[Back to Main List] [Back to NTSC 2005 List]

Parmbuk v McMaster [2005] NTSC 72

PARTIES: PARMBUK, Patrick

McMASTER, Dean Stuart

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 18 of 2005 (20425867)

DELIVERED: 5 December 2005

HEARING DATE: 15 November 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

APPEAL FROM MAGISTRATE – APPEAL AGAINST CONVICTION - APPEAL AGAINST SENTENCE

Melee – goes armed in public – what amounts to goes armed – fight in a public place – manifestly excessive – totality principle

Criminal Code s 69; Justices Act s 165; Summary Offences Act s 47AA

Attorney-General v Tichy (1982) 30 SASR 84; Brown v Lynch (1982) 15 NTR 9; R v Burnett (1983) 19 Qld Lawyer Reps 23; Dearnley v The King [1947] St R Qd 51; Dixon v Seears (1982) 16 NTR 20; Ellis v The Queen [2005] NTCCA 1; R v Hildebrandt [1964] Qd R 43; R v Kolb & Adams (unreported, Vic CCA, 14 December 1979); Miles v The Queen [2001] NTCA 9; Mill v The Queen (1988) 166 CLR 59; Miller v Hrvojevic [1972] VR 305; R v Standley (1996) 90 A Crim R 67, applied

J Aberdeen, “What is ‘Going Armed’?”, (1998) 19 The Queensland Lawyer 57

REPRESENTATION:

Counsel:
Appellant: P Dwyer
Respondent: M Johnson

Solicitors:
Appellant: North Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Sou0515
Number of pages: 11

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

Parmbuk v McMaster [2005] NTSC 72
No JA 18 of 2005 (20425867)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against the sentence of the Court of Summary Jurisdiction

BETWEEN:

PATRICK PARMBUK
Appellant

AND:

DEAN STUART McMASTER
Respondent

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 5 December 2005)

Introduction

[1] This is an appeal pursuant to s 163 of the Justices Act. The appellant appeals against his conviction for the crime that contrary to s 69 of the Criminal Code on 11 November 2004 at Wadeye he did go armed in public with a rock, without lawful occasion and in such a manner as to cause fear to a person of reasonable firmness and against the sentences that were imposed on him by the Court of Summary Jurisdiction on 9 March 2005.

[2] On 9 March 2005 the appellant was convicted of two offences in the Court of Summary Jurisdiction. First, the appellant was convicted of an offence that contrary to s 69 of the Criminal Code on 11 November 2004 at Wadeye he did go armed in public with a rock, without lawful occasion and in such a manner as to cause fear to a person of reasonable firmness and courage. Secondly, the appellant was convicted of an offence that contrary to s 47AA(a) of the Summary Offences Act on 11 November 2004 at Wadeye he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parmbuk v McMaster

Details

AGLC: Parmbuk v McMaster [2005] NTSC 072
Case: [2005] NTSC 72
Decision Date: 05 December 2005

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the case of Parmbuk v McMaster involved an appeal by Patrick Parmbuk against his conviction and sentence for going armed in public with a rock, without lawful occasion and in a manner that caused fear to a person of reasonable firmness and courage, as well as for participating in a fight in a public place. The court addressed the legal issues surrounding the elements required to constitute the offence of going armed in public, the application of the totality principle in sentencing, and whether the magistrate adequately considered the appellant's personal circumstances.

The court found that the appellant was wrongly convicted of the crime of going armed in public. The court held that to be armed with a weapon means to have it available for immediate use, not just being in possession. The court also clarified that 'going armed' refers to the open exhibition of a weapon, typically involving a degree of continuity in the manner of proceeding in public. Given that the appellant threw the rock instantaneously during a confrontation, it did not meet the criteria for 'going armed'. The court further observed that the magistrate failed to consider the totality principle when imposing both a suspended sentence of imprisonment and a community work order on the appellant, leading to a manifestly excessive penalty without parity with sentences imposed on co-offenders. Despite this, the court upheld the sentence for the charge of participating in a fight in a public place.

The court ultimately allowed the appeal against the conviction for going armed in public, set aside the associated sentence, and acquitted the appellant of that charge. The appellant remains required to complete the community work order related to the other charge. The court will later address the issue of costs.

Orders