Jones v Hales and Rigby

[2003] NTSC 73

Jones v Hales and Rigby [2003] NTSC 73

PARTIES:JERRY JONES

v

PETER HALES and

KERRY LEANNE RIGBY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:JA 106 of 2003 and JA 107 of 2003

DELIVERED:  27 June 2003

HEARING DATES:  24 June 2003

JUDGMENT OF:  RILEY J

Counsel:

Appellant:P. O’Brien

Respondent:  S. Ozolins

Solicitors:

Appellant:Katherine Region Aboriginal Legal Aid Service

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  ril0321

Number of pages:  14

ril0321

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

Jones v Hales and Rigby [2003] NTSC 73
No JA 106 of 2003 and JA 107 of 2003

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 Katherine

BETWEEN:

JERRY JONES

Appellant

AND:

PETER HALES and

KERRY LEANNE RIGBY

Respondents

CORAM:    RILEY J

REASONS FOR JUDGMENT

(Delivered 27 June 2003)

1. On 16 June 2003 the appellant pleaded guilty to various offences that occurred on 20 March 2003, 12 June 2003 and 14 June 2003.  He was convicted of each offence and sentenced to a total of 8 months and 1 week imprisonment.  The sentence was not suspended in part or in whole.  The appellant appeals against that sentence on the basis that it is manifestly excessive in all the circumstances and, further, that the learned sentencing magistrate failed to properly and/or sufficiently take into account the appellant’s subjective circumstances in determining whether to suspend or partly suspend the sentence of imprisonment.

1. The offences arose out of the relationship between the appellant and his de facto wife. At the relevant time they had been in a relationship for some years. On 11 October 2002 a restraining order pursuant to s 4 of the Domestic Violence Act was taken out by the victim against the appellant. On 18 November 2002 that order was varied from a non-contact order. There is no dispute that the appellant was aware of the terms of the order which, in its amended form, included that he not assault or threaten to assault his wife and that he not act in an offensive or provocative manner towards her.

2. On 20 March 2003 the appellant was drinking wine in Darwin with his wife and three friends.  He was seated on the ground when his wife stood up and started to dance and sing.  He got up, walked towards her and punched her “with force” five times with his closed fist.  Three of those punches struck her in the mouth, nose and left cheek area.  The force of the assault caused her to fall to the ground.  She then got up and ran away from the appellant but he followed, grabbed her hair and dragged her towards a phone box on the other side of the road.  He then let her go and walked away.  Police attended and the appellant was arrested.  In his record of interview he acknowledged that he was aware of the conditions of the restraining order, and when asked why he punched his victim he replied:  “She was jealousing me and I get jealous sometimes too”.  As a result of the assault the victim received a “blood nose” and a deep split in her lower lip which required hospital treatment.  The appellant was not charged with assault but only the offence of having breached a restraining order.  There is a maximum penalty of imprisonment for 6 months applicable to a first offence of that kind.

3. The appellant was released on bail.  Whilst on bail and whilst the domestic violence order remained in place, he again assaulted his victim.  On 12 June 2003 they were at a community near Timber Creek.  The appellant had been drinking and became intoxicated.  He started to argue with his victim and after a time he stood up, approached her, and punched her with a clenched fist to the mouth.  The force of the blow caused her lip to be cut and bleed.

4. On 14 June 2003 the appellant and his victim were in Katherine.  Again he was intoxicated.  An argument developed with his victim “because she would not remove his jeans”.  He approached where she was standing near a washing machine and slapped her in the mouth, effectively in the same place that he had punched her on 12 June 2003.  Police were called and the appellant was taken into custody.  He declined to participate in an electronically recorded interview.  His victim sought treatment at the Katherine Hospital.

5. In relation to the offence committed on 20 March 2003, the appellant pleaded guilty to having failed to comply with the terms of an order under the Domestic Violence Act and, in that regard, was sentenced to imprisonment for a period of 4 months and 1 week. In relation to his conduct on 12 June 2003, he pleaded guilty to an offence of failing to comply with the terms of an order under the Domestic Violence Act and to aggravated unlawful assault. He was sentenced to imprisonment for 2 months in relation to the assault, and a conviction but no further punishment was ordered in relation to the breach of the restraining order. In relation to the conduct on 14 June 2003 he was again charged with aggravated assault and with having failed to comply with the terms of a restraining order. In relation to those offences he was convicted and sentenced to imprisonment for 2 months for the assault and there was a conviction recorded but no other punishment in respect of the breach of the restraining order.

6. The learned sentencing magistrate was informed that the appellant had no recollection of any of the incidents but he accepted that they occurred.  It seems his recollection was impaired as a result of his state of intoxication on each occasion.  Notwithstanding that lack of knowledge, he entered a plea at the first available opportunity.  His Worship discounted the head sentences that he imposed to reflect the early plea of guilty and there is no complaint in that regard.

7. The court was informed that the appellant was then aged 33 years.  He had a strong work record over some 20 years but had been unemployed since being made redundant in 2002.  His work had been on stations and he had been consistently in employment since he was 13 years old.  When he became redundant in 2002 he began to abuse alcohol and he acknowledged that some form of alcohol rehabilitation would be appropriate for him.  He had not been before the court for offences of this kind before.

8. In sentencing the appellant, his Worship noted that he had breached the restraining order on three separate occasions and, further, that the two offences committed in June occurred whilst the appellant was on bail for the offence committed in March.  Those were aggravating features of the separate offences to which the appellant pleaded guilty.  His Worship went on to observe:

   “In this case the prosecution has suggested a suspended gaol term.  You, through your solicitor, want something other than an actual gaol term.  You have spoken about community work, you have spoken about rehabilitation.  I will be blunt here.  I think your prospects of rehabilitation are poor, and they are poor for the reason that you have had many little signals or many little triggers to try to turn your life around.”

9. His Worship referred to the service of the restraining order, the interaction with the police on 20 March 2003 and the further assault on 12 June 2003 as matters which may have alerted the appellant to “get your life in order”.  He then went on to observe:

   “Quite frankly, I don’t see the sense in justifying – I don’t see the sense in suspending the term of imprisonment.  I think your prospects of rehabilitation are poor.  Putting aside your prospects of rehabilitation, a message has to be sent to people in the community that breaches of domestic violence orders are to be severely dealt with.  It involves breaching a court order.  A message has to be sent that people should not breach court orders.  A message has to be sent to people in the community that a spouse is not a punching bag; a spouse is not there to be hit, whether that spouse is an Aboriginal spouse or a non-Aboriginal spouse.”

10. The sentences complained of were then imposed.  His Worship made it clear that, save for the March 2003 offence, he did not impose any penalty in relation to the breaches of the restraining order because each breach had been taken into account when the sentences were imposed in respect of the aggravated assaults.

11. The general principles applicable to an appeal based upon a ground that a sentence is manifestly excessive are well known.  In the absence of identified error, an appellant seeking to establish that a sentence was manifestly excessive must show that the sentence was not just arguably excessive but that it was so “very obviously” excessive that it was “unreasonable or plainly unjust”:  Raggett, Douglas & Miller (1990) 50 A Crim R 41 at 47; Salmon v Chute (1994) 94 NTR 1. The presumption is that there is no error in the sentence. It is not enough that this court would have imposed a less or different sentence. There must be some reason for regarding the sentencing discretion as having been improperly exercised: Cranssen v The King (1936) 55 CLR 509 at 519-520. The appellate court interferes only if it be shown that the sentencing judge or 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 judge or magistrate said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.

    The sentence was manifestly excessive

12. The appellant contends that the sentences of imprisonment were, in each case, manifestly excessive.  In relation to the offences that occurred on 12 and 14 June 2003 the appellant was sentenced to imprisonment for a period of 2 months each.  The assaults upon the victim were serious, although not as serious as the earlier assault.  On each occasion the assault involved a blow to the head and occurred in circumstances where the appellant was the subject of a restraining order of which he was aware and which he had previously breached.  Although he had not then been dealt with for any breach, he was aware that his violent conduct was in breach of the order.  In addition, he was on bail for an offence involving actual violence to the same victim.  I am unable to agree with the submission of the appellant that the sentences were manifestly excessive.

13. In relation to the offence which occurred on 20 March 2003 the situation is different.  It is to be noted that the appellant was not charged with aggravated assault on that occasion.  The penalty for aggravated assault is imprisonment for 5 years.  He was only charged with breaching a restraining order for which the maximum penalty is 6 months imprisonment.  Why this offending should have been treated differently from the later offending is not explained.  However, the fact remains that the maximum penalty available to his Worship was imprisonment for 6 months.  The fact that the appellant in these proceedings could have been charged with another offence, such as aggravated assault, carrying a heavier penalty is irrelevant in imposing a sentence for this offence:  R v Perez-Vargas (1986) 8 NSWLR 559 at 561.

14. In sentencing the appellant on this count, the learned sentencing magistrate stated that he started with a penalty of 5 months imprisonment which he then reduced to 4 months and 1 week to reflect credit due for the plea of guilty.  In so doing his Worship adopted a starting point very near to the maximum penalty available.  Whilst the offending of the appellant must be seen as serious, it is not able to be characterised as amongst the most serious offending of its kind.  It is easy to imagine offences of much greater seriousness under the section.

15. In order to determine the appropriate sentence it is necessary for the court to have regard to the maximum penalty applicable to the offence. The maximum penalty indicates the view of the legislature as to the seriousness with which the community views the offence charged. Section 5(2)(a) of the Sentencing Act specifically requires the court to have regard to the maximum penalty prescribed for the offence. That penalty is reserved for the worst type of case falling within the relevant prohibition: R v Taitand Bartley (1979) 24 ALR 473 at 484; Ibbs v The Queen (1987) 163 CLR 447 at 452. The expression “the worst cases of the sort” should be understood to apply to a range of offending under the relevant provision rather than “for the worst offence of the kind” dealt with by it. The offence may be within that range notwithstanding that the offending could have been worse than it was: Bensegger v R (1979) WAR 65 at 68. As was observed by King CJ in R v Morse (1979) 23 SASR 98 at 99:

    “To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”

16. The learned sentencing magistrate characterised the offending on 20 March 2003 as “getting towards the top of the range for breaches of domestic violence orders”.  In adopting a starting point of imprisonment for 5 months, his Worship has characterised the actions of the appellant as approaching the worst cases of the kind falling under that provision.  Although the offending was serious it was not of that magnitude.  It did not involve the use of weapons, it did not continue over a lengthy period of time, the appellant desisted of his own volition, the injuries were of moderate severity but were not long-lasting or life threatening, there was no indecency involved, there was, at that time, no continuing threat.  The offending could have been much more serious than it was.  In my view his Worship fell into error in adopting the commencement point of imprisonment for 5 months.  The sentence imposed on this count was manifestly excessive when considered in the context of the maximum penalty available.  The appeal against this sentence is allowed.

    The decision not to suspend

17. It follows from what I have said above that the appeal on this ground must be allowed and the appellant resentenced for that offence.  However, in my view, his Worship also erred in declining to suspend the sentence or any part thereof.

18. His Worship regarded the prospects for rehabilitation of the appellant as “poor” solely because the appellant failed to heed the “many little signals or many triggers to try to turn your life around”.  He said:  “I don’t see the sense in suspending the term of imprisonment.  I think your prospects of rehabilitation are poor”.  He then went on to say that a message has to be sent to people in the community that breaches of domestic violence orders are to be severely dealt with.  Whilst that observation may be correct, it is not the only matter to be taken into account.  It was necessary for the learned sentencing magistrate to turn his mind to various other matters before deciding whether or not to suspend the sentence in whole or in part.

19. It is apparent from the sentencing remarks that his Worship gave either no weight or very little weight to the matters of mitigation that were placed before him in relation to the appellant.  Those matters, as identified by the appellant in submissions before me, included his early plea of guilty, his acceptance of responsibility for his actions, his remorse, his 20 years of employment in cattle stations, that he had no convictions for assault or breaches of domestic violence orders prior to these offences, that he had a fine employment record but had  been made redundant from his last job and began consuming alcohol to excess, that he acknowledged that he had a problem with alcohol and was willing to undertake rehabilitation to avoid future offending, that he had committed no offences at all in the 9 years since 1994 and that he had never before been sentenced to imprisonment.  Those were matters that were required to be considered.  I agree with his Worship that breaches of domestic violence orders are, generally speaking, to be dealt with in a way that demonstrates that people should not breach such orders.  I also agree that the appellant had failed to mend his ways when that may have been expected.  However, by limiting the matters which he considered to those negative considerations, further error occurred in his Worship’s approach to this aspect of the sentencing process.

20. His Worship made reference to the various matters to which the appellant has referred.  He did so in the process of determining the appropriate head sentences.  In considering whether to suspend any part of that sentence, it seems those matters were ignored or, at best, not given sufficient weight.  It seems clear from the remarks of his Worship that he did not consider them for this purpose.  In my view his Worship adopted an unacceptably narrow focus when he turned to consider the issue of whether the sentence should be suspended in whole or in part.  He looked only to the appellant’s “poor prospects of rehabilitation” determined solely by reference to his failure to react to the “signals or triggers” referred to by his Worship.  The learned sentencing magistrate did not consider the appellant’s prospects of rehabilitation in light of all of the circumstances surrounding the appellant.  He did not consider whether to suspend the whole or part of the sentence in light of matters other than those relevant to his rehabilitation:  R v Dinsdale (2000) 115 A Crim R 558 at 564, 577 et seq. Error occurred and the appeal under this ground is allowed.

21. I am obliged to resentence the appellant.  I have indicated that the sentences imposed in relation to the events of 12 and 14 June 2003 were within the range available to his Worship and I do not propose to alter those sentences.  In relation to the offence committed on 20 March 2003, I set aside the sentence imposed by his Worship.  I adopt a starting point of 15 weeks imprisonment which I reduce to 3 months to reflect credit for the plea of guilty.  I sentence the appellant to imprisonment for a period of 3 months in relation to the offence committed on 20 March 2003.

22. In my view it is appropriate for the sentences to be served cumulatively.  The offences were quite separate, occurring in different locations and on different days.  The March offence occurred in Darwin, the other two offences occurred in June in Katherine and in Timber Creek.  Whilst the appellant may have been intoxicated on each occasion and the victim on each occasion was his wife, the offences were each separate and distinct and deserve separate penalties.

23. I have considered the issue of totality.  The total sentence is one of imprisonment for 7 months and, in all the circumstances, I regard that as an appropriate sentence for the whole of the offending in all of the circumstances.

24. In my view it is appropriate to suspend part of the sentence. For reasons that I have addressed, I regard the appellant as having some prospects for rehabilitation. He has pleaded guilty at an early time, he has demonstrated remorse, he is willing to undertake rehabilitation courses, he has been out of trouble for almost 10 years and he has not offended in this way before. The penalty imposed must reflect an element of both general and personal deterrence and, to that end, I consider it appropriate that an actual period of imprisonment be imposed. In all the circumstances I direct that the sentence be suspended after the appellant has served a period of 3 months dated from the day upon which he entered prison. It will be a condition of the suspension of the balance of his sentence that he place himself under the supervision of the Director of Correctional Services and that he obey the directions of the Director, including as to the undertaking of alcohol rehabilitation courses. Such courses may have a residential requirement. I set a period of 12 months as the operational period for the purposes of s 40 and s 43 of the Sentencing Act.

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