noted that the appellant had been diagnosed with post-traumatic stress disorder following a “very tragic and damaging upbringing”[2] including being the victim of a sexual assault at a young age. Her mother was an alcoholic and violent and the appellant lived on the streets from about the age of 13 years until taken in by an aunt when she was about 15 years of age. Her Honour was informed that at the time of sentencing the appellant weighed 38 kg when her weight should have been in the region of 65 kg.
The appellant had been a heavy drinker but she and her partner had made a decision to give up drinking. They had not consumed alcohol for a period of five years. She was seeking appropriate assistance for her stress disorder and she had strong family support.
The appellant had a prior conviction for assault upon a police officer from August 2003. As a consequence the offending of December 2014 was caught by the mandatory minimum sentencing provisions of the Sentencing Act 1996 (NT) which required the court to impose a minimum sentence of 12 months actual imprisonment[3] unless the exceptional circumstances exemption applied.[4] Her Honour found that exceptional circumstances existed and sentenced the appellant to imprisonment for 18 months suspended on the rising of the court for a period of 12 months on various conditions.
The appeal
The appellant appeals on three grounds namely:
(a)     the sentence was manifestly excessive in all the circumstances of the case,
(b)     the magistrate took as a starting point a sentence of imprisonment that was not proportionate to the objective seriousness of the offending, and
(c)     the magistrate failed to give sufficient weight to the mitigating factors arising from the appellant’s personal circumstances in setting the head sentence of imprisonment of 18 months.
The principal ground of appeal is the allegation of manifest excess and the other grounds were argued in support. The third ground complains of the weight accorded by the sentencing judge to particular factors in the exercise of the sentencing discretion. As has been recently observed by the Court of Criminal Appeal in Noakes v The Queen[5] such questions ought properly be viewed as particulars of the ground asserting manifest excess. In DPP v Terrick; DPP v Marks; DPP v Stewart;[6] the Victorian Court of Appeal said:
The proposition that too much – or too little – weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy – or, in a prisoner’s appeal, manifest excess – is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible – or necessary – for the appeal court to reach a conclusion on that question.
The sentencing magistrate was provided with detailed written submissions, which were supplemented by oral submissions, detailing the mitigatory aspects of the case. Reading the sentencing remarks it is readily apparent that her Honour took into account all of those matters and made either direct or indirect reference to them. The complaint of the appellant goes only to the weight accorded those matters raised in mitigation.
The principles applicable to an appeal claiming manifest excess are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. It must show that the sentence was clearly and obviously and not just arguably excessive.[7]
The offending was serious. It involved an unprovoked attack upon the victim with a knife. The victim was not part of any argument and just happened to be nearby when the appellant became angry with a member of her own family. The appellant was already in the possession of the knife which, she acknowledged, was carried for her protection. This was not a case where the offender grabbed a knife which happened to be within reach. The appellant had possession of the knife anticipating it may be needed for some violent purpose and she recovered it from her handbag in order to use it. The introduction of a weapon into any argument is an aggravating factor. Knives are very dangerous weapons. The appellant used this knife by making “repeated forceful stabbing motions at the victim”.[8] The injuries occurred when the victim held her hands up in a defensive motion. There was no suggestion that the victim was fighting back or that she was a threat of any kind to the appellant. She was vulnerable and defenceless at the time. Having caused the injury to her victim the appellant did not seek to assist her but rather walked away and went about her business. She did not demonstrate any concern for her victim and did not demonstrate any remorse.
Although there were powerful mitigating factors regarding the personal circumstances of the appellant, the offending was a serious example of offending of its kind. In my opinion the sentence was not manifestly excessive, indeed, and with respect to her Honour, I thought the sentence was merciful and appropriate in all the circumstances.
No error on the part of the sentencing magistrate has been identified. The sentence is not manifestly excessive. The appeal is dismissed.

[1] CSJ Transcript dated 11 June 2015, p 14.

[2] Ibid.

[3] Sentencing Act 1996 (NT), s 78DA.

[4] Sentencing Act 1996 (NT), s 78DI.

[5] [2015] NTCCA 7 at par [15].

[6] (2009) 24 VR 457 at p 459-460.

[7] Whitehurst v The Queen [2011] NTCCA 11 at par [12].

[8] CSJ Transcript dated 11 June 2015, p 14.