Burness v Yunupingu - [2003] NTSC 4

Burness v Yunupingu [2003] NTSC 4
PARTIES:JOSEPHINE LEAH BURNESS
v

JOSEPH GARRKANA YUNUPINGU

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 50 of 2002 (20110442)
DELIVERED:  30 January 2003
HEARING DATE:  28 January 2003
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:M Carey
Respondent:  S Musk
Solicitors:
Appellant:DPP
Respondent:  NAALAS
Judgment category classification:    C
Judgment ID Number:  bai0301
Number of pages:  11

bai0301
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Burness v Yunupingu [2003] NTSC 4
No. JA 50 of 2002 (20110442)

BETWEEN:
JOSEPHINE LEAH BURNESS

Appellant
AND:
JOSEPH GARRKANA YUNUPINGU

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 31 January 2003)

On 8 May 2002, the respondent was convicted upon his pleas of guilty to three charges of assault. The three offences were committed on 4 July 2001. The first charge was aggravated by reason that the respondent’s victim, Fagan Yunupingu, was threatened with offensive weapons, namely petrol and a lighter. The second charge was aggravated in a similar manner and was aggravated further by reason that the respondent’s victim, Denise Gondara, was a female and the respondent was a male. The third charge was a common assault.

The learned magistrate imposed an aggregate sentence on the first two charges of imprisonment for a period of four months, to be suspended after the respondent had served 24 hours in custody. On the third charge, the learned magistrate imposed a sentence of imprisonment for a period of two months, to be suspended after the respondent had served 24 hours in custody. The sentences were ordered to be served concurrently and His Worship fixed a period of two years during which the respondent was not to commit another offence punishable by imprisonment.
The Crown has appealed against the sentences imposed on the respondent on the grounds that:
1.The overall sentence imposed is manifestly inadequate.
2.The learned magistrate erred in law in that he failed to give any or sufficient weight to the principles of general and specific deterrence in the circumstances of the offence and this offender.
The circumstances of the three offences were not a matter of dispute. On the evening of 4 July 2001, the respondent was drinking at the grounds of the United Church in Nhulunbuy. At about 10pm he became involved in a verbal argument with the victim of the first charge, Fagan Yunupingu, and left the area. He walked to the rear of Gove House and climbed into a boat garaged at the carpark there. The respondent removed a small container of petrol from the boat. At about 10.30pm he walked to the Nhulunbuy Private School oval and found the victims of charges 1 and 2, Fagan Yunupingu and Denise Gondara, sleeping next to the netball courts.
The respondent removed the lid of the container and poured petrol onto Denise Gondara and Fagan Yunupingu. He then took a lighter from his shirt pocket and ignited it, bending over the victims. As he did this, he stated: “I’m going to light you two up”. He moved closer towards the victims in an attempt to light the petrol. The victims, fearing that the respondent was about to ignite the fuel, ran away.
The victim of the third charge, Johnny Gurruwiwi, struck the respondent over the head with a tree branch in an attempt to prevent him from lighting the fuel. The respondent then struck Johnny Gurruwiwi in the face with his right clenched fist. The blow caused the victim to fall backwards. Police attended the scene and the respondent fled.
On 11 July 2001, the respondent was arrested and taken to Nhulunbuy Police Station. He participated in an electronically recorded record of interview. He admitted pouring petrol over the victims but claimed he could not recall having possession of a lighter that night. He stated that he only poured the petrol onto the victims to make them wet. The respondent also admitted punching Johnny Gurruwiwi.
At the hearing before the Court of Summary Jurisdiction, the respondent accepted that he had a lighter and used it in the manner described above, while continuing to maintain that he could not recall this.
In his reasons for sentence, the learned magistrate described what the respondent had done as “potentially very serious”. His Worship then added the observation: “Of course in actual terms, ultimately there was no danger and there was no injury. Those matters weigh heavily in relation to what’s to happen to you”.
The learned magistrate took into account that the respondent had two previous convictions for offences of violence. In 1994, the respondent was convicted of aggravated assault involving a threatening weapon and was sentenced to imprisonment for a period of two months, fully suspended. In 1986, as a juvenile, the respondent had been convicted of assaulting a female and had been ordered to complete 50 hours work under a community service order. The learned magistrate acknowledged, correctly, that the respondent’s previous assault convictions required him (pursuant to s 78BA(1) of the Sentencing Act) to order the respondent to serve a term of actual imprisonment or a term of imprisonment, partly (but not wholly) suspended.
The learned magistrate gave the respondent credit for his plea of guilty, albeit recognising that the plea came at a “very late hour”. His Worship then continued:
“The real task or the difficulty, and the only difficulty that I have, is to try and determine whether it’s sensible to give effect to s 78BA of the Sentencing Act which says that I must send you to gaol, to incur the time, trouble and expense for all concerned, of sending you off to Berrimah for a relatively short time and bringing you back, because I believe that a relatively short time of actual imprisonment is what’s required in these matters.”
The learned magistrate then imposed the sentences which are referred to in paragraph [2] above.
The Crown submits that the sentences imposed are manifestly inadequate. In Mr Carey’s submission, the objective circumstances of the offending were so serious that the learned magistrate’s decision to suspend almost the entire sentence of the respondent was not a course reasonably open. Mr Carey emphasised that the respondent’s actions in going away to obtain the petrol and then returning to find his victims involved an element of premeditation and planning. In the Crown’s submission, the respondent acted in a highly considered and methodical fashion. He sought to put his plan into effect by igniting the lighter. It was put that the respondent’s victims must have been terrified. The respondent did not cease of his own volition. The victim of the third charge sought to stop the respondent by striking the respondent with a tree branch and the victims of the first two charges were able to flee.
In the Crown’s submission, the learned magistrate placed too much weight on the lack of physical injury suffered by Fagan Yunupingu and Denise Gondara and ignored both the psychological impact on the victims and the timely intervention of Johnny Gurruwiwi.
Mr Carey submitted that the objective circumstances of the offences required a sentence of actual imprisonment of some significant length. He drew attention to the learned magistrate’s observations to the effect that if the proceedings had occurred in Darwin, the respondent would probably have been required to serve two weeks in gaol. In the Crown’s submission, His Worship erred in reducing what was otherwise a more appropriate sentence on the basis of saving the expense of transporting the respondent to prison in Darwin.
With respect to the Crown’s second ground of appeal, Mr Carey submitted that the learned magistrate’s decision to suspend all but 24 hours of the respondent’s sentence was inadequate to meet the needs of specific and general deterrence – particularly having regard to the fact that the respondent had two previous convictions for assault.
For the respondent, Ms Musk stressed the circumstances of the offences. In particular, Ms Musk submitted that it was not in dispute that the respondent had been drinking heavily and that he acted out of a sense of jealousy, shame and hurt at seeing his former de facto partner, Denise Gondara, with another man. Ms Musk stressed that neither Ms Gondara nor Fagan Yunupingu suffered any physical injury while the punch to Johnny Gurruwiwi was reactive to being hit on the head with a tree branch.
In the respondent’s submission the assaults were of short duration, not resulting in any significant physical injury and committed in extenuating circumstances. The learned magistrate accepted that the respondent was remorseful and had given practical effect to his remorse by co-operating with the Police and pleading guilty. Ms Musk emphasised that the respondent’s only prior conviction as an adult for an assault was some 8 years previously.
In the submission of Ms Musk while the sentence might be seen as falling towards the lower end of the scale, the learned magistrate had not mistaken the facts, taken into account irrelevant matters or acted on a wrong principle. The need for specific and general deterrence had been met by the imposition of a four month sentence of imprisonment suspended for an unusually lengthy period, namely two years.
The principles that apply to a Crown appeal against sentence are well understood and have been addressed in many decisions of this Court and the Court of Appeal. They are conveniently summarised by the Full Court of the Federal Court in R v Tait (1979) 46 FLR 386 at 388:
“An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or 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 or inadequate as to manifest such error …”.
In R v Raggett (1990) 50 A Crim R 41 at 47 Kearney J said of a Crown appeal based upon the ground that the sentence was manifestly inadequate:
“In general, then, to establish the existence of the necessary (unidentified) error the Crown must show that the sentences are not just arguably inadequate but so very obviously inadequate that they are unreasonable or plainly unjust.”
In the present case, the Crown does not seek to argue that the effective head sentence of imprisonment for four months was inadequate. The gravamen of the Crown’s complaint is that suspension of all but 24 hours of this period is so manifestly inadequate that this Court should intervene to impose an appropriate sentence.
In my view the period of imprisonment the respondent had to serve prior to release was clearly inadequate. A sentence requiring the respondent to serve only 24 hours in custody does not adequately reflect the circumstances of the offending. The sentence failed to reflect the seriousness of the respondent’s conduct and was so far removed from an appropriate sentence that it demonstrated that the exercise of the sentencing discretion was unsound: Cranssen v R (1936) 55 CLR 509 at 520.
The respondent’s relationship with Denise Gondara was over. Subsequent to the end of that relationship he had formed a relationship with another woman. His conduct was unprovoked, pre-meditated and planned – albeit at a time when his judgment was clouded by the effect of alcohol. The respondent created an extremely dangerous situation which could have so easily ended in tragedy but for the intervention of Johnny Gurruwiwi. The circumstances of the respondent’s offending demanded that a strong element of general deterrence be included in his sentence. I do not consider that personal deterrence needed to be emphasised in view of the eight year gap in the respondent’s record for offences of violence. In my view, a sentence requiring the respondent to be detained for only 24 hours was wholly inadequate to convey the message that conduct of the present kind is completely unacceptable. The learned magistrate sought to meet the needs of deterrence with a lengthy operational period for the partly suspended sentence. However, it is also clear from his observations that he was motivated in part to save the expense of transporting the respondent to Darwin to serve his sentence. This cannot be a valid reason to impose a sentence less than would otherwise be appropriate. All Territory residents are entitled to the same protection of the law whether they live in urban centres or remote communities. The learned magistrate’s objective may well have been laudable – but it is quite impossible to accept that sentences in cases of serious violence should be discounted based on the cost of transporting an offender to prison.
In my opinion an error in principle has been demonstrated by the inadequacy of the respondent’s sentence. It is the duty of this Court to impose a sentence appropriate to the circumstances of the offences and the offender. In doing so, it is necessary to consider the impact of what has been described as “double jeopardy” faced by the respondent. In R v Tait, supra, it was observed at 388:
“Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across ‘time-honoured concepts of criminal administration’ … A Crown appeal puts in jeopardy ‘the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal’ … The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.”
In R v Morton [2001] NTCCA 6, Court of Criminal Appeal of the Northern Territory, unreported, delivered 2 August 2001, Riley J observed at paragraph [36]:
“In the event that a Crown appeal is upheld it is not necessarily the case that the Court on appeal will impose the sentence that should have been imposed at first instance. The fact that the successful appeal places the respondent in the position of being “twice in jeopardy” often leads to a discount being applied to the sentence: R v Hallocoglu (1992) 29 NSWLR 67 at 80. In many such cases, in order to reflect this approach, the courts have imposed sentences somewhat less than would be appropriate if it were not a Crown appeal. The extent of the discount will vary according to the circumstances of the particular matter and will range from substantial to none at all.”
In Davey (1980) 2 A Crim R 254 at 261, Muirhead J observed:
“… there is no person so likely to become, not only bewildered, but embittered, as a person who has been sent back to his work and his family under probation by the judge he has seen considering his case, only to find himself re-arrested to serve a custodial sentence imposed elsewhere, a sentence he will not regard as just. Respect for the law is very much at risk under such circumstances.”
The present offences occurred on 4 July 2001. The respondent was sentenced on 8 May 2002 and released from custody on the following day. He has now been at large for a period of approximately 8½ months with the outstanding balance of his 4 month sentence hanging over his head.
I accept that to return the respondent to prison would be a bewildering experience for him. I have no confidence that he would understand the reasons. He would in all likelihood feel a deep sense of grievance.
In the course of submissions, Mr Carey indicated that if the appeal was allowed, the Court might consider requiring the respondent to serve the period of 14 days actual custody which the learned magistrate suggested he would have imposed if he had been sitting in Darwin. In my view, a sentence of 4 months imprisonment suspended after 14 days would remain manifestly inadequate in the circumstances of the present case. Adoption of the Crown’s suggestion would also, in my view, be little more than “tinkering” with the respondent’s sentence. I consider a sentence of something in the order of imprisonment for 9-12 months, suspended after 3 to 4 months would be appropriate in all the circumstances of the offences and the offender. However, having regard to the Crown’s position on both the head sentence and the appropriate period which the respondent should now serve in actual custody, I believe it would be unjust to impose what I consider to be an appropriate sentence or to require the respondent to return to prison for a matter of days. In these somewhat unusual circumstances, notwithstanding the inadequacy of the respondent’s sentence, the appeal is dismissed.

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