Darwin v Bryson - [2003] NTSC 18

Darwin v Bryson [2003] NTSC 18
PARTIES:DARWIN, CHARLTON

v
BRYSON, RICHARD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISTING TERRITORY JURISDICTION
FILE NO:JA40 of 2003 (20004041)
DELIVERED:  12 MARCH 2003
HEARING DATES:  12 MARCH 2003
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosections
Solicitors:
Appellant:S. Musk
Respondent:  B. Harris
Judgment category classification:    C
Judgment ID Number:  ril0305
Number of pages:  9

ril0305
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Darwin v Bryson [2003] NTSC 18
No. JA40 of 2003 (20004041)

BETWEEN:
CHARLTON DARWIN

Appellant
AND:
RICHARD BRYSON

Respondent

CORAM: RILEY J
EX TEMPORE:
REASONS FOR JUDGMENT
(Delivered 12 MARCH 2003)

This is an appeal from a sentence of imprisonment imposed upon the appellant in the Court of Summary Jurisdiction on 27 February 2003. At that time the appellant pleaded guilty to having unlawfully assaulted Bruce Wernham on 5 February 2000, with the circumstance of aggravation that he threatened him with a beer bottle.
The offence is contrary to section 188(2) of the Criminal Code. The maximum penalty for the offence is imprisonment for five years.
The circumstances surrounding the offending, as placed before the court, were as follows:
“At about 12:15 pm on Saturday 5 February 2000 the defendant was with a group of other persons outside Casuarina Shopping Square, at the entrance nearest to K-Mart. The defendant was moderately affected by liquor. At this time the victim was about to enter Casuarina Square with his 11-year old son.
As he approached the entrance, the defendant, who was arguing with other persons, staggered back into the victim, bumping against him. A short time later the victim left Casuarina Shopping Square with his son, through the same entrance, when again he encountered the same group of people. The defendant was drinking beer from a VB beer stubby and staggered backwards into the path of the victim. The victim placed his hands on the shoulders of the defendant to avoid bumping into him.
The defendant yelled out to the victim: ‘You got a problem? I’ll fucking smash you. I’ll fucking kill you’. The victim then advised the defendant he was a police officer. He warned the defendant about his behaviour and drinking liquor within two kilometres of licensed premises. The defendant became enraged and, whilst grasping the VB stubby, brought his arm back as if to strike the victim with the bottle, or throw it. The defendant then yelled out: ‘I’ll fucking kill you’.
The victim believed he was about to be assaulted and walked backwards away from the defendant. He advised his son to run to the car. The defendant followed the victim and stated: ‘You got him with you. I’ll fucking get you. I’ll fucking get him’. The defendant held the stubby in his hand with his arm drawn back as if to throw or punch the victim with the bottle.
As the victim retreated, several other males with the defendant followed up behind the defendant. The victim, still moving backwards, managed to put a distance of about four metres between himself and the defendant. The defendant again yelled out: ‘I’ll fucking smash you; you want me to’. The defendant then threw the beer stubby at the victim, narrowly missing his head. The bottle smashed on the wall behind the victim. The victim then hurried off after his son and got into his vehicle and left the area. He attended at the Casuarina Police Station and reported the matter.
The area at the time of the offence was very busy with a large number of persons coming to and from the Casuarina Shopping Square.
The defendant was formally interviewed by police on 9 February 2000. That interview was conducted in the presence of his wife and his sister. He admitted throwing the stubby at the victim. He claimed the victim deliberately bumped into him. He stated he only intended to frighten the victim and denied knowing the victim had his son with him. The defendant was advised he would be summonsed for the matter.”
There was no victim impact statement, but the court was told that the victim had concerns for his safety and for the safety of his child. The court was also told that there were no ‘ongoing problems’ in relation to the victim or his child.
Submissions were made on behalf of the appellant to the effect that when he was intoxicated he became aggressive. The appellant, through his counsel, expressed his regret for his conduct. It was submitted that this was a brief encounter of which the appellant had little recollection. It was submitted that he was not someone who had a propensity for this kind of behaviour.
His criminal history revealed no prior convictions for offending of this kind. Indeed, it showed only one offence for disorderly behaviour and that occurred after this incident. It was not a relevant prior for sentencing purposes. The appellant had never been in prison before.
It was submitted to his Worship that the appellant had a responsible job undertaking CDEP work at his outstation, and, further, that he had the offer of a job in Maningrida, packing artworks. That, I am told and I accept, was a skilled undertaking. He was said to be a responsible young man with a good employment record. At the time of sentencing, he had been off alcohol for a substantial period of time. He was married and lived with his wife and 13-year old daughter.
The matter came before the court some three years after the events occurred. The reasons for the delay have not been fully explained, although it seems to be accepted that it was the failure of the appellant to attend court that led to the substantial delay.
His Worship sentenced the appellant in the following terms:
“I take into account your plea of guilty. It is not an early plea of guilty. It came after the matter was set for hearing on two occasions. The two occasions the matter was set for hearing were interrupted by a period of time when you were at large, having failed to go to court on 24 April 2001. Nonetheless, the matter did not proceed by way of a hearing so I think the appropriate discount is 15%.
The second thing I take into account is that you have not been in trouble before for assault. You are a first offender when it comes to assaults. You have been in trouble for disorderly behaviour. That disorderly behaviour occurred after this assault and you were dealt with for that disorderly behaviour after this assault. The effect of that disorderly behaviour means that you are not entitled to the leniency that a person would receive if a person had not got into trouble for disorderly behaviour after getting into trouble for assault.
You are 31. You are married. You have got a 13-year old daughter. You appear to have a reasonable work record and you have work to go to on Monday. I have sat down here and I have put my head down and I have tried to justify a sentence other than a term of imprisonment in this case.
Mr Bryant has suggested a community work order. The prosecutor has suggested or referred me to a suspended sentence. I will be blunt. I think it is too serious for either of those. This is a serious matter. Yes, as Mr Bryant says, there was no physical injury in the form of the application of force to the complainant’s body, he wasn’t hit, he wasn’t struck by the beer bottle, but that’s not the only indication of harm.
There is middle harm: being put in fear, the fear of somebody saying, for example, ‘I’ll fucking smash you if you want me to’; the fear associated with having a bottle thrown at somebody; the fear associated with listening to that bottle break on the wall behind; the fear that causes a person to hurry off.
Mr Wernham was going about his business that day. You, by virtue of the alcohol you had consumed, were muddle-headed. You weren’t thinking clearly. You jumped the gun when he put his arms on you to stop you from bumping into him. To my mind there’s got to be a gaol term in this case. There has to be a gaol term to discourage this type of behaviour where people make the wrong assumptions, then shoot their mouth off threatening to do something to that person, and threaten them with a weapon - in this case a beer bottle.
I appreciate that largely you have stayed out of trouble since this incident. I appreciate that you are married. I appreciate that you have got a job to go to. But there are other factors in this case and the other factor is sending a message to the community not to get drunk and not to then engage in bullying behaviour due to drunkenness.
You are convicted. The starting point is a term of imprisonment of three months with a 15% discount. That reduces it to 2.55 of a month. I round that down to two and a half months, which is the equivalent of two months and two weeks. So you are convicted. You are sentenced to imprisonment for two months and two weeks.”
There are three grounds of appeal, namely:
1.The sentence was manifestly excessive in all the circumstances;
2.The magistrate erred in giving too much weight to deterrence over rehabilitation;
3.The magistrate erred in failing to consider alternative dispositions other than imprisonment.
Grounds 2 and 3 were argued separately, but were ultimately presented as part of ground 1.
The principles applicable to an appeal against sentence are well know. The exercise of the sentencing discretion will not be disturbed on appeal unless error in that exercise is shown. There is a presumption that there has been no error.
The appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence was insufficient or excessive. It interferes only if it can 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 course of the proceedings or the sentence itself may be so excessive as to demonstrate the sentencing discretion of the learned Magistrate was improperly exercised.
In order to establish that a sentence was manifestly excessive, the appellant may show that the sentence was out of all proportion to any view of the seriousness of the offence which could reasonably be taken: Cranssen v R (1936) 55 CLR 509 at 519 to 520. The sentence must not just be excessive, it must be manifestly so.
In sentencing the appellant, his Worship took into account the mitigating factors that had been placed before him by counsel. However, he remained of the view that the seriousness of the offending was such that it demanded a sentence of imprisonment. He referred to the alternative disposition of a community work order, but dismissed that as insufficient to meet the seriousness of the offending. I am unable to say that his Worship erred in so deciding.
I am unable to accept that the head sentence of two months and two weeks imprisonment was manifestly excessive. It is a stern sentence and one which must be regarded as being towards the top of the range, but, in my view, it cannot be said to be manifestly excessive in the sense discussed in the authorities.
I have greater concern arising out of the failure of his Worship to give consideration to the suggestion of the prosecutor that the sentence be suspended. His Worship dismissed that submission on the basis that the offending was ‘too serious’ for such a result. He did not address it further. He did not consider the prospect of suspending the whole or part of the sentence in light of the mitigating factors.
In my view, the circumstances of the offender call for suspension of at least part of the sentence. There were many factors that pointed in that direction. The appellant had not been in prison before. Although he had some prior offences, these were not for violence. He had reached the age of 31 years without committing offences of that kind and this strongly suggests that the offending on this occasion was an aberration.
His lack of offending, other than the one disorderly conduct offence, in the period from February 2000 to February 2003 lends support to that conclusion. The appellant is a family man with a good work record. He has given up alcohol for a substantial period. He has maintained his good work record. He lives in a dry community. He has expressed remorse for his conduct.
All of these factors suggest that he is a good candidate for rehabilitation and that any sentence imposed should be fashioned to encourage his rehabilitation, and, unless the seriousness of the offending precluded it, such a sentence should not be of a kind that would be likely to deter the appellant from pursuing the process of rehabilitation which he has voluntarily undertaken, and which is advanced.
In my view, his Worship erred in failing to adequately consider the suspension of the whole or part of the sentence of imprisonment he imposed.
I do not propose to interfere with the head sentence. However, I direct that the sentence imposed by his Worship be suspended after the appellant has served a sentence of imprisonment of one month, dated from the time that the appellant entered prison in relation to this matter on 27 February 2003.
He will be released on condition that he place himself under the supervision of the Director of Correctional Services for a period of six months and that he obey the lawful directions of the Director or his delegate in that period. I set the period of six months from the date of his release as the operational period for the purposes of the Sentencing Act.

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