Mungaribi v Hales - [2000] NTSC 48

Mungaribi v Hales[2000] NTSC 48
PARTIES:MUNGARIBI, Howard
v

HALES, Peter

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA12 of 2000
DELIVERED:  30 June 2000
HEARING DATES:  31 May 2000
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
CRIMINAL LAW

Appeal against sentence – whether offence was escalated to a more serious level – whether previous criminal history wrongly taken into account.
Veen (No 2) v The Queen (1988) 164 CLR 465 at 477, 473
The Queen v Shrestha (1991) 173 CLR 48 at 61.
REPRESENTATION:
Counsel:
Appellant:D Evenden
Respondent:  J Blockland
Solicitors:
Appellant:NAALAS
Respondent:  DPP
Judgment category classification:        B
Judgment ID Number:  mar20012
Number of pages:  9

Mar20012
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mungaribi v Hales [2000] NTSC 48
No. JA 12 of 2000

BETWEEN:
HOWARD MUNGARIBI

Appellant
AND:
PETER HALES

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 30 June 2000)

Appeal against sentence. The appellant was convicted on 24 February 2000 in the Court of Summary Jurisdiction, at Darwin, on his pleas of guilty to a number of charges. Two of them were for assaults committed on 6 October 1999, for which he was sentenced to imprisonment for 12 months. The total sentences were somewhat in excess of that, but the learned Magistrate declined to fix the period prior to which the appellant would not be eligible for parole.

The grounds of the appeal are:
(a)His Worship erred in escalating the offences to a serious level for offences of that type.
(b)Erred in attaching undue weight to the applicant’s previous criminal history thereby sentencing him on his record rather than on the offence.
The charges were, firstly, that on the day in question he unlawfully assaulted Joanne King with circumstances of aggravation, namely, that she was a female and he a male, and that she was threatened with an offensive weapon, namely a metal paint roller extension; secondly, and on the same occasion, he unlawfully assaulted Mario Verassi with circumstances of aggravation that he was threatened with an offensive weapon, namely a metal paint roller extension.
No better description of the offensive weapon appears anywhere.
The admitted facts were that at about 9.45pm on the evening of 6 October the appellant went to residential premises in Darwin. He entered the yard, where he disturbed a dog, whose barking alerted the owner and his companion. The two people came downstairs. The defendant was in the rear of the yard and had armed himself with the offensive weapon. The female victim found him, and as he approached her, he menaced her with the weapon and struck her on the upper left arm. She called out for assistance and retaliated with a metal roller that she was carrying. The defendant knocked that from her grasp. She retreated, but the appellant pursued her, striking her repeatedly with the weapon. Mr Verassi then came to Ms King’s assistance, and he was struck by the defendant with the weapon on the back and his left knee.
The appellant then ran from the premises, the police were called, he was located nearby and was seen to be intoxicated. He was aggressive at the time of the apprehension and for a while thereafter. He declined to take part in an interview with police.
The victim had received minor abrasions and bruising, but I note that it was not suggested they amounted to bodily harm.
The maximum penalty in each case is five years imprisonment.
No explanation was given as to why the appellant behaved as he did by counsel appearing for him at the hearing, other than that he had a “grog problem”. He normally resided outside Darwin, but it was said that “when he comes into town he might drink far too much”, that was put by his counsel upon his instructions, and further:
“He instructs me that he was drunk when he was at Smith Street, drunk when he had this altercation with the two home dwellers, and drunk when he was at the police station. Completely sozzled. He instructs me that he is sorry that he attacked this young lady and the man.”
His Worship was also informed that the appellant had tried to address his alcohol problems by attending a rehabilitation course, but that little had been done to correct them.
The other matters put to his Worship on behalf of the appellant, an aboriginal, were that he was 40 years of age from Goulburn Island. His wife passed away a few months prior to the hearing, leaving two children aged nine and four, the younger of whom has had heart problems all his life. They lived with the appellant and his sister at Litchfield. He had employment as a pet meat shooter.
The matter that caused his Worship the greatest concern in the sentencing process was the appellant’s prior convictions. They commenced as early as 1979 with a charge for unlawfully being on premises, followed in 1981 with an assault, for an attempted rape and other offences. In 1982, again, unlawfully on premises and two counts of burglary; 1987, unlawful entry to a dwelling at night with intent to commit a simple offence; 1990, a number of unlawful entries and stealing; 1994, assault upon a female; 1995 a number of counts of unlawful entry and stealing, and another assault upon a female. In 1996 there were two convictions for assault. In 1998, a conviction for assault upon a female and another in 1999 for an offence committed prior to the present matters, but in respect of which he was convicted after he committed the current offences.
I have left out of this sorry litany a significant number of other offences and have simply recorded those that bear some passing similarity, at least, with what the appellant had done on this particular night. Although he was not charged with it, there is no suggestion that he was lawfully on the premises when he was disturbed, but I note that on this occasion he had not apparently stolen anything from the premises. The most disturbing feature of the record is the frequency of his convictions for assault, most of them being upon females.
When convicted of the assault in 1995, he was sentenced to six months imprisonment to be released after three months upon a bond to be of good behaviour for 18 months. He breached that bond by the offences which led to his being convicted for the two assaults in February 1996, when he was again sentenced to terms of imprisonment and ordered to serve the unserved portion of the earlier suspended sentence. In 1998 he was sentenced to 12 months imprisonment, a non-parole period of nine months was set, but he elected not to be discharged upon parole. Furthermore, at the time that he committed these assaults he was on bail in relation to the charge for which he was dealt with in November.
His Worship obtained details of the offence for which the appellant was dealt with in November. On that occasion he was drunk, had been taken to a sobering up shelter, went into a female bedroom, climbed on the bed on which the victim was sleeping, got on top of her and held her down while touching her left breast. During the course of the assault another person came into the room and the appellant stood up and ran away. For that he was sentenced to six months imprisonment which was not wholly or partially suspended.
His Worship took time to consider the sentence to be imposed upon the appellant. It is clear from his opening remarks that he had a degree of sympathy for him and his condition, saying that despite the warnings he had been given by the court in the past, he could not shed himself of the capacity to commit violent and anti-social behaviour when drunk, and said he dealt with him on that basis. It is this passage in this Worship’s reasons and others to similar effect that form the background to the grounds of appeal. It is submitted that those views were unwarranted. I do not agree. Given the facts of the case, the accused’s prior criminal history and what was put on his behalf by his counsel upon the hearing, no exception could be taken to those words or others like them. The appellant has not demonstrated that he has lost the capacity to commit violent and anti social behaviour when drunk. His Worship observed that the appellant seemed to be a nasty drunk and speculated as to whether he had some type of character flaw which is exhibited when he had too much to drink. Again, I think those comments were justified.
Dealing with the circumstances of the offending, his Worship noted that the appellant was on bail at the time and the agreed facts as to the assaults, including the observation that the appellant did not retreat or run away when disturbed, but took up the weapon and used it. He chased the female, when Mr Verassi intervened, he assaulted him. His Worship went on to observe that the courts have a responsibility to protect people in their homes from intruders who assault the occupants rather than flee when detected.
More than once his Worship observed that it was a sad case, no doubt referring to the unfortunate condition of the appellant, also having regard to his personal circumstances. Account was taken of the plea of guilty.
It is obvious that it was the appellant’s prior record which impressed itself particularly on the minds of the learned Magistrate and rightly so.
I am not satisfied that his Worship erred by increasing the penalty because of the prior convictions. He is not shown to have not followed the correct approach explained by the High Court in Veen (No 2) v The Queen (1988) 164 CLR 465 at 477, “The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to defer the offender and other offenders from committing further offences of a like kind”. The prior criminal history also sheds light on whether or not the offender is likely to respond to conditional release either on parole or under supervision consequent upon partial suspension of a sentence.
It was not just the nature of the assaults on this occasion which required them to be treated as serious breaches of the law. The prior convictions for similar offences and the fact that they were committed whilst he was on bail increased the gravity of the offending. The clear distinction between an extension of the period of sentence merely by way of preventive detention, which is impermissible, and an exercise of sentencing discretion having regard to the protection of society amongst other factors, is permissible (per Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen No 2 (1987) 164 CLR 465 at 473).
As to the refusal to make an order in relation to eligibility for parole, it will be noted that firstly it is an exercise of discretion and it is not possible on appeal to correct an apparently regular order (or failure to make an order) unless it is shown that some irrelevant matter has been taken into account, or some relevant matter has been left out of account in making or refusing the order, or the discretion has been exercised for a purpose different from that for which it was conferred, or that some other error or principle or some mistake of fact has affected the sentence imposed. The court must consider, amongst other things, whether the purposes of parole can be fulfilled if an order is made authorising the release of the prisoner on parole, and if those purposes are unlikely to be fulfilled, the case is not one in which an order for release on parole is appropriate (per Brennan and McHugh JJ The Queen v Shrestha (1991) 173 CLR 48 at p61).
In summary, I am not of the view that the learned stipendiary Magistrate erred in “escalating the offences”. In all the circumstances they were serious breaches of the law. Nor does it appear to me that his Worship erred in attaching undue weight to the appellant’s previous criminal history. In my view he was not sentenced on his record, but his record was a relevant consideration bearing heavily upon sentence.
The appeal is dismissed.
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