Pike v Rigby - [2011] NTSC 97

Pike v Rigby [2011] NTSC 97
PARTIES:PIKE, Timothy
v

RIGBY, Kerry Anne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:25 of 2011 (21023075)
DELIVERED:  28 November 2011
HEARING DATES:  24 November 2011
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  FONG LIM SM
CATCHWORDS:

APPEAL AGAINST SENTENCE – manifestly excessive – negligently causing serious harm – young adult – one punch – home detention – appeal dismissed
Criminal Code (NT) s 174E
Sentencing Act s 44, s 45, s 46, s 47, s 48

Dinsdale v The Queen (2000) 202 CLR 321; Hampton v The Queen [2008] NTCCA 5; Ross v Toohey [2006] NTSC 92, followed
REPRESENTATION:
Counsel:
Appellant:I Rowbottom
Respondent:  I Taylor
Solicitors:
Appellant:
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   B
Judgment ID Number:  Sou1111
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Pike v Rigby [2011] NTSC 97

No. 25 of 2011 (21023075)
BETWEEN:

TIMOTHY PIKE

Appellant:

AND:

KERRY ANNE RIGBY

Respondent:

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 28 November 2011)
Introduction

This is an appeal against sentence.
On 24 August 2011 following a plea of guilty, the appellant was convicted by the Court of Summary Jurisdiction of negligently causing serious harm contrary to s 174E of the Criminal Code (NT). He was sentenced to a term of imprisonment of eight months which was suspended upon him entering into a home detention order on conditions. The appellant was also ordered to make restitution.
The express conditions of the appellant’s home detention order are that he shall: (a) reside at 7 Mopoke Court Wulagi and shall not leave those premises/that place for a period of eight months except as permitted by the Director of Correctional Services or an authorised Surveillance Officer; (b) be under the supervision and obey all reasonable directions of the Director of Correctional Services or an authorised Surveillance Officer; (c) wear or have attached a monitoring device and allow the placing or installation on the premises or place of residence of the offender the related machine, equipment or device in accordance with the directions of the Director; (d) not consume or purchase alcohol and to submit to random breath analysis; (e) obey the directions of his Probation and Parole Officer regarding the wearing of a monitoring device; and (f) participate in assessment counselling and/or treatment [as directed] by his Probation and Parole Officer. Further conditions are imposed on the appellant under r 4 of the Prisons (Correctional Services) (Home Detention Orders) Regulations. Under those regulations the appellant may, with the approval of the Director, attend at a place of religious worship or an educational or rehabilitation centre.
The sole ground of appeal is that the sentence was manifestly excessive in all the circumstances of the offender and the offending.
Counsel for the appellant also submitted that there was an apparent lack of consideration of a discount for…

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 Pike v Rigby

Details

AGLC: Pike v Rigby [2011] NTSC 97
Case: [2011] NTSC 97
Decision Date: 28 November 2011

CaseChat Overview and Summary

In Pike v Rigby, the appellant was sentenced by the Court of Summary Jurisdiction for negligently causing serious harm. The case involved an altercation at a birthday party where the appellant, who had consumed alcohol, punched the victim, Taylor Di Carlo, from behind, causing serious dental and soft tissue injuries. The appellant, a first offender aged 18 at the time, was sentenced to home detention, which he appealed as manifestly excessive. The appellant argued that the sentence did not sufficiently consider his age, prior good character, and family support, and that it did not balance the objective seriousness of the offence against these mitigating factors.

The appeal court examined whether the sentence imposed was manifestly excessive, considering the objective seriousness of the offence, the appellant's age, prior good character, family support, and prospects of rehabilitation. The court assessed whether the sentencing magistrate had given appropriate weight to the purposes of general deterrence and denunciation, given the dangerous nature of the appellant's conduct and the high risk of serious harm. The court also considered the maximum penalty for the offence and the fact that the appellant was being sentenced as an adult.

The court found that the sentence was not manifestly excessive. It determined that the sentencing magistrate had appropriately balanced the objective seriousness of the offence with the appellant's mitigating factors. The sentence of home detention was deemed sufficient to address the purposes of general deterrence and rehabilitation, while also taking into account the appellant's age and prospects for rehabilitation. The court concluded that the appellant's conduct, while serious, warranted a sentence that also recognised his age and potential for rehabilitation. Therefore, the appeal was dismissed.

The court upheld the original sentence of home detention imposed on the appellant, finding it to be a proportionate response to the serious nature of the offence while also considering the appellant's personal circumstances and potential for rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

As has been observed on numerous occasions, a submission that a sentence is manifestly excessive is not one which is capable of a great deal of elaboration.The facts The facts of the offending are as follows. At around 7.30 pm on 26 March 2010 the appellant attended an 18th birthday party at the Cyprus Hall in Karama. There were 100 guests at the party. During the course of the evening the appellant consumed alcohol and became intoxicated. Shortly before midnight the party was closed down by the organisers due to glasses being smashed and damage being caused to the Hall. As a result some of the guests became upset and there was an altercation involving the party organisers and these guests. As the guests were leaving the appellant walked up behind Taylor Di Carlo, the victim, and punched him once to the right side of his face with a clenched fist. The force of the punch dislodged several of the victim’s teeth and knocked him to the ground. He did not lose consciousness and he did not suffer concussion. His soft tissue injury was limited to minor swelling and minor lacerations and bruising. The victim was taken to the Royal Darwin Hospital by ambulance and received emergency medical treatment. After attending Royal Darwin Hospital he attended at Palmerston Dental Surgery where he was examined by Dr George Lathouras. The victim presented with a displaced upper right canine, upper right lateral incisor and upper right central incisor. The victim’s displaced teeth required surgical repositioning under local anaesthetic and splinting with wire and white filling material. The right upper canine required immediate commencement of root canal treatment and following a review, at a later date, the victim’s upper right lateral incisor and upper right central incisor also required root canal treatment. The wire splint has since been removed. All of the victim’s displaced teeth are at risk of experiencing root resorption and are likely to require extraction in the future. The ideal treatment will be the placement of three titanium implants which retain porcelain crowns. If the victim’s injuries were left untreated it is more than likely that significant and longstanding injury and loss of function would have resulted. This would be in the form of physical disfigurement, pain and infection, loss of function and eventually loss of these teeth. In his victim impact statement the victim stated that since the incident he has suffered from low self esteem. After he king hit the victim the appellant left the area. He declined to speak to the police in a formal record of interview. The appellant is a first offender. At the time of the offending he had just turned 18 years of age. He completed year 10 of High School and since leaving school he has been in gainful employment. He is employed as a driver with U Cart Concrete. He comes from a good and supportive family and he is a good Australian Rules football player. By way of explanation of the offending the Court of Summary Jurisdiction was told that the appellant had tried to break up the altercation that occurred at the Cyprus Hall and while he was doing so he received a blow to his head. As a result he became extremely frustrated. Somebody told him that the victim had punched him and he then struck the victim. However, the appellant struck the wrong person as the victim had not struck the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is apparent that the sentencing magistrate gave weight to the dangerous nature of the appellant’s conduct, the appellant’s young age, the appellant’s prospects of rehabilitation, his family support, the appellant’s prior good character, the maximum penalty, the fact that the appellant was being sentenced as an adult, and the impact that a term of actual imprisonment would have on the appellant. The most significant weight was given to the sentencing purposes of general deterrence and rehabilitation.Consideration In my opinion the sentence imposed on the appellant was not manifestly excessive. The sentencing magistrate did not act on a wrong principle or misunderstand or wrongly assess some salient feature of the evidence. The maximum penalty for the offence of negligently cause serious harm is 10 years imprisonment. The conduct of the appellant was objectively serious. He deliberately king hit the victim from behind with considerable force and the victim who was unguarded was knocked to the ground and sustained serious injuries. The victim did nothing to provoke the attack upon him. The appellant’s conduct involved a great falling short of the standard of care that a reasonable person would exercise in the circumstances of this case and a very high risk of serious harm. Such offences are prevalent and the courts must do what they can to protect the community against such conduct. Having had regard to the objective seriousness of the offence a starting point of 10 to 11 months imprisonment was within the range for the instant offence. Further, the sentence of home detention imposed on the appellant by the Court of Summary Jurisdiction gives due weight to his subjective factors including his age, his prior good character and his prospects of rehabilitation. The appellant has been able to continue his employment and he has commenced or is about to commence an appropriate rehabilitation course. While it is arguable that another sentencing magistrate may have accorded the appellant greater leniency or mercy because of his age and his prior good character that does not mean that the sentence imposed on the appellant was manifestly excessive. Given the prevalence of such offences and their objective seriousness it is appropriate that significant weight be given to the sentencing purposes of general deterrence and to denunciation. The appellant’s conduct was highly dangerous and the objective seriousness of his conduct overrode the mitigating factors of his age and prior good character. The appeal is dismissed.