Fuentes v Rigby - [2021] NTSC 69

CITATION:Fuentes v Rigby [2021] NTSC 69
PARTIES:FUENTES, Raymond Alfred
v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising appellate jurisdiction
FILE NO:22111030
DELIVERED:  2 September 2021
HEARING DATE:  2 September 2021
JUDGMENT OF:  Riley AJ
APPEAL FROM:  Local Court
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent:  D Castor
Solicitors:
Appellant:Not applicable
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ril2102
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fuentes v Rigby [2021] NTSC 69

No. 22111030
BETWEEN:

RAYMOND ALFRED FUENTES

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 2 September 2021)

This is an appeal against a sentence imposed in the Local Court on 28 April 2021.
On that day the appellant pleaded guilty to one count of unlawfully possessing a controlled weapon at night contrary to the provisions of the Weapons Control Act2001. In the Local Court the appellant was represented by experienced counsel. He is now self-represented and appeals on the grounds that (a) the learned sentencing Judge erred by imposing a conviction upon a plea of guilty; and (b) the sentence was manifestly excessive in all the circumstances.
The agreed facts placed before the Local Court were that the appellant, who was then aged 31 years, was involved in a disturbance outside a nightclub in central Darwin at 3:30 am on 20 March 2021. Police attended and observed a large group of people at that location. The appellant was asked to leave the area and he was required to cease to loiter. He failed to follow police directions and was later arrested for fighting in a public place. As he was being searched prior to being placed in the rear of a police vehicle, a police officer located a flick knife in his left pocket. He could not provide a lawful reason for being in possession of a controlled weapon at night and the weapon was seized. At that time the area was a place open to and used by the public and the appellant appeared to police to be intoxicated. At the watch-house, when asked again, the appellant failed to provide a reason for the possession of the controlled weapon at night.
At the hearing the Local Court was informed that the appellant had previously been dealt with for being armed with an offensive weapon at night. The appellant informed this Court that the weapon was a baseball bat. On that earlier occasion the appellant was found guilty but the Court released him on a good behaviour bond without proceeding to conviction.
Counsel for the appellant informed the Judge that the appellant had been born and raised in Darwin, had left school at year 11, had worked in the hospitality industry and was, at the time of the offending, employed on a full-time basis as a security guard at a shopping centre. In relation to the knife, the Court was informed that he had purchased it from a general store, he had it for protection and it was in his pocket. The appellant accepted that it was wrong to be carrying the knife.
The learned sentencing Judge advised the appellant that he had thought about imposing a term of imprisonment but, in light of his relative youth and that he was a working man, he was convicted and placed on a 12 month good behaviour bond.
The appellant provided this Court with lengthy and often irrelevant written submissions which included a general discussion of the rule of law, a discussion on the nature of tort law, a range of quotes from Queen Elizabeth I, Winston Churchill and Bruce Lee, along with a six page speech on military leadership.
In the course of those written submissions, and relevant for present purposes, the appellant “remorsefully accepted full responsibility” for his actions. He noted the conviction had brought shame upon his family name. He indicated that he had been working in security and had lost his security licence. He had subsequently gained further employment doing demolition work and constructing a large warehouse. He indicated he had wished to obtain employment in “either ADF, police or correction officer”. He also said he had intended to go into the Australian Defence Force as “a truck driver, infantry and military police” and had undertaken an aptitude test for which the results were “withheld due to my charge of criminal conviction”. No evidence of that was provided however the appellant informed this Court that he had been rejected by the ADF on three separate occasions for different unrelated reasons.
The appellant asked this Court to take into account that he had suffered from a mental impairment. He described this as a “depression” and it appears to have occurred in 2011. I have not received any submission as to how any such condition occurring at that time may impact upon the present matter.
While the appellant’s employment in the security industry was raised with the court below, I note that the presently expressed intention of the appellant to seek to join the defence forces, the police or corrections was not a matter raised and there was no suggestion before the Local Court of any mental impairment. The appellant informed this Court that he made a conscious decision not to raise issues of mental impairment in the Local Court. Further, there is nothing before this Court to explain why matters relating to his employment ambitions were not raised at the time of the Local Court hearing and there is no direct evidence before this Court of those matters other than mere assertion in the written submissions.
Of course the onus rests upon the offender who wishes a court to take into account any possible loss of employment, in the absence of agreement with the prosecution, to call evidence to prove the loss, or the likelihood of prejudice. That did not occur in the Local Court.[1] There has been no application to present fresh evidence before this Court. However, even accepting the accuracy of those assertions for present purposes, the outcome of this appeal would, in my opinion, remain unchanged.
Manifest excess
It was not submitted that there was any identified error on the part of the Local Court and the effective ground of appeal pursued by the appellant was that the imposition of a conviction was, in all the circumstances, manifestly excessive. The principles governing manifest excess are well-settled. In the absence of specific and identifiable error, it is necessary for the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.[2]
The recording of a conviction
Section 7 of the Sentencing Act permits a court to make a range of sentencing orders including orders without proceeding to conviction. Section 8(1) of the Act then provides direction in relation to the decision whether or not to record a conviction. It is in the following terms:
(1) In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:
(a) the character, antecedents, age, health or mental condition of the offender; and
(b) the extent, if any, to which the offence is of a trivial nature; and
(c) the extent, if any, to which the offence was committed under extenuating circumstances.
As can be seen, the section requires a consideration of the “circumstances of the case” which includes the identified and enumerated factors. All circumstances must be taken into account by the sentencing court.[3]
The decision whether or not to record a conviction will, in many cases, be a significant part of the sentencing process. As has been observed “a conviction is a formal and solemn act marking the court’s, and society’s, disapproval of a defendant’s wrongdoing”.[4] It is a part of the sentence and must be considered when determining whether a sentence is proportionate to the offending. The result of not recording a conviction is to free the offender from some of the immediate legal consequences of having committed the offence.[5]
Referring to the criteria set out in s 8 of the Sentencing Act I note the appellant has not raised any matter of significance regarding his character, antecedents, age, health or mental condition. At the time of the offending he was a 31-year-old man and therefore not to be regarded as a youthful offender and entitled to the leniency which is often accorded such offenders. He had previously been dealt with for an offence under similar provisions and been afforded the benefit of a no conviction bond on that occasion. This was not an isolated offence committed by a youthful offender.
There was no reference to any mental impairment before the Local Court. There is no evidence before this Court that suggests any mental impairment which may have had relevance to the offending or the sentence.
The appellant does not suggest that the offence was of a trivial nature. The appellant was intoxicated when he was arrested outside a nightclub at

3:30 am on a Saturday morning. He had been involved in a disturbance and he had failed to move on when requested to do so by police. The knife was found in his pocket and his counsel informed the court he carried it for his own protection suggesting an intention to at least deploy it if, in his opinion, the circumstances warranted. The legislation which prohibits this conduct plainly has a social purpose and is designed to ensure people do not carry knives or other weapons in a public place. This is particularly so in the circumstances in which the appellant carried this knife. Those circumstances included that he was intoxicated in a public place which was heavily populated and he and others were involved in an altercation. Denunciation of such behaviour was a significant sentencing consideration. The offence carries a maximum penalty of imprisonment for two years reflecting the seriousness with which such offending is regarded.
It has not been submitted that there were any extenuating circumstances relevant to this offending. The appellant did not possess the weapon for any legitimate purpose. Given his employment as a licensed security guard he would be aware of the potential dangers involved in such conduct. Nevertheless, he carried the weapon with him.
The focus of the submissions of the appellant was the suggested interference with his capacity to continue or obtain employment in certain areas. Such a matter is a factor to be considered as part of the “circumstances of the case” within s 8 of the Sentencing Act. The experienced Local Court Judge was aware of the employment of the appellant as a security guard and, no doubt, of the impact a conviction may have upon his ability to remain employed in that capacity. However, his Honour considered this not to be trivial but, rather, a more serious example of this type of offending as evidenced by the remark that his Honour was considering a gaol term but that the appellant’s counsel had “convinced me not to send him to gaol”.
In my opinion the nature of the offending and the circumstances of the offender called for a public demonstration of disapproval of the appellant’s conduct. There is a public interest in the recording of a conviction and in the circumstances, this was not outweighed by the beneficial effect for the appellant of not recording a conviction.[6] General deterrence is a significant matter in determining an appropriate sentence in such circumstances.
I see no error on the part of the learned sentencing Judge. The appeal is dismissed.
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[1]Rigby v Benfell [2020] NTCA 9 at [31], [32].

[2] Rigby v Benfell [2020] NTCA 9 at [42].

[3] Carnese v The Queen [2009] NTCCA 8 at [14], Toohey v Peach (2003) A Crim R 437 at 440.

[4] The Queen v McInerney (1986) 42 SASR 111 at 124.

[5]Carnese v The Queen [2009] NTCCA 8 at [16].

[6]Rigby v Benfell [2020] NTCA 9 at [30].