Kerry Leanne Rigby v Frank James Nawia - [2020] NTCA 12

Kerry Leanne Rigby v Frank James Nawia [2020] NTCA 12
PARTIES:RIGBY, Kerry Leanne
v

NAWIA, Frank James

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 29 of 2020 (21939388)
DELIVERED:  4 December 2020
HEARING DATES:  4 December 2020
JUDGMENT OF:  RILEY AJ
REPRESENTATION:
Counsel:
Appellant:I. Rowbottam
Respondent:  M. Aust
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    C
Judgment ID Number:  Ril2003
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v Nawia [2020] NTCA 12

No. LCA 29 of 2020 (21939388)
BETWEEN:

Kerry Leanne Rigby

Appellant

AND:

Frank James Nawia

Respondent

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 4 December 2020)

This is a prosecution appeal against the sentence imposed by a Local Court Judge on the respondent on 12 June 2020. The sole ground of appeal is that the sentence was manifestly inadequate.
The charges were contested and the hearing proceeded over a number of hearing dates. At the conclusion of the hearing the Local Court Judge found the respondent guilty of four offences arising out of a single episode. He was sentenced as follows: Count 1; disorderly conduct – $300 fine plus victims levy; Count 2; assault police causing harm (Constable Derksen) – one month imprisonment; Count 3; assault police causing harm (Constable Jankowski) – three months imprisonment; and Count 4; resist arrest – two weeks imprisonment.
The offending occurred at about 4:30 am on 26 October 2019 in Mitchell Street in Darwin. There was a minor conflict between the respondent and another which led to the respondent conducting himself in a manner which led to his arrest. His conduct was described as swearing loudly, waving his arms in the air and was, as his Honour found, “sufficient to attract the proper attention of police and give rise to the arrest of behaviour disorderly (sic)”. It was subsequent to the arrest that the offences took place. His Honour found that the two police officers were assaulted by the respondent with Constable Derksen receiving abrasions and Constable Jankowski suffering a bite to his shin through his trousers giving rise to bruising and a break of the skin. This injury was described as “superficial” only requiring medical attention in the form of disinfecting. The assaults did not involve the use of weapons nor punches or kicks but, as his Honour observed, “biting is serious in itself”. The police were not outnumbered with four offices being involved in apprehending the respondent and placing him in the police vehicle.
His Honour found the incident to have been protracted, occurring over a period of many minutes, and this was due in large part to the respondent resisting police. His Honour concluded that the behaviour of the respondent:
….was not planned, it wasn’t sophisticated, it was spontaneous, it was clearly informed by intoxication and also informed, to some extent, by what might generally and fairly be described as a defiant attitude at the time.
At the time of sentencing it was noted that the respondent was aged 30 years, had a good work history, was “clearly intelligent” and when living in a remote community contributed strongly to community life. His prospects for rehabilitation were assessed as good. It was noted that he had previous dealings with the courts including one conviction for a “low end” assault “constituted by a push” for which he was placed on a good behaviour bond, the terms of which he honoured. There was a series of other matters that did not result in a conviction. Save for the three days spent in custody in relation to this matter, at the time of sentencing he had not previously been to prison.
In all the circumstances the sentencing Judge determined that the assaults were at the “lower or low end of the spectrum”. His Honour observed that people who assault police can expect to have a sentence of imprisonment imposed and, in so doing, referred to various authorities. His Honour observed that the court must have regard to the question whether three days incarceration (which the respondent had already served) with any further imprisonment being suspended on conditions would offend the public conscience. His Honour noted that Correctional Services was willing to supervise the respondent and that supervision included a power to direct rehabilitation for alcohol. Further, it was observed that the respondent had his own accommodation, was seeking employment and had been receiving pastoral support from the Uniting Church to which he was committed. His Honour then stated:
In all of the circumstances, and despite that I certainly accept that further time in custody before suspension would be warranted or within range in Mr Nawia’s case I do intend to suspend his sentence of imprisonment today.
The penalties then imposed have been set out above. With orders for concurrency the effective sentence was to imprisonment for a period of three months backdated to 10 June 2020 and suspended forthwith (ie 12 June 2020) on a range of conditions.
The Crown appeals on the sole basis that the sentence was manifestly inadequate.
Crown appeals
As has been observed on many occasions Crown appeals against sentence should be a rarity and brought only to establish some matter of principle and to allow the Court of Criminal Appeal to lay down principles for the guidance of courts sentencing offenders.[1] Manifest inadequacy in a sentence amounts to such an error of principle that the Crown is entitled to have an appeal court correct.[2]
The principles applicable to an appeal against sentence based upon manifest inadequacy are well-known. The presumption is that there is no error. It is incumbent upon the appellant to show that the sentence was clearly and obviously, not just arguably, inadequate; that is to say it must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[3] Where manifest inadequacy is found the appeal court retains a residual discretion as to whether the respondent should be resentenced.[4]
In the present case no material was placed before the court in an endeavour to identify whether or not the sentence fell within or without a tariff or, indeed, to establish whether there is a tariff for such offending in the Local Court. Consistent with earlier decisions in this regard and the very wide range of circumstances which apply to offences of this kind I doubt that a sentencing tariff can be established.[5]
In Bellis v Burgoyne [2003] NTSC 103 at [14]-[18] Mildren J helpfully addressed a number of principles applicable to sentencing offenders for the offence of assaulting police. Those principles included that each case requires individual assessment and treatment.[6] There is no presumption that there must be a gaol term.[7] However, an immediate gaol sentence can generally be expected in some cases including in the case of a deliberate assault in order to impede police from performing their work.
The appellant submitted that the offences were serious as evidenced by the fact that they involved an assault causing harm to two police officers keeping order in Mitchell Street. It was noted that drunken violence in the area is prevalent and that the respondent showed a total disregard for police directions. It was submitted that the offending was not momentary but protracted and went beyond pulling and scratching to include biting.
It was submitted, as his Honour found, that the respondent showed no genuine remorse for his conduct.
On the other hand it is to be noted that whilst the assaults in fact impeded the police in the performance of their work they occurred in the course of the respondent himself acting in defiance of police directions. The assaults were not a deliberate attempt to stop police performing duties in relation to others. The arresting officers were not in a situation where they were outnumbered and no weapons were involved. It was not suggested that the officers were put in fear of their safety. The injuries they suffered, whilst both regrettable and unacceptable, were minor in nature.
Consideration
The written submission of the appellant encapsulated the complaint in the following summary:
Given the gravity of the offending, the fact that there are two separate charges of assaulting police, causing each of them harm, combined with a significant “resist police” in attempting to evade apprehension, it is clear that three days actual custody is far from adequate, and indeed is inadequate.
No complaint was made as to the manner in which the sentencing Judge ordered concurrency of the sentences. The fact that the offending arose out of the one course of conduct or episode and that the individual offences were substantially interdependent called for such an approach.
It is not in dispute that police officers working at night in areas such as Mitchell Street in Darwin may be placed in a vulnerable position. It is important that the courts impose sentences for assaults committed against police in the execution of their duty which take into account the position of police in our community. The community is dependent upon police officers to maintain law and order and for protection of people and property. They must be supported in the proper execution of their duties.
The question is whether the imposition of a sentence of imprisonment for a period of three months suspended after three days was so low as to be “unreasonable or plainly unjust”[8] or was so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[9]
In this case a term of actual imprisonment was imposed, albeit for three days. Emphasis was placed upon considerations of rehabilitation with the respondent being released under supervision for 12 months. While the sentence imposed may be considered to be lenient and at the bottom of the available range it is, in my opinion, within the range of permissible dispositions and is not manifestly inadequate as that expression is understood.
I dismiss the appeal.

--------------------------------

[1]R v Mossman (2017) 40 NTLR 144 [8]-[18].

[2] Everett v The Queen (1994) 181 CLR 295 at 300.

[3] Whitlock v The Queen [2018] NTCCA 7 at [7].

[4]R v BJW [2000] 112 A Crim R 1 at [29].

[5]Casey v Haywood (unreported, Kearney J 13.03.1995); Bellis v Burgoyne [2003] NTSC 103 at [18].

[6]See also Yardley v Betts (1979) 1 A Crim R 329 at 334.

[7]See also Robertson v Hood (1992) 111FLR 177 at 188.

[8]Markarian v The Queen (2005) 79 ALJR 1048 at 1055.

[9]Whitlock v The Queen [2018] NTCCA 7 at [7].