CITATION:Ebatarinja v Dunne [2018] NTSC 66
PARTIES:EBATARINJA, Harvey
v
DUNNE, Andrew
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 3 of 2018 (21738039)
DELIVERED: 19 September 2018
HEARING DATE: 14 May 2018
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST PERSON – JUDGMENT AND PUNISHMENT – OFFENCE OF ASSAULT POLICE IN THE EXECUTION OF THEIR DUTY – whether sentence was manifestly excessive having regard to the circumstances of the offending and of the appellant – the exercise of the sentencing discretion having regard to the protection of police – role of general deterrence – whether other subjective considerations specifically the age of the offender diminished – appeal allowed.
Criminal Code (NT), s 189A
Youth Justice Act (NT), s 136
Bara v The Queen [2016] NTCCA 5; Liddy v The Queen [2005] NTCCA 4; Morrow v The Queen [2013] NTCCA 7; Emitja v The Queen [2016] NTCCA 4; Bellis v Burgoyne [2003] NTSC 103; Kumantjara v Harris (1992) 109 FLR 400; Maynard v O’Brien [1991] 57 A Crim R 1; Bugmy v The Queen (1990) 169 CLR 525; Namarnyilk v The Queen [2013] NTCCA 17; JF v The Queen [2017] NTCCA 1; R v Evans [2013] NTCCA 9; Veen v The Queen (No 2) (1988) 164 CLR 465; Marshall v Llewellyn (1995) 79 A Crim R 49; Hogan v Hinch (2011) 243 CLR 506, referred to.
REPRESENTATION:
Counsel:
Appellant:R Anderson
Respondent: C Ingles
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: BLO1809
Number of pages: 19
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINEbatarinja v Dunne [2018] NTSC 66
No. LCA 3 of 2018 (21738039)
BETWEEN:
HARVEY EBATARINJA
Appellant
AND:
ANDREW DUNNE
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 19 September 2018)
Introduction
On 16 March 2018, following pleas of guilty, the appellant was sentenced as follows in the Alice Springs Local Court:
·Engage in violent conduct (count 2 on information) contrary to s 47AA of the Summary Offences Act. Convicted and sentenced to four months imprisonment.
·Assault a police officer while in the execution of their duty (count 4 on information) contrary to s 189A of the Criminal Code. Convicted and sentenced to 30 months imprisonment.
·Possess carry and use offensive weapon at night namely rocks and tyre irons (Count 5 on complaint). Convicted and sentenced to 12 months imprisonment.
The sentences of four and 12 months imprisonment, imposed on counts 2 and 5 respectively, were ordered to be served concurrently with the sentence of 30 months imposed on the sentence for count 4, the charge of assault police. The total effective sentence of 30 months imprisonment was ordered to commence on 8 August 2017. A non-parole period of 17 months was set.
The single ground of appeal is that the sentence imposed…
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- AGLC
- Ebatarinja v Dunne [2018] NTSC 66
- Case
- [2018] NTSC 66
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the arguments and the legal principles relevant to sentencing for assaulting a police officer. The court noted that each case requires individual assessment and treatment, and there is no presumption that a gaol term must be imposed. However, an immediate gaol sentence can generally be expected in cases where the offender deliberately assaults police to impede them from performing their work, or where there are other aggravating features. The court also noted that mitigating circumstances could persuade the sentencer to impose a non-custodial sentence. The court highlighted the importance of general deterrence in sentencing for assaulting police, but also emphasised the need to consider all relevant factors in each case.
The Court of Appeal found that the sentencing judge had properly considered the appellant's guilty plea and other mitigating factors, but had placed significant weight on general deterrence. The court considered that the sentence was within the range of penalties applicable for the offence, but noted that the appellant's age and the lack of any prior convictions for similar offences were mitigating factors that should have been given more weight. The court concluded that the sentence was manifestly excessive and allowed the appeal. The case was remitted to the sentencing judge for re-sentencing.
The Court of Appeal ordered that the case be remitted to the sentencing judge for re-sentencing, with directions to give appropriate weight to the mitigating factors, including the appellant's age and the absence of prior convictions. The court emphasised the need for a balanced approach to sentencing, taking into account both the need for general deterrence and the specific circumstances of the offender.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It was submitted by reason of his pleas it could be shown he accepted responsibility for his actions. In terms of the time taken to finalise the case, counsel below said that from the time she was acting for the appellant, he was not contesting the charges he had pleaded guilty to. The Court was told the guilty pleas were indicated to the three charges on 23 November 2017. Given two charges were withdrawn on the day the pleas were entered, it was said the matter could have been dealt with earlier and it was submitted an early plea discount should be ordered.[12] His Honour determined that in all of the circumstances there should be an adjustment of 20 percent. He said when the matter was first before the Local Court in August 2017, the appellant indicated he intended to plead not guilty to counts 1, 2 and 5, then in September 2017 the indication was to plead not guilty to counts 1, 2, 3 and 5. In November 2017 there was an indication that the not guilty pleas would only be to counts 2 and 3, and the balance would be pleas of guilty. His Honour considered that as a result of the early indications, the matter went through the Local Court listing processes, a brief was served and directions hearings were undertaken. The sentencing judge confirmed that the indication given on 23 November 2017 was in accordance with how the matter had finally proceeded on 13 March 2018. It was not considered to be a plea at the earliest opportunity but still had significant utilitarian value and the reduction was fixed at 20 percent. There is no reason to question the assessment of the value given to the pleas of guilty by the sentencing judge. Further consideration of the arguments on appeal The maximum penalty for the offence of assaulting a police officer under s 189A(1) is imprisonment for five years. If the police officer suffers harm the maximum penalty is imprisonment for seven years.[13] If the police officer suffers serious harm, the maximum penalty is imprisonment for 16 years. Within the context of the charge under s 189A(1), the sentencing judge found the offending fell within the general middle range to slightly above for sentencing purposes. There was no challenge to his Honour’s characterisation, nor could there be, in my view, for reasons already discussed. The argument on appeal was primarily concerned with whether the sentence as a whole, emphasising general deterrence, excluded other sentencing considerations to the extent that it resulted in a sentence that was manifestly excessive. Reference was made by the sentencing judge to cases in this Court which emphasised general deterrence and the approach to be taken to sentencing in cases of this kind. In Bellis v Burgoyne[14] Mildren J set out the legislative history in regard to changes to the maximum penalty and guidelines distilled from a number of authorities:Prior to 1994, the offence of assaulting a police officer in the execution of his duty was to be found in s 158 of the Police Administration Act, which fixed a maximum penalty of $1000 or imprisonment for 6 months. In Robertson v Flood (1992) 111 FLR 177 at 188, I observed:“It is somewhat odd that s 188(1) of the Criminal Code imposes a maximum penalty of one year's imprisonment for common assault, and a maximum of five years' imprisonment if an assault is committed upon a person doing an act in the execution of his duty or if the person is a public servant acting in the execution of his duty; yet the maximum penalty fixed by s 158 of the Police Administration Act is only six months' imprisonment. Perhaps the reason for this attitude by the legislature is that assaulting a police officer is an occupational hazard for which they are trained to deal.”In 1994, the legislature repealed so much of s 158 of the Police Administration Act as dealt with assaulting a police officer in the execution of his duty, and introduced a new provision, s 189A, into the Criminal Code. That section provides:189A. Assaults on police(1)Any person who unlawfully assaults a police officer in the execution of the officer's duty is guilty of a crime and is liable to imprisonment for 5 years or, upon being found guilty summarily, to imprisonment for 2 years.(2)If the police officer assaulted –(a) suffers bodily harm, the offender is liable to imprisonment for 7 years or, upon being found guilty summarily, to imprisonment for 3 years; or(b) suffers grievous harm, the offender is liable to imprisonment for 16 years.Clearly, s 189A raised the bar considerably. In particular, it is to be noted that the offence of assaulting a police officer in the execution of his duty, without the circumstance of aggravation of causing bodily harm, carries a maximum, now, of imprisonment for 5 years. In Clark v Trenerry (unreported, 17/1/96, BC9601976), B F Martin CJ said, after referring to s 189A:“Given that the principle role of sentencing is the protection of the community, the Courts would be lacking in their responsibility in that regard if they failed to do as much as is in their legitimate power to protect the police, who have a more direct and vulnerable role in achieving that same objective. That protection can be given, in part, by consistently imposing condign punishment upon those who assault police in the execution of their duty. The Court of Summary Jurisdiction and this Court have indicated that assaulting a police officer in those circumstances invites a gaol sentence and the legislature has since these events also recognised that need as evidenced by the amendments to which reference has been made. It is to be expected, in the light of those amendments, that penalties imposed by way of prison sentences upon conviction for offences such as these will increase substantially, taking into account the much higher maximum penalties.”There are a number of guidelines which can be distilled from previous authorities which are relevant when courts are required to sentence offenders on pleas of guilty for assaulting police:Each case requires individual assessment and treatment: (Yardley v Betts (1979) 1 A Crim R 329 at 334: applied by Kearney J in Golder v Pryce (unreported, 24/12/97)).There is no presumption that there must be a gaol term: (Robertson v Hood (1992) 111 FLR 177 at 188: Casey v Haywood per Kearney J 12/3/97, unreported).However, an immediate gaol sentence can generally be expected where:The offender deliberately assaults police in order to impede them from performing their work: Hayes v Trenerry (unreported, Kearney J 13/3/95, para 18).There is some other aggravating feature about the case, for example: the appellant may have a prior conviction for assault police or for violence; or the appellant may have used or threatened to use a weapon: see Ferguson v Chute (unreported, Mildren J 3/6/92), applied in Casey v Hayward (unreported, Kearney J 12/3/9). I would add to this category cases where the police officer has suffered bodily or grievous harm, or has been put in fear of his safety, or has suffered psychological trauma as a result of the attack.Where the offence took place in circumstances where the police were outnumbered, or in a remote location away from assistance: Kumantjara v Harris (1992) 109 FLR 400 at 409.Obviously, there may be mitigating circumstances which may persuade the sentencer to suspend the sentence fully or to impose a home detention order or community service order or fine. Commonly, assaults at the lower end of the scale will not attract actual custodial sentences if the offender is a juvenile or youthful first offender who has pleaded guilty and is remorseful, for example.It would also be relevant to consider whether or not the sentence fell within or without any tariff which may have been set. No material has been put before me of recent penalties to establish whether there is a tariff in the Court of Summary Jurisdiction. I was referred to my observations in Ferguson v Chute, supra, as to what the statistics revealed in 1992. However, that material is now very old and predates the enactment of s 189A of the Criminal Code. In Casey v Haywood, supra, Kearney J expressed the view that there is no sentencing tariff for assault police, a view followed by Thomas J in Lansen v Marshall (unreported, 25/2/03, BC200300436). In my opinion, having regard to the very wide range of circumstances of this offence and of the offender which may fall to be considered, the views of Kearney and Thomas JJ are plainly correct.