Craigie v Rigby - [2003] NTSC 97

Craigie v Rigby [2003] NTSC 97
PARTIES:ERNEST JAMES CRAIGIE
v

KERRY LEANNE RIGBY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 72 of 2003 (20302901)
DELIVERED:  9 September 2003
HEARING DATES:  8 September 2003
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:D. Woodroffe
Respondent:  B. Harris
Solicitors:
Appellant:Katherine Region Aboriginal Legal Aid Service Inc
Respondent:  Office of the Director of Public Prosecution
Judgment category classification:    A
Judgment ID Number:  ril0328
Number of pages:  10

ril0328
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Craigie v Rigby [2003] NTSC 97
No. JA 72 of 2003 (20302901)
IN THE MATTER OF the Justices Act

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

BETWEEN:

ERNEST JAMES CRAIGIE

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 9 September 2003)

On 17 April 2003 the appellant pleaded guilty to having unlawfully assaulted Julie May Craigie in circumstances of aggravation being that Ms Craigie suffered bodily harm, that she was a female and the appellant was a male and that she was assaulted with a dangerous weapon, namely a metal baseball bat. The maximum penalty for that offence is imprisonment for 5 years. The appellant was sentenced to imprisonment for a term of 9 months, with that sentence to be suspended after he had served a period of imprisonment of 3 months. It was a condition of the suspension of the sentence that he would enter into a good behaviour bond for a period of 27 months.

The appellant appeals on various grounds, the principal of which is that his Worship failed “to wholly suspend the sentence of 9 months imprisonment” and proceeded to impose “an actual imprisonment of 3 months” which was said to be manifestly excessive in all of the circumstances.
At the time of the offending, the appellant and Ms Craigie had been married for a period of some 12 years. There were 3 children of the relationship. The appellant was concerned that the relationship was breaking down and, at that time, Ms Craigie was considering a 3 month separation. The appellant was hopeful of changing the mind of Ms Craigie and arranged to take her out to dinner with a view to “rebuilding their relationship”. On the relevant evening when the appellant arrived to collect Ms Craigie, she and a female friend had been drinking together and Ms Craigie was intoxicated. The appellant was disappointed and himself consumed some alcohol before deciding to go to bed and sleep it off. He went upstairs to bed and his wife continued drinking with her friend. Some time later she went to the room where the appellant was sleeping and knocked on the door. The appellant let her in and they began arguing. Ms Craigie indicated to the appellant that she intended to go out by herself. He then attacked her with his fists and a baseball bat.
The appellant punched Ms Craigie twice to the face, causing her to fall to the floor. He armed himself with the metal baseball bat and commenced striking her on her back, neck and shoulder. He stopped the assault when neighbours came to her aid. Ms Craigie was conveyed to the Katherine Hospital where she received treatment for her injuries, including receiving 9 stitches for a gash on her forehead. She was later released from hospital.
In a record of interview made on 22 February 2003 the appellant admitted to punching Ms Craigie but could not remember other details of the incident. When asked why he had assaulted her he said that she was going out by herself and that this “made him wild”.
On any view, this was a serious assault. Any person who takes to another with a weapon such as a baseball bat and inflicts injuries of the kind suffered by Ms Craigie must be regarded as having committed a serious assault.
The appellant had a criminal history which included having been sentenced to actual periods of imprisonment for assault on two different occasions. In explanation of those assaults the learned sentencing magistrate was informed that they had occurred in “pub brawls”. The first was in 1975 and the second in 1980. The other offences on his record were minor and the last offence occurred in July 1985.
In sentencing the appellant, his Worship made the following observations:
“There has got to be a gaol term to reflect that situation and there has got to be a gaol term to get it into your mind, to let you know that it is inappropriate to endeavour to control somebody by violence or show you are upset by violence.
It is no excuse. Ms Opie said that this happened whilst you were under the influence of alcohol that you rarely consumed. Alcohol is a good indicator of character. Alcohol disinhibits and it can have a tendency to show more of the beast in a person. That is what alcohol can have the tendency to do. And as I said earlier there has got to be a gaol term, part of which you serve just to let the community know if you assault somebody reasonably nastily, even at the age of 49 with a good record, you can expect to go to gaol.”
The learned sentencing magistrate indicated that in determining the appropriate sentence he had a starting point of imprisonment for 12 months which he reduced by 25 per cent to reflect the plea of guilty. He then proceeded to impose a sentence of imprisonment of 9 months, suspended after 3 months.
In the submissions made on behalf of the appellant there was no challenge to the head sentence of 9 months. Rather, the focus was upon the failure of the learned magistrate to fully suspend the sentence imposed. In support of that submission, and by way of separate grounds of appeal, the appellant complained of the approach taken by the learned magistrate to the sentencing process. Effectively those submissions were made in support of the ultimate submission that the sentence was manifestly excessive in all the circumstances.
The first complaint was that the learned magistrate erred in attaching significance or weight to the prior convictions of the appellant. That submission was abandoned during the course of the hearing. However, coupled with this ground was a complaint that his Worship placed “too much emphasis on deterrence and insufficient emphasis on rehabilitation” of the appellant.
In dealing with the prior convictions, the learned sentencing magistrate said:
“I take into account the fact that you have been in trouble before for assault some time ago in 1975 and 1980. In relation to those assaults you received short gaol terms. That is relevant because you came before the court as a person who has been in trouble before for assault. If you hadn’t been in trouble before for assault, you would have been entitled to leniency that a first offender receives. You have been in trouble before, you don’t get that leniency.”
I see nothing in those observations to suggest that his Worship attached undue significance to the prior convictions. In the circumstances they were relevant to the sentencing process in the way in which the magistrate described and Mr Woodroffe correctly acknowledged that to be so.
In the course of his sentencing remarks the learned magistrate observed that a gaol term should be suspended “only in part” because of the need to provide for general deterrence and “the sentencing principle of retribution”. There is, in the sentencing remarks, no basis for concluding that his Worship placed too much weight upon these matters. The submission was really another way of saying that the penalty imposed was not commensurate with the offence and was therefore unjust. That submission involves a consideration of whether the sentence was manifestly excessive in all the circumstances.
The learned sentencing magistrate addressed the issue of rehabilitation. He referred to the period of time since the last assault, he acknowledged that the appellant had remained out of trouble, he noted that a lot of people regarded the appellant as being of good character and he observed that the appellant was a diligent worker. All of those matters he referred to as being “a good thing” and demonstrating positive signs for rehabilitation.
The appellant also complained that the learned magistrate erred “in applying his own understanding of the psychology of relationships to the appellant”. The basis of this complaint is that, in the course of his sentencing remarks and in response to a submission made by the appellant regarding the appellant’s “difficulty communicating … love”, his Worship said that he thought the expression of love was made in circumstances where the appellant was seeking to exercise some form of control over Ms Craigie. Although the magistrate may have made some observations which suggested broad, and unnecessary, generalisations it is clear that ultimately his Worship was applying his remarks to the particular circumstances of the appellant. He referred to the circumstances that prevailed and concluded that the appellant was seeking to exercise some form of control over Ms Craigie. There was an evidentiary basis for so concluding and it was open to his Worship to so conclude. Whether this Court might have reached a different conclusion is not to the point. In any event, the remarks were made in passing and were not such as to have any real impact upon the sentence imposed.
The appellant then complained that the learned magistrate erred in stating as a sentencing principle that the financial costs to the victim, the community and the victim’s employer warranted a term of imprisonment. The remarks of his Worship were to the effect that the consequences for Ms Craigie and the cost to the community were matters to be taken into account in determining that a term of imprisonment was appropriate. When he referred to these issues he was listing items that suggested a term of imprisonment was appropriate and his remarks should be seen in that context.
It was further submitted that the only loss that could be considered in the sentencing process was that caused to the victim by the offender, rather than other loss suffered by the community or individuals other than the victim. I reject that as a proposition. All of the surrounding circumstances of an offence and an offender are to be taken into account including, as is provided in s 5(2)(d) of the Sentencing Act, “any damage, injury or loss caused by the offender”. There is no reason to limit the words of that section in the manner suggested by the appellant.
The real issue in this matter is whether the sentence was manifestly excessive. The principles applicable to such a ground of appeal are well known. In the absence of identified error, an appellant seeking to establish that a sentence was manifestly excessive must show that the sentence was not just arguably excessive but that it was so “very obviously” excessive that it was “unreasonable or plainly unjust”: Raggett, Douglas & Miller (1990) 50 A Crim R 41 at 47; Salmon v Chute & Anor (1994) 94 NTR 1. The presumption is that there is no error in the sentence. It is not enough that this Court would have imposed a less or different sentence. There must be some reason for regarding the sentencing discretion as having been improperly exercised: Cranssen v The King (1936) 55 CLR 509 at 519-520. An appellate court will interfere only if it be shown that the sentencing magistrate 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 magistrate said in the proceedings or the sentence itself may be so excessive as to manifest error.
Having considered the sentence imposed by his Worship and the circumstances surrounding that sentence, in my view the sentence falls comfortably within the available range of sentences. It cannot be said that his Worship erred in imposing a sentence that was manifestly excessive. This was a vicious assault carried out by a man upon an intoxicated woman with the assistance of a baseball bat. The injuries suffered were sufficient to require her to attend at the hospital and receive 9 stitches. The appellant was fortunate that the blows he inflicted upon Ms Craigie did not result in more serious injuries. In my view, aspects of general and personal deterrence, coupled with the serious nature of the assault, made a term of actual imprisonment the likely result in these proceedings. I see nothing in the sentence or the sentencing remarks which would lead me to interfere.
The appeal is dismissed.

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