Peters v Perkins - [2015] NTSC 77

Peters v Perkins [2015] NTSC 77
PARTIES:PETERS, Blake

v
PERKINS, Patrick

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 41 of 2015 (21522395)
DELIVERED:  18 NOVEMBER 2015
HEARING DATE:  18 NOVEMBER 2015
JUDGMENT OF:  RILEY CJ
APPEAL FROM:  FONG LIM SM
REPRESENTATION:
Counsel:
Appellant:C Voumard
Respondent:  T Wallace-Pannell
Solicitors:
Appellant:Maley and Burrows Barristers and Solicitors
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ril1512
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Peters v Perkins [2015] NTSC 77

No. JA 41 of 2015 (21522395)
BETWEEN:

BLAKE PETERS
Appellant

AND:

PATRICK PERKINS
Respondent

CORAM: RILEY CJ
REASONS FOR JUDGMENT
(Delivered 18 November 2015)
Introduction

On 5 August 2015 the appellant was sentenced to a total period of seven months imprisonment for two offences of aggravated assault, both of which occurred in the early hours of 19 May 2015. The sentencing magistrate directed that the sentence be suspended after the appellant had served a period of imprisonment of one month.
The appellant complains that:
(a)the sentencing magistrate erred in ordering the sentences to be served entirely cumulatively;
(b)the magistrate erred in declining to suspend the sentence in full; and
(c)the overall sentence was manifestly excessive.
The offending
At the time of the offending the appellant was aged 22 years. At about 1:50 am on 19 May 2015 he and two co-offenders were in Mitchell Street in Darwin standing at the entrance to Monsoons Nightclub. They were speaking with a patron of Monsoons, the first victim, in a confrontational manner. The appellant took offence at a comment made by the victim and slapped him across the left side of his head. He then pushed the victim away. A security officer intervened and the appellant and a co-offender each took up a fighting stance calling upon the victim to fight. One of the co-offenders then punched the victim to the head causing him to stumble. The second co-offender also took up a fighting stance. The victim put up his hands to indicate he was not defending himself. Notwithstanding the clear submission of the victim, the appellant and a co-offender again hit him to the head with clenched fists. The appellant’s two co-offenders then hit the victim a further time to the head causing him to fall to the road. Whilst he was on his back indicating that he did not want to fight one of the co-offenders punched him twice to the face. As he was getting to his feet he was again punched by a co-offender causing him to fall into a fence. The security officer attempted to separate the co-offenders from the victim but the victim was again punched twice by the co-offenders. An off duty security officer came to assist. After another unsuccessful attempt to gain entry to Monsoons, the three co-offenders left the area.
The victim suffered bruising and minor injuries but did not require medical treatment.
The second offence occurred about an hour later and was unrelated to the first incident. The three co-offenders were at a kebab bar in Mitchell Street when they witnessed their second victim speaking in what was described as “an obnoxious manner”.[1] The appellant confronted the second victim and, as the victim leaned inwards to hear what the appellant was saying, the appellant struck him with his right fist to the face rendering the victim unconscious. The victim fell to the floor and was then placed in the recovery position. The appellant waited outside while his food was prepared and then left while his victim was still laying unconscious on the floor. The victim was unconscious for about five minutes. He was transported to Royal Darwin Hospital where he was monitored.
The three co-offenders were arrested later that morning. The appellant entered into an electronic record of interview in which he made full admissions and in which he said, having seen the CCTV footage, it “looks bad”.[2]
The Court was told that the appellant had been raised primarily by his father. He had finished year 12 at school and commenced, but did not complete, a carpentry apprenticeship. He had been doing some labouring work but had suffered an injury to his hand which kept him off work for a period of some months. After the offending he obtained employment with a pearling company in Broome, Western Australia.[3]
The appellant had previously been dealt with for an aggravated assault in circumstances where he was fined but no conviction was recorded. This offence also occurred whilst he was under the influence of alcohol.
The Sentence
In the Court of Summary Jurisdiction, the appellant claimed he did not have a problem with alcohol. In determining sentence the magistrate observed that, contrary to this claim, the appellant had a problem with alcohol and with becoming aggressive when affected by alcohol. The appellant lacked insight into his problem. Her Honour remarked upon the prevalence of offending of this kind and upon the dangerous nature of such violence. Her Honour emphasised the need for both general and personal deterrence. The appellant was convicted on each count and sentenced to four months imprisonment for the first count and three months for the second count. Those sentences were to be served cumulatively, giving a total period of imprisonment of seven months. The sentence was directed to be suspended after the appellant had served one month on condition that he be placed under supervision for a period of 12 months from the date of his release.
Cumulative sentences
The appellant complained that the magistrate ordered that the two sentences be served cumulatively and did not provide reasons for so doing. It was submitted that the offences occurred on the one evening and in the company of the same people and, in the circumstances, her Honour erred in not ordering at least partial concurrency.
The sentence was delivered in the course of the magistrate’s usual list. Ex tempore reasons were provided. The mere fact that her Honour did not provide reasons for making the sentences cumulative does not demonstrate that her Honour fell into error. As has been observed on many occasions, magistrates work under pressures which mean that in many instances they are unable to provide the detailed reasons for decision which may be expected in a reserved judgment.[4] An appellate court is entitled to assume that the magistrate has considered all matters which are necessarily implicit in the conclusions reached.[5] There is nothing in the material in this matter which would lead me to conclude that her Honour, an experienced magistrate, did not consider concurrency.[6]
The appellant submitted that by operation of s 50 of the Sentencing Act 1995 (NT) the sentencing magistrate should have adopted the starting point that the sentences ought to be served concurrently.
Guidance as to the correct approach to this issue was provided by the Court of Criminal Appeal in Carroll v The Queen where it was said:[7]
The following principles are well established. First, s 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court “otherwise orders”. There is no fetter on the discretion exercised by the Court and the prima facie rule can be displaced by a positive decision. Secondly, it is both impractical and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or consecutively. The assessment is always a matter of fact and degree. Reasonable minds might differ as to the need for cumulation. Often there will be no clearly correct answer. Thirdly, an offender should not be sentenced simply and indiscriminately for each crime he is convicted of but for what can be characterised as his criminal conduct. The sentences for the individual offences and the total sentence imposed must be proportionate to the criminality in each case. (References omitted).
In this case there was a basis upon which a level of concurrency may have been provided. The offending occurred on the same night and in the same general area of the city. However, the acts of violence were quite separate. They occurred at different times, in different locations and involved different victims. The first offence was a cowardly attack in company upon a victim who had been engaged in conversation with the appellant. The second offence was a spur of the moment unprovoked attack by the appellant alone. There was a basis for cumulation.
As the Court of Criminal Appeal observed in Carroll v The Queen, reasonable minds might differ as to the need for cumulation and there is no clearly correct answer. [8] In my opinion the order made by her Honour for cumulation was an available sentencing option and I am unable to say that the sentencing magistrate erred in this regard.
Suspending the sentence in full
In the Court of Summary Jurisdiction it was acknowledged on behalf of the appellant that the offending warranted a sentence of imprisonment but her Honour was urged to consider a full suspension. In this court the appellant again acknowledged that a sentence of imprisonment was “not inappropriate”[9] in the circumstances. However, it was argued that in imposing a sentence of actual imprisonment, her Honour failed to fully consider the age, antecedents and prospects for rehabilitation of the appellant and the essential part his recently obtained employment in Broome had to play in his rehabilitation. I do not accept that her Honour did fail to consider those matters. They had been placed before her Honour and discussed shortly prior to the sentence being imposed. They were fresh in the minds of all concerned, including her Honour.
The magistrate gave emphasis to the circumstances of the offending which included a drunken violent assault on two separate people. Her Honour addressed the dangerousness of the conduct of the appellant and his callous disregard for the welfare of the second victim who was left unconscious on the ground while the appellant obtained his takeaway food and then walked away. The need for general deterrence and personal deterrence was addressed. Notwithstanding the seriousness with which the magistrate regarded the offending her Honour gave the appellant:[10]
… the opportunity of a partially suspended sentence because in my view you are a person who should be given an opportunity after having served some time in prison to show that you are willing to change your way.
I see no error in the approach of the magistrate.
Manifest Excess
Finally the appellant submitted that the sentence was manifestly excessive. In my opinion, in all the circumstances, the individual sentences were appropriate as was the total sentence. No error has been demonstrated and, in my view, the sentence was not manifestly excessive.
The appeal is dismissed.

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[1] CSJ Transcript dated 5 August 2015, p 3.

[2] CSJ Transcript dated 5 August 2015, p 4.

[3] CSJ Transcript dated 5 August 2015, p 6.

[4] Bird v Peach [2006] 17 NTLR 230; [2006] NTCA 7 at par [9].

[5] Nguyen v Ciolka [2015] NTSC 67 at par [18].

[6] Millar v Brown [2012] NTSC 23 at par [19].

[7] Carroll v The Queen (2011) 29 NTLR 106 at par [42].

[8] Carroll v The Queen (2011) 29 NTLR 106 at par [42].

[9] CSJ Transcript dated 5 August 2015, p 8.

[10] CSJ Transcript dated 5 August 2015, p 10.