Bukulaptji v The Queen

[2009] NTCCA 7

Bukulaptji v The Queen [2009] NTCCA 7

PARTIES:	KEVIN BUKULAPTJI
v
THE QUEEN
TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:	CA 13 of 2008 (20507179)
DELIVERED:	5 June 2009
HEARING DATES:	24 April 2009
JUDGMENT OF:	MARTIN (BR) CJ, THOMAS AND RILEY JJ
APPEALED FROM:	SOUTHWOOD J
CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST RESTORATION OF
SENTENCE

Requirement of s 43(7) of Sentencing Act – whether full restoration was unjust – breach of conditions – no new offending – disparity between nature of breach and time to be served – appeal allowed – new offence subsequent to breach proceedings – full restoration

Criminal Code s 69; Sentencing Act (NT) s 40, s 43, s 43(7)
Baird v R (1991) 104 FLR 113; Buckman (1988) 47 SASR 303; Davies v
Deverell (1992) 1 Tas R 214; Marston (1993) 60 SASR 320; Palliaer (1983)
35 SASR 569; R v Percy [1975] Tas SR 62; Wilson v Taylor (1997) 113
NTR 1, referred to
R v Fernando [2002] NSWCCA 28; Lawrie v R (1992) 59 SASR 400; R v

Vranic (NSWCCA, 7 May 1991, unreported), discussed

REPRESENTATION:

Counsel:

Appellant:	S Perera
Respondent:	J Karczewski QC

Solicitors:

Appellant:	North Australian Aboriginal Justice Agency
Respondent:	Office of the Director of Public Prosecutions

Judgment category classification: B

Judgment ID Number:	Ril0906
Number of pages:	20

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

AT DARWIN

Bukulaptji v The Queen [2009] NTCCA 7

No. CA 13 of 2008 (20507179)

BETWEEN:

KEVIN BUKULAPTJI

Appellant

AND:

THE QUEEN

Respondent

CORAM:  MARTIN (BR) CJ, THOMAS AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 5 June 2009)

Martin (BR) CJ:

1. On 2 January 2008 the appellant was sentenced to four years imprisonment,

   backdated to 22 February 2007, for the crime of unlawfully causing grievous

   harm. That sentence was suspended after the appellant had served

   15 months on conditions involving supervision.

2. The appellant was released from prison on 22 May 2008 with a balance of

   the sentence of two years and nine months imprisonment yet to be served.

   He immediately breached conditions of the suspension. On 10 November

   2008 the learned sentencing Judge restored the balance of the sentence and

   fixed a non-parole period of one year and five months.

3. The appellant accepts that part of the outstanding balance of two years and

nine months should have been restored, but appeals against the restoration
of the entire balance on the basis that the sentencing Judge erred in not
finding that it was unjust to do so.

1. The facts are set out in detail in the judgment of Riley J. Section 43(7) of the Sentencing Act required that the Judge restore the entire balance and

order that the appellant serve it unless the Judge was “of the opinion that it
would be unjust to do so” in view of all the circumstances that had arisen
since the suspended sentence was imposed. In the absence of an identifiable
error by the Judge, in order to succeed the appellant must persuade this
Court that the only reasonable conclusion available to the Judge was that, by

reason of circumstances which have arisen since the suspended sentence was
imposed, it was unjust to restore the entire balance. In other words, the

appellant must persuade this Court that it was not open to the Judge to reach the conclusion that it would not be unjust to restore the entire balance of the sentence held in suspense.

1. As Riley J has pointed out, there is a clear legislative policy underlying the

   provisions relating to suspended sentences and the consequences of breaches

of the conditions of suspension. I agree with his Honour’s observation that
it is important that the Court uphold the policy and not undermine the

integrity of the sentencing regime by failing to respond appropriately to

breaches of conditions of suspension.

1. The appellant was well aware of his obligations and of the existence of

sanctions for failure to comply with those obligations. Against the
background of the appellant’s previous disregard for court orders, upon

release the appellant made no effort whatsoever to comply with the
conditions of suspension. Immediately upon his release, the appellant
flagrantly ignored the requirement to report and reside on Goulburn Island.

It would have been a simple matter to report and obtain permission to leave

Goulburn Island for the purpose of attending the funeral of his mother. In

addition, the appellant could have reported from Milingimbi or returned to
Goulburn Island after an appropriate period of mourning at Milingimbi.

1. Against this background, there were only two factors which the appellant

could reasonably call in aid of his claim that it was unjust to restore the
entire balance of the sentence, namely, the fact that the breach did not
involve the commission of a further offence and the disparity between the

nature of the breach and the length of the balance to be served. While the
breach did not involve the commission of a further offence, it occurred

immediately the appellant was released from custody and without any prior

attempt to comply with the conditions of suspension. As the Judge found, it
was a “contumelious” and persistent breach.

1. As to the question of disparity, there was, undoubtedly, significant disparity

   between the nature of the breach and the period restored. However, viewed

   in the context of all the circumstances, I am unable to agree with the

   conclusion that this disparity was such as to place restoration of the entire balance beyond the range of the sentencing discretion. While the result of

   full restoration may seem to be a severe consequence, it is necessary to bear

   in mind the policy of the statutory scheme and the fact that the appellant

   breached his obligations immediately upon release in circumstances where

compliance with his obligations would not have interfered with his wish to
attend the funeral of his mother. Furthermore, the appellant made no
subsequent efforts to rectify his ongoing default. The appellant simply
continued a previous pattern of disobedience of court orders.

1. It follows from these reasons that I would not allow the appeal. It also

   follows that as the majority would allow the appeal, by reason of the matters

   to which Riley J has referred, I agree that on re-sentencing this Court should

restore the balance of two years and nine months. I also agree that a non-
parole period of one year and five months should be fixed.

Thomas J:

1. I have read the Reasons for Judgment prepared by Riley J. For the reasons

   he has expressed I agree the appeal should be allowed.

2. The re-sentencing of the appellant is complicated by the fact that the

appellant had, in fact, committed a further offence. This had not been
brought to the attention of the Judge at first instance.

1. The circumstances of the re-offending are outlined in the judgment of Riley J. Whilst it is certainly not a trivial offence, the level of offending is

considerably less serious than the offence of unlawfully cause grievous harm
which resulted in the original sentence of four years imprisonment
suspended after 15 months.

1. The magistrate who dealt with the further offending imposed a fine of

   $1,000. The fact the matter was dealt with by way of a fine rather than a

   prison sentence is a reflection of the level of seriousness of the offence. In

   particular, there was no actual physical harm inflicted on anyone. There

was also a reference to the possible need for some psychological or
psychiatric counselling.

1. In his reasons for sentence, the learned stipendiary Magistrate made the

   following comments:

   “Anyhow, Mr Bukulaptji, you are a person who had something to get
   off your chest; you got it off your chest in a really scary fashion.
   You waved this hammer around, you seemed to have uttered threats.
   Certainly the people at the store were worried about you, and some
   brave person was brave enough to take you on, take you outside, take
   the hammer off you, give that hammer back to the store, which made
   things a lot safer, and then that person or others were brave enough

   to talk you down and get you home again.

   I’ve got no reason to believe you ever really wanted to hit anyone
   with that hammer. You certainly wanted to make a big scene. And
   as Sergeant Marinov says, it’s really a high grade disorderly conduct.
   What makes the conduct of whoever it was who took this hammer off
   you particularly brave, is that you’ve got these convictions for
   assault, including a grievous harm charge and if these people know
   you well, they would know about that case and they’d know that you
   are potentially a very dangerous guy. But nothing happened on this

   occasion.

   These offences are always a nuisance for the community. They set a
   bad example, but I don’t think you’re the sort of man who can be
   used as an example. In return I can’t lock you up just to show other
   people they mustn’t do this sort of thing, and I can’t do that because
   – for that reason, because you’re a man who suffers at least some
   psychiatric disturbances, perhaps depression when you’re in gaol, but
   perhaps other mental disorders that have you hearing voices that
   other people don’t hear.

   I don’t know if any of that played a part in your crazy behaviour, but it’s not the behaviour of an ordinary sober person. There’s no suggestion you were drunk or intoxicated, stoned or anything like that, so maybe something was going on in your mind that’s not quite normal.”

[15]   The appellant does appear to have underlying problems with anger

management and depression that may need addressing.

1. I consider it would be unjust to restore the full sentence which is, in effect, the maximum penalty for the three breaches. Together they do not fall into

   the worst category of a breach. There are factors in his favour. It is now

   over four years since the commission of the previous offence of cause grievous harm. The sentencing Judge accepted that he was genuinely

remorseful for his offending on that occasion, he had apologised to his
victim and as the sentencing Judge noted “as between the offender and the
victim, matters are now resolved, they are finished”. A condition of his
suspended sentence was that “for a period of 12 months following his
release from prison the offender is not to consume or use alcohol or
cannabis and he is not to sniff petrol or use any other volatile substance”.
He was not affected by any substance at the time of the commission of the

re-offending. There is no evidence he had breached this condition.

1. Whilst it is important not to undermine the requirement that persons who are

sentenced comply with court orders, I consider that could adequately be
done by restoring 15 months of the sentence and fixing a non parole period

of eight months. This could be accompanied by recommendations that a
condition of his parole be an assessment as to his need for counselling and,
if so, making appropriate conditions of his parole the undertaking of such

counselling.

Riley J:

1. The appellant has been granted leave to appeal against an order restoring a

   partially suspended prison sentence previously imposed upon him.

2. On 2 January 2008 the appellant was convicted of the offence of having

unlawfully caused grievous harm to his victim, a male relative. The
offending occurred on 25 March 2005 when the appellant and his victim
were together at Milingimbi. They had been drinking kava, smoking
cannabis and sniffing petrol. During the course of the night the victim acted
in a manner which caused the appellant to become frightened. An argument

developed and the victim hit the appellant. The appellant then took a pair of

scissors which had been used for cutting the cannabis and chased after the
victim. He delivered a series of stab wounds to the victim with the scissors.
Others intervened but the appellant continued to chase after the victim and

stab him with the scissors. Eventually the two were separated and the
victim was taken to the local clinic where it was found that he had received
multiple stab wounds to the left and right middle back, to the left and right
shoulder area, to the rear of the left arm and left and right abdomen. He
also suffered a small laceration to the left cheek. The wounds were such
that had he not been provided medical assistance he would have died. As it

was, the victim was expected to make a full recovery.

1. At the time of the plea it was noted that the appellant and the victim had

   reconciled.

2. In sentencing the appellant the learned sentencing Judge described the attack

as a "grossly disproportionate response to the victim's conduct" involving
"the use of a weapon at night and it was a savage, sustained and unrelenting
attack and the victim has sustained very serious injuries." His Honour went
on to sentence the appellant to imprisonment for a period of four years to be
suspended upon conditions after he had served 15 months in prison. The
conditions of the suspension included that the appellant place himself under
the supervision of the Director of Correctional Services, that he obey the

directions of the Director and that "for a period of 12 months following his

release from prison [the appellant] is to reside on Goulburn Island and he is
not to leave Goulburn Island without the permission of the Director of
Correctional Services or his delegate."

[22]   In concluding his sentencing remarks the learned sentencing Judge informed

the appellant that it was important that he not reoffend. His Honour said

that if there was anything the appellant did not understand then his counsel

should explain those matters to him.

1. On 14 May 2008 the appellant was visited by a Community Corrections

   Officer at the prison and was advised of his obligations under the terms of

   the Order. He indicated that he understood what was required of him. He

was provided with a toll-free telephone number and directed to report on
27 May 2008. Following his release from prison on 22 May 2008 he failed

to report as required. The appellant says, by way of explanation, that he lost

the telephone number. However it was not suggested that he made any

effort to ascertain the telephone number or to communicate with his Parole
Officer in any way.

1. It was admitted that the appellant also breached the order by failing to reside

at Goulburn Island. In submissions placed before the learned sentencing
Judge it was explained that the appellant received news that his mother had

passed away at Milingimbi and he travelled to Milingimbi for funeral

preparations and the funeral proceedings. There was a traditional ceremony

in which he played a role. He did not obtain approval to travel to

Milingimbi and he did not return to reside at Goulburn Island as required by

the terms of his suspended sentence. At the time of his arrest on

5 November 2008, the appellant was still at Milingimbi with no apparent

intention of returning to Goulburn Island and having made no attempt to

communicate with his supervising officer.

1. In support of the appellant submissions were made to his Honour that this

was the first breach of a suspended sentence on the part of the appellant and
that "there seems to be a genuine misunderstanding as to conditions." The

learned sentencing Judge was advised:

“If one looks back on the sentencing remarks when he appeared in
court for this matter he was warned not to commit any further
trouble, and those were the main words that stuck out to him. He
tells me that he hasn't been drinking at all. He hasn't been smoking
any cannabis. ... He tells me that he stayed quiet, he was with family,
and to this day, your Honour, he is still in a state of grief as to the
death of his mother it really wasn't that long ago.”

1. On the basis of the information before the learned sentencing Judge it was

accepted that he did "stay quiet". There was no suggestion at that time that
the appellant had reoffended in any way.

1. It was not disputed that in addition to the explanation and warning provided

   to the appellant by his Honour, and in addition to any further explanation or

advice that may have been provided by his counsel, the appellant had,
shortly prior to his release from prison, received the benefit of advice as to
the terms and conditions of his suspended sentence from the Community

Corrections Officer. It was not submitted that this advice was in any way

deficient or that it did not address the requirement that the appellant stay at

Goulburn Island and that he report as directed. Whilst the appellant was

said to have limited education and was a person who lived a semi-traditional
life, the advice to the Court from the Corrections Officer that the appellant

understood what was required of him was not challenged.

1. In restoring the sentence the learned sentencing Judge noted that the

appellant had resided at Milingimbi in breach of the order from the time of
his release at the end of May 2008 until 5 November 2008. His Honour

described the breach as both persistent and contumelious and directed that

the unserved part of the suspended sentence, being a term of two years and

nine months, be restored. His Honour fixed a non-parole period of one year
and five months.

1. It was not submitted that his Honour applied the wrong test. The appellant

was unable to identify any particular error on the part of the learned
sentencing Judge. The principal submission was that on a proper
consideration his Honour should have formed the view that it would have
been unjust to restore the full sentence. The effect of the submission was

that the restoration of the whole of the unserved part of the sentence was a

grossly disproportionate response to the breaches.

1. The issue now to be determined is whether his Honour erred in failing to

conclude that the restoration of the whole of the sentence would be unjust in
all the circumstances.

The imposition of a suspended sentence

1. There has been no challenge to the original sentence imposed by his Honour.

   The sentence of imprisonment for a period of four years is to be regarded as

an appropriate and proportionate response to the original offending in the
circumstances which then prevailed. The sentence was partially suspended
pursuant to the provisions of s 40 of the Sentencing Act. That section

permits a court to make such an order "where it is satisfied that it is
desirable to do so in the circumstances". However, the court is not to

impose a suspended sentence unless the sentence of imprisonment (in this

case the sentence of imprisonment of four years) if unsuspended would be
the appropriate sentence in the circumstances having regard to the

provisions of the Act. In such a case the court proceeds by determining

what is the proper term of imprisonment to be imposed and then deciding
whether it would be appropriate or inappropriate to suspend the term of
imprisonment in whole or in part.[1] A principal aim in suspending service of

a sentence of imprisonment is to provide an inducement to the offender to
reform.[2]

The consequences of a breach

1. In the event of a breach of the terms of an order suspending a sentence of

   imprisonment the powers of the court are to be found in s 43 of the

   Sentencing Act. The section provides the court with the power to:

(a)	restore the unserved part of the sentence;
(b)	restore part of that sentence;
(c)	extend the operational period; or
(d)	make no order with respect to the suspended sentence.

By operation of s 43(7) of the Act the court is to make an order restoring the

sentence or part sentence held in suspense and order the offender to serve it "unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence and, if it is of that opinion, the

court shall state its reasons."

1. Section 43(7) discloses a clear legislative policy that the starting point for a

court dealing with a breach of a condition of a suspended sentence is that
the offender should serve the sentence which was suspended. The fact that

the sentence is suspended and hangs over the head of the offender provides

an inducement to the offender to comply with the terms of the order and
maintain a law-abiding life. The sanction for failure is the restoration of the
obligation to serve the suspended term of imprisonment. That being so a
court "will not lightly interfere with the ordinary consequence of a breach".[3]
For a court to fail to respond appropriately to breaches would be to

undermine the integrity of the sentencing regime and reduce the deterrent
impact of such sentences upon others.[4]

1. In R v Fernando5 Spigelman CJ cited with approval the following passage

   from the judgment of Lee J (with whom Gleeson CJ and Abadee J agreed) in

   R v Vranic[6]:

   “The commission of offences on parole demonstrates that the
   expectation of rehabilitation of the prisoner has not been realised and
   that through his own conduct the substantial mechanism designed for
   rehabilitation, ie parole has failed to achieve its purpose. The Court
   in such circumstances cannot proceed on the same expectation of
   rehabilitation that is open in other circumstances.”

2. Over the years there has been discussion in many cases of factors that may

   be considered relevant in determining whether it would be unjust to make an

   order restoring the sentence or part sentence held in suspense in a particular case. Discussion of earlier legislation is to be found in Baird v The Queen[7]. Some of the factors for consideration identified in that case and subsequent

   cases include:

(a)	the nature and terms of the order suspending the sentence;
(b)	the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;
(c)	whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good

behaviour;

(d)	whether the breach demonstrates a continuing attitude of disobedience of the law;
(e)	whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;
(f)	the length of time during which the offender observed the conditions;
(g)	the circumstances surrounding or leading to the breach;
(h)	whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;

(i)      whether the offender had been warned of the consequences of a breach; and

(j) the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach.

1. In the present case it would seem that the appellant had a warning from the

   learned sentencing Judge and also from a Corrections Officer as to the

consequences of a breach. The warning from the Corrections Officer came
shortly before the appellant was released from prison and must have been
fresh in his mind. The evidence suggests that he understood his obligations;

however he did nothing to fulfil those obligations at any time. His breaches

commenced soon after his release from prison. He did not make the initial report and he travelled from Goulburn Island without approval. The reason for leaving Goulburn Island may have been to attend the funeral of his

mother but he did not have to breach the conditions of the order to attend the
funeral. He merely had to seek permission. He chose not to do so. For a

period in excess of five months leading up to his arrest he did not return to

Goulburn Island. For the same period he did not report and he made no

effort to report.

1. The appellant was aware of the consequences of failing to comply with

orders of the courts. He had received the warnings to which I have referred.
In addition his criminal history reveals that he had previously been dealt

with for similar failures. In 2003 he was fined for breaching his bail
conditions. Later that year he was imprisoned for failing to comply with the
terms of a restraining order. In 2004 he was again fined for breaching his

bail conditions. In 2007 he was yet again fined for breaching his bail

conditions. It is apparent that on this occasion he simply ignored the terms of the order. His conduct reflected a continuing attitude of disobedience of the law.

1. On the other hand the breach was a conditional breach rather than a breach

constituted by reoffending. Whilst the nature of the breach evinced an
intention on the part of the appellant to disregard his obligations there was

no suggestion before the learned sentencing Judge that he had been other
than of good behaviour in the intervening period. He had not been involved

in any conduct of a violent kind and it was not suggested that he had been a

threat to the community.

1. Of significance in the present case is the length of the term of imprisonment

   that was restored, being for two years and nine months with a non-parole

   period of one year and five months. In my view, there is a gross disparity

   between the conduct which constituted the breach and the term of

   imprisonment to be restored. The disparity is such as to make the full

restoration of the suspended term of the sentence unjust in all the
circumstances. The appeal should be allowed.

Resentence

1. The appeal having been allowed it is necessary for this Court to resentence

on the basis of the circumstances as they exist at this time. Although some
of the following information relates to events which occurred prior to the
matter coming before the Supreme Court, the information was not placed
before the learned sentencing Judge. The Court has now been informed, and

it is not disputed, that on 6 November 2008 the appellant appeared in the

Court of Summary Jurisdiction at Darwin in relation to the offence of having

gone armed in public with a hammer without lawful occasion and in such a

manner as to cause fear to a person of reasonable firmness and courage contrary to s 69 of the Criminal Code. The fresh offending occurred on 24 October 2008 in a store at Milingimbi. The appellant became angry, took

a hammer from a shelf in the store and walked around the store waving the
hammer and yelling at the staff. He threatened to hit staff members with the

hammer. He refused to leave the premises and the store manager was forced

to close the store.

1. There was nothing in the material placed before the Court of Summary

   Jurisdiction to suggest that the appellant was under the influence of alcohol

   or any other intoxicating substance at the time of this offending. Prior to being sentenced the appellant underwent a psychological assessment as a

   result of which it was concluded that he did not suffer from a mental illness. reviewed by a psychiatrist at a later time. On 14 January 2009 the appellant pleaded guilty to the offence and he was fined $1000.

2. As the respondent submits, the recent offending is another example of the

appellant resorting to the use of weapons as a means of conflict resolution.
It is, in that sense, another offence of a similar nature to that which gave

rise to the suspended sentence. Fortunately on this occasion his conduct did
not degenerate into actual violence. The offending occurred just over five
months into the operational period of the original sentence and is conduct
cumulative upon the earlier breaches dealt with by the learned sentencing
Judge. Although the penalty imposed was a fine it could not be said that the

offending was trivial. The breach occurred in circumstances where the appellant acknowledged that, by reason of the warning from the learned sentencing Judge, he was fully aware of the consequences of reoffending.

Viewed in that light the offending was serious and provided further

confirmation that the appellant was disregarding his obligation to be of good behaviour. It demonstrated a continuing attitude of disobedience of the law.

Consistent with failures recorded in his criminal history his actions on this

occasion constituted yet another failure to honour the obligations he owed to
the courts.

1. In summary, the appellant is before the court in relation to three separate

   breaches of the terms of his suspended sentence. The first of those was the

   failure to report, a condition with which he has never complied. The second

was leaving Goulburn Island without permission and failing to return. Both
of those breaches occurred very shortly after his release from prison and
shortly after he had been warned of the consequences of breaching the
orders. The final breach came just five months into the term of supervision
which was to last for two years and nine months. No acceptable explanation
for the breaches has been provided. The instructions of the appellant to his

counsel seeking to explain his conduct have been both inconsistent and
unacceptable.

1. In my opinion, in all of the circumstances, it is now appropriate to proceed

   in the manner originally proposed by the learned sentencing Judge. It is

   appropriate and not unjust to restore the unserved part of the suspended sentence, being the term of two years and nine months. To fail to do so would be to undermine the integrity of the sentencing regime.

2. I would restore the unserved part sentence and I would set a non-parole

   period of one year and five months. The sentence should be deemed to have

   been restored as at the date upon which the appellant was taken into

   custody.

[46]   Orders:

(1)	The appeal is allowed.
(2)	The appellant is re-sentenced by this Court as follows:

Restore the part of the sentence held in suspense and order the appellant to

serve it. We fix a non-parole period of one year and five months. The
restoration of the sentence is backdated to the day the appellant was taken
into custody for the breach of suspended sentence.

---------------------------------------

[1] R v Palliaer (1983) 35 SASR 569 at 571.

[2] Wilson v Taylor (1997) 113 NTR 1 at 9; R v Perry [1975] Tas SR 62 at 75; Davies v Deverell (1992)

1 Tas R 214 at 218-220.

[3] R v Buckman (1988) 47 SASR 303 per King CJ at 304.

[4] Marston v The Queen (1993) 60 SASR 320 per King CJ at 322; Lawrie v R (1992) 59 SASR 400 per

Perry J at 403. 5 [2002] NSWCCA 28 at (42).

[6]  (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Lee and Abadee JJ, 7 May

1991).

[7] (1991) 104 FLR 113.