Hales v Stevens - [2000] NTSC 97

Hales v Stevens [2000] NTSC 97
PARTIES:PETER WILLIAM HALES

v
DAVID WAYNE STEVENS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA55 OF 2000 (20006955)
DELIVERED:  14 December 2000
HEARING DATES:  6 December 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:I. Rowbottom
Respondent:  S. Cox
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  ril0030
Number of pages:  14

ril0030
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hales v Stevens [2000] NTSC 97
No. JA55 of 2000 (20005955)
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:

PETER WILLIAM HALES

Appellant

AND:

DAVID WAYNE STEVENS

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 14 December 2000)

The Crown has appealed against the sentence imposed upon the respondent (David Wayne Stevens) in the Court of Summary Jurisdiction on 7 September 2000. The respondent pleaded guilty to an unlawful assault with circumstances of aggravation, namely that: the victim suffered bodily harm; the assault was of a female by a male; and the victim was under the age of 16 years, namely 15 years.

The assault was correctly described by his Worship as a “dreadful, unrelenting” assault conducted by a 19 year old male person upon a 15 year old female person. There was no dispute regarding the circumstances of the assault. The victim was an ex-girlfriend of the respondent. He attended at her residence at 5am on Sunday 26 March 2000. He stood at her window and woke her up. He told her that he wanted to speak with her and she let him into the unit. He immediately began yelling at her and then he hit her in the head with his fists on about 10 occasions. During the course of the assault two other people who were staying at the unit yelled at him to stop. He continued to strike the victim to the head and to the face causing her to fall to the floor. He then kicked her several times to the ribs and to her chest and pushed her head into the tiled floor. At the time of kicking his victim he was wearing dress shoes.
One of the other residents of the unit intervened and the victim ran to her room and tried to close the door. The respondent entered the room and again struck her several times. She was crying. She told the respondent that she was hurt and bleeding and he told her that he did not care. He then pulled her by her hair into the loungeroom and told her that he would let her go if she told him with whom she had slept. She did so. A short time later the respondent again approached her and struck her several times to the head with his fists. She ran into the toilet and he followed her there. He forced her back into the loungeroom by grabbing her hair and he then shoved her into a wall. She ran to her bedroom and locked the door. The respondent kicked open the door. She was frightened and dropped to the floor and covered her head. The respondent turned her over and placed one of his hands around her throat and the other over her mouth and nose. He asked her if she knew what she had done was wrong, to which she responded that she had made a mistake. He then released his hand from her mouth and struck her to the face and asked her the same question again.
The victim pushed the respondent away but he caught up with her and dragged her into the loungeroom by her hair. He then punched her several more times to the face and kicked her once in the back. At that time police attended the premises and restrained the respondent. The assault lasted for approximately 20 minutes and comprised a total of about 30 punches.
The learned Magistrate heard detailed submissions on sentence and discussed the options available to him with counsel who appeared before him. He then went on to say:
“The course that I propose to take in this matter is a rehabilitative course, and in taking that course I acknowledge the dreadful nature of the assault, and I acknowledge that the nature of the assault, the fact that it was committed on bail, dictates a gaol term that must be served. But what I’m trying to do in this situation is look at the big picture and on behalf of the community, cross my fingers, cross the community’s fingers and put the defendant in a situation where he can try to get through his problems.”
He then sentenced the respondent to imprisonment for a period of 12 months commencing on 7 September 2000. He ordered that the sentence be suspended on 8 September 2000 and he specified a period of 3 years for the purposes of s 40(6) and s 43 of the Sentencing Act. The need to serve an actual period of imprisonment arose because of the effect of s 78BA of the Sentencing Act. This was because the respondent had committed another assault on 23 January 1999 to which he had pleaded guilty before the Court of Summary Jurisdiction on 2 June 2000. This was a “prior” offence for the purposes of that section. The release of the respondent was subject to conditions including that for a period of 12 months he obey the directions of the Director of Correctional Services, that he reside at the Council for Aboriginal Alcohol Program Services and complete the indigenous family violence pilot program, that upon completion of that program he reside with the Salvation Army in Darwin and complete the Bridge program and, finally, that for a period of 12 months he supply specimens of urine or blood as directed by the Director with a view to determining if he had consumed proscribed drugs.
It is the submission of the Crown that the sentence of 12 months imprisonment was manifestly inadequate and, further, that the order suspending the term of imprisonment “after only one day” also resulted in a sentence that was manifestly inadequate. In addition the Crown submitted that the learned Magistrate erred in placing undue weight on the respondent’s personal circumstances and prospects for rehabilitation and gave insufficient weight to the principles of general deterrence and specific deterrence.
A Crown Appeal
The principles that apply to a Crown appeal are well understood and have been addressed in many decisions of this Court. They are conveniently summarised by the Full Court of the Federal Court of Australia in Tait (1979) 46 FLR 386 at 388 as follows:
“An appellate Court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge 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 Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error…”.
In Raggett (1990) 50 A Crim R 41 at 47 Kearney J said of a Crown appeal based upon the ground that the sentence was manifestly inadequate:
“In general, then, to establish the existence of the necessary (unidentified) error the Crown must show that the sentences are not just arguably inadequate but so very obviously inadequate that they are unreasonable or plainly unjust.”
The Grounds of Appeal
The principal ground of appeal argued in this matter was that the sentence was manifestly inadequate. The remaining grounds of appeal relating to the failure to give sufficient weight to the objective circumstances of the offending, the failure to give sufficient weight to principles of general deterrence and specific deterrence and the placing of undue weight upon the personal circumstances and prospects for rehabilitation of the respondent were presented as arguments in support of the principal ground.
The objective circumstances of the offence were serious. It took place in the home of the victim over a period of some 20 minutes. It ceased only upon the arrival of police officers. The victim was punched approximately 30 times, kicked to the ribs, chest and back and dragged by the hair. She was held forcefully by the throat and had her head banged on the hard surface of the floor on several occasions. It was, as counsel for the appellant submitted, a prolonged and vicious assault.
The offence was further aggravated by the fact that it occurred whilst the respondent was on bail. He was on bail in relation to an alleged assault. It is settled law that persons who take advantage of their liberty on bail to commit further crimes will receive salutary penalties for the reason that they have abused their freedom on bail by taking the opportunity to commit such crimes: R v Richards (1981) 2 NSWLR 464 at 465; R v Wurramara (1999) 105 A Crim R 512 at 514.
The learned Magistrate recognised the seriousness of the assault. He set out the history of the matter in some detail and observed that he took into account “the dreadful, unrelenting nature of the assault”. He so described the assault on a number of occasions and he also referred to it as being “cruel”. He said there was only one small mercy to come out of the matter and that was that the victim was not more seriously injured.
The effect of the assault upon the victim was outlined in her victim impact statement which became Exhibit P3. The statement described her injuries in detail, the physical signs that were then still apparent and the disturbing effect it had upon her life and her relationships with others. His Worship expressed some concern that the words in the statement reflected the “words of the statement taker” and not the words of the victim herself. Notwithstanding those observations his Worship adopted what was set out in the victim impact statement and went on to observe:
“However the cold hard fact is that a 15 year old and indeed any person should not be subject to an assault of this nature which has the potential to rob that person of whatever innocence they have remaining. Fifteen year old girls should be at home, going to school, enjoying life, rather than being assaulted by jealous 19 year old ex-boyfriends.”
A significant complaint of the appellant was that the learned Magistrate placed undue weight upon the respondent’s personal circumstances and prospects for rehabilitation. It is true that his Worship spent a substantial amount of time considering the personal circumstances of the respondent and his prospects for rehabilitation. That is an entirely appropriate course for him to have adopted.
His Worship noted that the respondent was 19 years of age and that he had led a difficult life involving substantial violence directed towards him by his stepfather. In discussing the respondent’s childhood his Worship said:
“The defendant has had an inappropriate upbringing. He has been taught to intimidate. He has been taught to stand over people. He has been taught to be violent. He has lived on the streets since the age of 14 and he, as can be guessed, has become an under age drinker and a user of drugs.”
However he went on to note that the respondent had made moves towards rehabilitation. Prior to this assault he had recognised that he had a difficulty and he approached the Aboriginal and Islander Alcohol Awareness and Family Recovery Program. He was referred by that organisation to Amity House for anger management skills. The catalyst for that approach may have been assault charges preferred against him but he also observed that he did not want to be “an angry person for my son’s benefit”. He also placed himself into the CAAPS program which deals with indigenous family violence. That is a residential program. At the time of the sentencing by his Worship the respondent was undertaking that program. Upon completion of that program it was proposed that he undertake the Bridge program with the Salvation Army. That program is an alcohol and drug education and treatment program.
It was the submission of the Crown before me that the attendances by the respondent upon organisations that could provide him with assistance, and his enrolment in relevant courses, was an opportunistic and cynical exercise on the part of the respondent. That submission had not been made to his Worship. It was not supported by the evidence of the psychologist Mr Joblin who reported that the respondent had a strong motivation to “turn his life around” and an awareness of the need to do so. The information available to me does not support the submission made by counsel for the Crown.
His Worship was aware of the difficulties facing the respondent. He noted that he was “struggling and he was trying to do something about the life and the conditioning that he has as a result of the things to which he was exposed as a child and during his years on the street from the age of 14.” He noted that the respondent had a “long way to go” and would be grappling with his difficulties with drugs and his difficulty in dealing with relationships. However his Worship felt that the first steps had been taken along the road to rehabilitation and he did not want to destroy what had thus far been achieved in the hope that more may be achieved as time went on.
The Crown submitted that there was little evidence that the respondent would change his aggressive outlook and pointed to the fact that he had had difficulties at Banyan House and that both Mr Joblin and his Worship recognised the ‘fragility’ of the respondent in relation to his difficulties concerning alcohol and drug use and in relation to provocation.
The Crown also submitted that there was no evidence of remorse. This is so. On the other hand there was a plea of guilty, there were efforts to obtain assistance from appropriate agencies and from a psychologist and there has been the undertaking of courses. Whilst there may not be a clear expression of remorse in relation to the particular offence, and this, in the circumstances, is most regrettable, there is a basis for recognising in the respondent a desire to take steps to ensure such conduct does not occur again. The matters raised by counsel for the Crown are clearly matters of serious concern.
This is a matter in which principles of general deterrence and specific deterrence ought to have been accorded significant weight. Given the expression of the fragility of the respondent in relation to his difficulties with alcohol, drugs and provocation there is a clear need for personal deterrence. The psychological report tendered on his behalf revealed a “considerable history of disputation between Mr Stevens, his family and others”. In relation to the present offence there was, as the Crown has submitted, no indication of remorse and he indicated to the psychologist shortly prior to the plea that when he found that the victim had other sexual relationships he believed that “he had a degree of legitimacy” in conducting himself as he did. The psychologist noted that the respondent had a subsequent de facto relationship with a woman who is aggressive and that this causes problems for him. Mr Stevens is not presently living with his de facto wife. The psychologist reported that “there will be little doubt that this man would answer any demonstrations of aggression by her (his de facto wife) with his own aggression.” There is an obvious need for personal deterrence.
Similarly there is an obvious need for general deterrence. Men in the position of the respondent should be aware that if they resort to violence upon another of a kind seen in this case in all but the most exceptional case that will be met with a period of actual imprisonment.
His Worship did not expressly address the issues of deterrence. It is clear from the sentence that he fashioned that personal deterrence coupled with rehabilitation was in the forefront of his mind. Indeed he took the respondent through the conditions of release in some detail and obtained his acknowledgment that if there was any breach he may have to serve 12 months imprisonment. He did not address the issue of general deterrence and, in particular, he did not consider what effect the effective fully suspending of the term of imprisonment would have on the issue of general deterrence.
In Strecker v Trenerry (1997) 93 A Crim R 407 Mildren J said at 414:
“… it cannot be said that the imposition of a fully suspended sentence of imprisonment has the same effect, so far as general deterrence is concerned, as an actual sentence of imprisonment … it would be obvious to anybody that, so far as general deterrence is concerned, an actual sentence of imprisonment is far more likely to deter others than a fully suspended one.”
With respect I agree with those observations.
The main focus of his Worship was to provide every opportunity for the respondent in these proceedings to be rehabilitated. This is clear from the passage quoted above at para 5 and other observations made by his Worship. Those observations include the following:
“The approach that I take in this case is this. The defendant has committed a dreadful assault. The defendant richly deserves to be gaoled, and by that I mean receive a term of imprisonment that he has to serve. The problem I have is that I have a fear that, if I gaol him, he will revert to type in gaol, that the little bit of progress that he has made to date will be wasted. … My worry is that, if he goes to gaol, the fire of rehabilitation which has been fanned to date will be extinguished.”
In my opinion the learned magistrate considered all of the appropriate matters save that he did not give adequate attention to the issue of the lack of remorse on the part of the respondent and the need for general deterrence.
Although the sentence of 12 months imprisonment is less than one would expect in circumstances of an assault of this kind with all its attendant circumstances I am unable to say that it is manifestly inadequate. However the failure to impose an actual term of imprisonment (ignoring the very short period actually imposed) was plainly wrong in my opinion. As has been acknowledged by all this was a serious assault by a 19 year old male upon a 15 year old female involving, as it did, blows to the head and face and the use of kicking whilst the victim was on the floor. It occurred in her home in the early hours of the morning. The intervention of others failed to stop it. The assault only ceased with the arrival of the police. The seriousness of the incident was aggravated by the fact that the respondent was on bail at the time in relation to another assault matter. Further, although this was his first conviction for assault, he was not a first offender and he had been given the benefit of good behaviour bonds before. In all of the circumstances I find that a term of actual imprisonment was required and the suspension of effectively the whole of the sentence led to the sentence actually imposed being manifestly inadequate. The appeal is allowed.
I have considered whether I should intervene or leave the sentence undisturbed in the exercise of the residual discretion which is vested in this Court when hearing a Crown appeal: R v Potter (1994) 72 A Crim R 108 at 115; R v Stokes (1997) 138 FLR 137 at 146. In the time between the sentence being imposed and the present the respondent has not been subjected to any obligation which he would not have undertaken at some time in any event. It is appropriate that I intervene. However I bear in mind the so-called “double jeopardy” principle applicable in cases of a successful Crown appeal: R v Wurramurra (supra at 525).
It is necessary for me to re-sentence the respondent. Although I regard the head sentence imposed by his Worship as being at the bottom of the range of sentences available I do not propose to interfere with that sentence given that this is a Crown appeal. I have revisited and reconsidered all of the matters taken into account by his Worship. In particular I accept that the respondent has worthwhile prospects of rehabilitation. The respondent will be sentenced to 12 months imprisonment. I order that the sentence be suspended after he has served a period of 3 months imprisonment and I specify pursuant to s 40(6) a period of 2 years from 7 September 2000 as being the period during which the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 43 of the Sentencing Act.

Further the order for release is subject to the following conditions:
1.For a period of 12 months from the date of his release he is to accept supervision and obey the reasonable directions of the Director of Correctional Services as to reporting, residence, employment, psychological counselling including counselling for empowerment or domestic violence concerns, and drug and alcohol counselling;
2.Unless he has already done so he is to commence and complete the Bridge program with the Salvation Army at Darwin and is to do nothing to cause his discharge from the program.
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