Maloney v Hales

[2003] NTSC 82

Maloney v Hales [2003] NTSC 82

PARTIES:MALCOLM JAGAMARRA MALONEY

v

PETER WILLIAM HALES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:JA 53/03  (20218431)

DELIVERED:  23 July 2003

HEARING DATES:  13 June 2003

JUDGMENT OF:  THOMAS J

CATCHWORDS:

CRIMINAL LAW – appeal against sentence- whether magistrate erred in the conduct of proceedings when dealing with an unrepresented offender – whether magistrate erred in failing to give weight to factors in mitigation – whether the sentence imposed was manifestly excessive.

Criminal Code 1983 (NT) s 188 (2)

Brown v Smith (1974) 4 ALR 114, applied

Cooling v Steel (1971) 2 SASR 249; Bates v Hayman (1988) 90 FLR 55; Ross v Peach [2000] NTSC 19, considered.

REPRESENTATION:

Counsel:

Appellant:S Lacy

Respondent:  T Austin

Solicitors:

Appellant:North Australian Aboriginal Legal Aid Service

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:        C

Judgment ID Number:  tho200326

Number of pages:  18

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

Maloney v Hales [2003] NTSC 82
No. JA 53/03  (20218431)

BETWEEN:

MALCOLM JAGAMARRA MALONEY

Appellant

AND:

PETER WILLIAM HALES

Respondent

CORAM:    THOMAS J

REASONS FOR JUDGMENT

(Delivered 23 July 2003)

1. This is an appeal against the sentence of a stipendiary magistrate imposed in the Court of Summary Jurisdiction at Darwin on 13 March 2003.

2. The appellant entered a plea of guilty to the following charge that: On 7 December 2002 at Darwin in the Northern Territory of Australia unlawfully assaulted Sharon Smith.  and that the said unlawful assault involved the following circumstances of aggravation namely:

   (i)that the said Sharon Smith suffered bodily harm.

   (ii)that the said Sharon Smith was a female and the said Malcolm Maloney was a male.

   Contrary to s 188(2) of the Criminal Code.

3. The learned stipendiary magistrate convicted the appellant, he sentenced him to imprisonment for a period of 12 months commencing 13 March 2003.  The sentence was to be suspended on 13 April 2003, that is after serving one month of actual imprisonment.

4. The learned stipendiary magistrate specified pursuant to s 40(6) of the Sentencing Act a period of 25 months, that is two years and one month from 13 March 2003 during which the offender is not to commit another offence punishable by imprisonment if the offender is to avoid being dealt with under s 43 of the Sentencing Act.

5. Count 2 on the Information which was an allegation of unlawfully cause grievous harm to Sharon Smith was withdrawn and the defendant discharged.

6. The grounds of appeal are as follows:

   “1.The learned Magistrate erred in failing to accord the appellant the opportunity for legal representation, given the particular circumstances of the case and further erred in the conduct of proceedings in dealing with an unrepresented defendant.

   2.The learned Magistrate erred in failing to give any or sufficient weight to the mitigating features of:

   i)previous good character;

   ii)rehabilitation; and

   iii)remorse.

   3.The learned Magistrate erred in placing too much…