Hales v Jamilmira

[2003] NTCA 9

Hales v Jamilmira [2003] NTCA 9

PARTIES:HALES, Peter William

v

JAMILMIRA, Jackie Pascoe

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 17/2002 (20112873)

DELIVERED:  15 April 2003

HEARING DATES:  13 March 2003

JUDGMENT OF:  MARTIN CJ, MILDREN & RILEY JJ

REPRESENTATION:

Counsel:

Appellant:R Wild QC

Respondent:  C McDonald QC

Solicitors:

Appellant:Director of Public Prosecutions

Respondent:  North Australian Aboriginal Legal Aid Service

Judgment category classification:      C

Judgment ID Number:  mar0311

Number of pages:  47

mar0311

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

[2003] NTCA 9
No. AP17 of 2002

BETWEEN:

PETER WILLIAM HALES

Appellant

AND:

JACKIE PASCOE JAMILMIRA

Respondent

CORAM:    MARTIN CJ, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 15 April 2003)

MARTIN CJ:

1. On 30 April 2002 the respondent was convicted, by the Court of Summary Jurisdiction sitting at Maningrida, upon his pleas of guilty for that on 20 August 2001 he had unlawful sexual intercourse of A, who was then a female under the age of 16 years, namely 15, contrary to s 129(1)(a) of the Criminal Code, and that on 21 August 2001 he discharged a firearm in a manner that was likely to endanger, annoy or frighten any person, contrary to s 84(1) of the Firearms Act. On the first count he was sentenced to

   
   

   13 months imprisonment to be suspended after serving four months and the court fixed an operational period of 18 months. On the second count he was sentenced to two months imprisonment. The two sentences, by operation of s 50 of the Sentencing Act, were to be served concurrently.

1. From those sentences the respondent appealed to the Supreme Court, under s 163 of the Justices Act.  The sentences imposed by the learned Magistrate were set aside.  In substitution the respondent was sentenced to 24 hours imprisonment on the first count and 14 days imprisonment on the second.  They were also to be served concurrently.

2. The appellant, complainant in the Court of Summary Jurisdiction, now appeals from the whole of that judgment as of right pursuant to s 51 of the Supreme Court Act. He asserts that his Honour failed to give appropriate weight to the legislation requiring a sentence of actual imprisonment to be imposed in respect of the first count and in summary, that his Honour gave too much weight to certain cultural factors surrounding the respondent’s conduct and too little to the need expressed in the legislation to protect young girls.

3. As to the firearms offence, the appellant says that his Honour erred in failing to give sufficient weight to the purpose for which the shotgun was discharged, namely to preserve a relationship against the wishes of A and her family.

4. This appeal also raises issues going to a suggested change of attitude by the respondent before his Honour and this Court, and the principles applying generally to an appeal by the Crown.

5. The facts upon which the learned Magistrate acted,…