Patrick v Baum - [2003] NTSC 59

Patrick v Baum [2003] NTSC 59
PARTIES:PATRICK, Martin Adam Kleofas
v

BAUM, John Stewart

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA3 of 2003
DELIVERED:  30 May 2003
HEARING DATES:  7 May 2003
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justices appeal – appeal against sentence – manifestly excessive – insufficient weight to appellant’s youth and lack of prior convictions – undue weight on principle of general deterrence.
Criminal Code 1999 (NT), s 188(2)(b)&(a)
Wilson v Hill (1995) 1 NTJ 52 at 68; Yardley v Betts (1979) 22 SAR 108 at 110; Inness Wurramara (1999) 105 A Crim R 512 at 520; Kelly v R (2000) 113 A Crim R 263, referred.
Hill v Pryce (1997) 2 NTJ 709; Cook v Chute (1997) NTJ 1012 at 1022, applied.
REPRESENTATION:
Counsel:
Appellant:D Bamber
Respondent:  C Roberts
Solicitors:
Appellant:CAALAS
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0324
Number of pages:  10

mar0324
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Patrick v Baum [2003] NTSC 59
No. JA3 of 203

BETWEEN:
MARTIN ADAM KLEOFAS PATRICK

Appellant
AND:
JOHN STEWART BAUM

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 30 May 2003)

Appeal against sentence. On 16 December 2002 the appellant was convicted and sentenced to a term of imprisonment of nine months to be suspended after three months for that on 25 December 2001 at Hermannsburg he unlawfully assaulted Nancy Ebatarinja, accompanied by circumstances of aggravation in that she was a female and he a male and that she suffered bodily harm (Criminal Code 1999 (NT) s 188(2)(b) and (a)).

The learned Magistrate was sitting at Hermannsburg. The admitted facts were that the appellant and victim were in a boyfriend/girlfriend relationship since 1988. At around 5.30pm on Christmas Day he asked her why she was going out with another boy. She replied that she was not and walked away. He followed her to a house where she was lying down and with his right foot kicked her once on the right side of her jaw. She cried and the next morning attended at the health clinic where it was ascertained that her jaw was broken. The extent of the injury to the jaw was not disclosed. On 27 December the appellant was arrested, participated in an interview with police and made full admissions. Asked why he had committed the offence, he said that he was upset and admitted that he had been drinking during the afternoon prior to committing the offence and said he was fairly drunk.
Although the appellant had prior convictions, mainly for traffic offences, he had none for assault.
Counsel for the appellant before his Worship conceded that the assault had serious consequences, but urged upon his Worship that a suspended term of imprisonment was the appropriate sentence. The victim was present and his Worship was informed that she and the appellant were reconciled and were residing together. As to the offence, the appellant through his counsel admitted that he was fairly intoxicated, that an argument started with the victim which was all his fault and that the victim was sitting down and did nothing to provoke his action. After kicking her he left not realising that she had suffered any injury. He later found out that she had a broken jaw and had been taken from Hermannsburg for treatment and he was then very upset. He had apologised to the victim.
As to the appellant’s personal circumstances, he was 21 at the time, born in Alice Springs and grew up at Hermannsburg and Lajamanu. He attended school in Alice Springs for a number of years. His educational attainment was not disclosed, but he appears not to have had any significant employment. It was put that the victim had not suffered any lasting effects as a result of the assault. In a further plea for mitigation of the penalty it was pointed out to his Worship that the appellant had cooperated with the police, entered a plea of guilty and demonstrated genuine remorse. The charge did not contain an element of intent in relation to the causing of bodily harm.
His Worship introduced his sentencing remarks by repeating the bare facts of the offence and saying that the appellant must go to gaol, but said that he had taken into account the guilty plea, that the appellant was a young man and that he had apologised. His Worship then embarked upon a general castigation of people who bring liquor onto the Hermannsburg area, where possession of alcohol is prohibited, thus leading to people getting drunk and committing this type of offence. His Worship expressed himself to be angry saying that when people bring liquor into Hermannsburg it is quite foreseeable that assaults will follow. The appellant had not been charged with any such conduct, but I do not think his Worship was impermissibly attributing fault to the appellant on that account. He was directing his remarks to a situation with which he had obviously become quite conversant as a Magistrate regularly sitting in that community.
Concluding his remarks before imposing the sentence, his Worship repeated that the offence was one which was punishable only by imprisonment because the message must go to the community that if a person acts in such a way by kicking his wife in the jaw and breaking it, then the person will go to gaol “…. That’s the way it is”.
The grounds of appeal are that the learned Magistrate:
1.gave insufficient weight to the appellant’s lack of prior convictions;
2.gave insufficient weight to the appellant’s youth;
3.placed undue weight on the principle of general deterrence;
4.erred in failing to wholly suspend the sentence, and
5.imposed a sentence that was manifestly excessive.
In Wilson v Hill (1995) 1 NTJ 52 commencing at p 68 I observed that the records of this Court showed that it was a rare case in which a person convicted of an aggravated assault is not sentenced to a term of imprisonment, that being the established pattern for many years. The commonest offences were identified as being those involving bodily harm (usually inflicted by a weapon of some description) or where the offender is a male and the person assaulted female, or involving indecency. But, naturally, the period of the sentence varied widely depending upon all the circumstances which the law obliges a sentencing tribunal to take into account, as does the period of time, if any, in which the offender is to be kept to confinement. Attention was drawn to the well known passages in Yardley v Betts (1979) 22 SAR 108 per King CJ said at p 110 that all cases of assault required individual assessment, but in this jurisdiction, at least, there is a clear view that personal and general deterrence are matters to be given considerable weight.
The Court of Criminal Appeal in Inness Wurramara (1999) 105 A Crim R 512 reinforced, in no uncertain terms, expressions of concern as to the level of violence occurring in some Aboriginal communities (p 520):
“The type of violent offending to which the respondent pleaded guilty in this matter is all too familiar to those involved in the administration of justice in the Northern Territory. Often the violence is, as in this case, extreme in its nature involving the use of offensive weapons. It frequently results in death or, as here, life-threatening injuries. The assaults are often by a male upon a female, but on many occasions they are directed at children and other persons who are, for one reason or another, weaker members of the community. Objectively viewed the incidents are often extremely disturbing. For the victims they must be horrifying. The courts have been concerned to send what has been described as “the correct message” to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so.”
Numerous cases were cited in support of those general observations.
The objective circumstances of the offence in that matter were far more serious than here and each case calls for consideration of that factor, and proper recognition of claims to mitigation of sentence must be accorded due weight.
The maximum sentence which may be imposed for an offence of this sort pursuant to s 188(2) of the Criminal Code is five years imprisonment. A kick to a person’s head whilst on the ground is undoubtedly, as was conceded before his Worship, a serious offence of this type. The bodily harm, although apparently not of long lasting effect, was nevertheless a significant injury. There was a single application of force. It was not as grave an example of this type of offence as is often seen.
I note that the appellant was about 21 years of age when this event occurred and that he had no prior convictions for acts of violence. The circumstances giving rise to the assault have been explained, but provide no excuse, being a further example of the frequent circumstances giving rise to assaults by men upon women in Aboriginal communities (and elsewhere). Notwithstanding the mitigatory effect to be allowed in respect of age and clean record with their concomitant indications of prospects for rehabilitation, I consider that in all the circumstances a sentence to a term of imprisonment was justified and would be in keeping with the established pattern. His Worship was correct in imposing such a sentence aimed at bringing home to the appellant the seriousness of his conduct and hopefully thereby to assist him to reform. Furthermore, his Worship was very concerned at the prevalence of that type of offending at Hermannsburg and of the need for a sentence to be imposed which might operate as a deterrent to others minded to behave in a similar fashion. I mean not just the assault itself, but the conditions giving rise to it, namely, voluntary overindulgence in alcohol.
The appellant was also entitled to favourable consideration in relation to his cooperation with authorities, plea of guilty and remorse. His Worship would undoubtedly have borne in mind the views of the Court of Criminal Appeal in Kelly v R (2000) 113 A Crim R 263 that a reduction in penalty is appropriate for those factors and that it is desirable that the nature of the benefit be specified, for example, specific reduction in the term of penalty which might otherwise be imposed or, in a case where a sentence to imprisonment is in mind, as a factor in enabling it to be wholly or partly suspended. I am prepared to infer that his Worship had in mind a head sentence of 12 months imprisonment and allowed reduction of one quarter to arrive at the sentence of nine months imprisonment imposed.
Enquiries were made of counsel during the course of the hearing of this appeal and in other matters heard at about the same time as to the availability of statistics which might assist the Court of Summary Jurisdiction and this Court in assessing a range of sentences imposed in a variety of circumstances. Given the volume of cases involving assaults by men upon women in Aboriginal communities, it would seem to me that there would be a significant number of cases from which information of assistance to the courts in arriving at a consistent pattern of sentencing could be derived. In saying that, I bear steadily in mind that it is rare that any two cases are alike and due allowance must be made for the varying circumstances. Nevertheless, guidance from those sources may prove valuable. They may prove especially valuable if it appears that the sentences imposed are not achieving the desired general deterrent effect and that it is necessary to seriously consider increasing the level of those sentences after the giving of due warning. No such statistics were available.
In Hill v Pryce (1997) 2 NTJ 709 I said that whilst not resiling from what had been said about the need for general deterrence in sentencing for offending of this type, it must be permitted to override, in appropriate cases, the effect of mitigatory circumstances. That view appears to have been approved by Kearney J in Cook v Chute (1997) 2 NTJ 1012 at p 1022.
Turning to the questions of whether or not the sentence should have been wholly suspended, a matter particularly urged in this Court by counsel for the appellant, it will be remembered that such a sentence is regarded as a significant punishment carrying with it the record of a conviction and a consequence that the offender may be called upon to serve every day of the sentence in prison should he or she commit an offence punishable by imprisonment during the operational period. In considering whether to suspend a sentence to imprisonment in full or in part it is unlikely that any single factor in a given case will be determinative of the exercise of a discretion. What is called for is a careful evaluation of all of the circumstances of the case which, given the personal circumstances of this appellant, requires significant weight to be given to his age and lack of relevant convictions.
The ultimate protection of the community in which he lives, including his wife as a member of that community, required that his rehabilitation be the primary objective. That would be more likely to be achieved by maintaining the reconciled relationship between himself and his wife rather than breaking it and imprisoning him, with other possible adverse consequences.
I appreciate that the significance or weight to be given to the various matters to be taken into account in the sentencing process is a difficult exercise with the application of sentencing principles often pointing in different directions. I also bear in mind that his Worship has experience with conditions in the Hermannsburg community. Nevertheless, I consider the appellant has made out a case that his Worship erred in wrongly assessing the mitigatory effect of the various circumstances to which I have referred in coming to the view that a part of the sentence must be served. I am not persuaded that his Worship erred in the fixing of the head sentence at nine months imprisonment. There is nothing which would indicate that he was outside of the range and although it might be regarded as being a stern punishment, I consider that it is nevertheless within the bounds of a sound discretionary judgment.
The sentence to imprisonment for a period of nine months is confirmed, but it is wholly suspended. I note that the offence occurred on 25 December 2001 and it is not suggested that the appellant has committed any offence of any kind since then. Bearing that in mind I fix an operational period of one year from today. It was suggested this is an appropriate case in which the appellant should be made the subject of supervision; circumstances are such as to not make it practicable to order the required report before consideration could be given to the possibility of further aiding the appellant’s rehabilitation by that means.
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