RA v Nalder

[2009] NTSC 7

RA v Nalder [2009] NTSC 7

PARTIES:	RA
v
STEPHEN NALDER
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:	JA 66 of 2008 (20800646)
DELIVERED:	18 March 2009
REPUBLISHED:	19 March 2009
HEARING DATES:	13 March 2009
JUDGMENT OF:	SOUTHWOOD J
APPEAL FROM:	FONG LIM ASM
CATCHWORDS:

CRIMINAL CODE (NT) – JUSTICES APPEAL – appeal against sentence – aggravated assault – contrary to s 188(1) and s 188(2)(a), (d) and (m) of the Criminal Code – whether sentence imposed by Youth Justice Court

manifestly excessive – appeal allowed – appellant re-sentenced

REPRESENTATION:

Counsel:

Appellant:	T Opie
Respondent:	K Ellson

Solicitors:

Appellant:	Northern Territory Legal Aid Commission
Respondent:	Office of the Director of Public Prosecutions

Judgment category classification: B

Judgment ID Number:	Sou0903
Number of pages:	15
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

RA v Nalder [2009] NTSC 7

No. JA 66 of 2008 (20800646)

BETWEEN:

RA

Appellant:

AND:

NALDER, Stephen

Respondent:

CORAM:  SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 18 March 2009)

Introduction

1. Contrary to s 188(1) and s 188(2)(a), (d) and (m) of the Criminal Code (NT),

on 8 September 2007 at Katherine, the appellant and five other youths
unlawfully assaulted Mr Jacob Gray. The unlawful assault was an
aggravated assault. The circumstances of aggravation were: Mr Gray
suffered harm; he was threatened with a plaster cast and sticks; and he was
unable to defend himself.

1. On 13 November 2008, the appellant pleaded guilty to the aggravated

assault of Mr Gray; and on 12 December 2008, the Youth Justice Court
convicted the appellant and sentenced him to four months detention. The
sentence of detention was wholly suspended by the Youth Justice Court and
an operational period of 12 months was specified. The conditions of the
suspended sentence were: the appellant was to be subject to supervision by
Community Corrections; and he was to obey all reasonable directions of

Community Corrections regarding his education, employment and

counselling.

1. The appellant appeals against his sentence. He does so under s 144 of the

   Youth Justice Act. The grounds of appeal are:

(a)	The sentence was manifestly excessive; and
(b)	The learned magistrate failed to adequately consider the principle of

parity.

The issue

1. The principal issue in the appeal is whether the sentence imposed on the

appellant was manifestly excessive. In my opinion it is. The appeal should
be allowed and the appellant should be re-sentenced.

The facts

1. The facts of the offending are as follows.

2. The appellant is an Aboriginal youth. He was born in Katherine on 21 July

   1994. He is 14 years of age. He was 13 years of age when he assaulted

   Mr Gray.

3. The appellant is the third eldest of six siblings, who range in age from nine

   months to 19 years. Both the appellant’s parents are alive. He resides with them in Katherine. He has a good relationship with his parents. His mother

receives benefits from Centrelink. His father does casual work for local
Aboriginal organisations.

1. At the time he was sentenced the offender was attending year eight at

   Katherine High School. He is an average student. He is able to read and

write but does not enjoy reading. He would like to complete year 12 of high
school but he does not want to do further studies. He had applied to attend
St John’s High School in Darwin and Nudgee College in Queensland.

1. A reference of Mr Charlie Shannon, who is a Director of the Katherine

   Football Academy, was tendered in evidence in the Youth Justice Court.

   Mr Shannon stated that the appellant is a keen sportsman and a valued

member of the Katherine Football Academy. He puts in maximum effort
with the team.

1. Prior to committing the aggravated assault on Mr Gray, the appellant had

   only once come into contact with the criminal justice system. In October 2006, he was charged with unlawfully damage property. The charge was

   dealt with under the Juvenile Diversion Scheme which the appellant

   successfully completed.

2. In the early hours of 8 September 2007, the appellant was at Katherine High

School oval with Wesley Hector, Henry Braun, William Maroney and Troy
Gillett. At 3.00 am, the appellant and his co-offenders walked to the back of

victim to the ground and Allan Dawson and an unknown number of the other
co-offenders repeatedly kicked and punched Mr Gray to the head and body.

the Eastside shops where Mr Gray was talking on his mobile telephone. At

that time Mr Gray was 27 years of age. The appellant and his co-offenders

heard obscenities which they thought came from Mr Gray.

1. Mr Gray walked to the other side of the Eastside shops and sat down on the

   gas tanks opposite the Friendzy Hair Team Salon. Moments later the

   appellant and his co-offenders found Allan Dawson who was walking through Grevillea Park. The offender and the co-offenders told Allan

   Dawson that Mr Gray had verbally abused them. The appellant and his co-

offenders then followed Allan Dawson who confronted Mr Gray with their
allegations. Mr Gray did not respond. He walked away.

1. A large fence separated the appellant and his co-offenders from Mr Gray and

when Mr Gray started walking away, the co-offenders and the appellant ran
around to the front of the Eastside shops. When the appellant got to the
front of the shops he found Allan Dawson and William Maroney assaulting

Mr Gray. Despite Mr Gray pleading for help, the appellant did nothing and

continued to watch him being assaulted.

1. At some point during the assault, Mr Gray managed to stagger to his feet

   and run towards the back of the Eastside shops. Allan Dawson tackled the had sticks which they used to hit Mr Gray. Henry Braun had a plaster cast

on his arm which he used to strike Mr Gray. During this assault the
appellant punched Mr Gray to the head at least once.

1. Mr Gray managed to stagger to his feet again and he ran across Grevillea

   Road toward the Katherine High School tennis courts. The appellant stood

and watched as Allan Dawson and William Maroney caught Mr Gray at the
tennis court fence.

1. The appellant stood nearby and watched as Mr Gray was repeatedly kicked

and punched in the head and then dragged by Allan Dawson to the back of
the East Side Shops. Allan Dawson, William Maroney and Hector Braun

continued to assault Mr Gray by repeatedly punching him to the head and
body. Eventually, some passers-by intervened and the appellant left the

area.

1. On 3 December 2007, the appellant attended the Katherine Police Station

where he was interviewed by the police. He admitted that he assaulted
Mr Gray. When asked why he assaulted Mr Gray, the offender said: ‘Allan

told us to hit him’.

[18]   The learned sentencing magistrate expressly found that the appellant decided

to join in the assault upon Mr Gray. She did not accept the appellant’s
statements to the probation and parole officer, who prepared the pre-
sentence report, that he had no choice other than to join in the assault of
Mr Gray.

1. At no time did the appellant have permission to assault Mr Gray.

2. As a result of the assault, Mr Gray required treatment in hospital. He had

   CT scans of his head, cervical spine and face. The scans revealed a

   fractured nasal bone. Mr Gray also suffered lacerations to his top lip and

   swelling and bruising to his face and body.

3. The appellant entered a late plea of guilty. He pleaded guilty on the

morning of his trial after the sentencing magistrate had ruled against the
appellant’s objections to the admissibility of certain evidence.

Proceedings relating to the co-offenders

1. The appellant’s five co-offenders were also dealt with for their role in the

assault upon Mr Gray. Four of the co-offenders were juveniles at the time
of the offence.

1. Allan Dawson was an adult at the time he assaulted Mr Gray. He was

   19 years of age. He had a prior criminal record. Allan Dawson had been

   given juvenile diversion for four matters. He committed another assault

while on bail for the assault upon Mr Gray. He initiated the assault on
Mr Gray and he repeatedly punched and kicked Mr Gray to the head and

body. He urinated on Mr Gray and he stole his mobile telephone. He was

convicted and sentenced by Mr M Carey SM on 29 October 2008 for stealing
and the aggravated assault. For the aggravated assault on Mr Gray, he was
sentenced to 12 months imprisonment with eight months to serve. Mr Carey
specified an operational period of two years. For the stealing, Mr Dawson
received one month to be accumulated upon the assault. Mr Dawson was
dealt with on the basis that he was the main offender and he initiated the

assault upon Mr Gray.

1. William Maroney was 12 years of age at the time he assaulted Mr Gray. He

   turned 13 shortly after the offending. While on bail for assaulting Mr Gray

   he committed the following offences: unlawful use of a motor vehicle;

stealing; enter an occupied dwelling at night; unlawful damage to property;
and trespass. He had no prior convictions. Master Maroney struck Mr Gray
five times with a tree branch causing him to lose consciousness and he

repeatedly kicked and punched Mr Gray to the head and body on three occasions during the assault upon him. On 12 September 2008, he was sentenced by Ms M Little SM for multiple offences, including the

aggravated assault upon Mr Gray. Master Maroney was sentenced to six
months detention which was suspended after he had served three months in
prison. He was also placed on a good behaviour bond for a period of

12 months with supervision. He was sentenced on the basis that he used a

tree branch approximately one metre long and five cm in diameter and was

12 years of age at the time of the offence. He was 13 years of age at the

time he was sentenced.

1. Wesley Hector was 15 years of age at the time that he assaulted Mr Gray.

   While on bail for the assault on Mr Gray he committed the following

offences: unlawful entry; and damage property while preparing to escape.
He had no prior convictions. Master Hector repeatedly punched and kicked
Mr Gray and he filled an empty coke can with sand and threw it at

Mr Gray’s head while he was one metre away from Mr Gray. The can hit

Mr Gray in the back of his head. Master Hector was originally charged with

aggravated assault, stealing and aggravated robbery. On 17 September
2008, he pleaded guilty to aggravated assault and stealing. He was

sentenced on the same day. He was convicted on both counts. For the
aggravated assault he received three months detention, suspended after one
month. An operational period of 18 months was specified by the Youth
Justice Court. For the count of stealing, he received a good behaviour bond

for a period of 12 months.

1. Wesley Hector was dealt with on the basis that he kicked Mr Gray in the

   back an unknown number of times. He also admitted he threw a can filled

   with sand which hit Mr Gray in the back of his head.

2. Henry Braun was 14 years of age at the time he assaulted Mr Gray. He did

not have a prior criminal record. Master Braun repeatedly kicked and
punched Mr Gray to the head and body. He also hit Mr Gray with his plaster

cast. He was originally charged with aggravated robbery and aggravated
assault. On 14 February 2008, he was sentenced for the charge of
aggravated assault. Henry Braun was convicted by the Youth Justice Court
and he was sentenced to one month of detention which was fully suspended
for a period of 12 months.

1. Henry Braun was dealt with on the basis that he kicked and punched Mr Gray in the back an unknown number of times, and also used his plaster

   cast to strike Mr Gray.

2. Troy Gillett was 14 years of age at the time he assaulted Mr Gray. At the

   time the appellant was sentenced, he was on diversion in Borroloola. The

   facts and circumstances surrounding his sentence were not placed before the

   sentencing Magistrate.

   The remarks of the sentencing magistrate

[30] The sentencing magistrate made the following remarks:

Now, I have had a good look at the pre-sentence report and I have heard what your solicitor has said on your behalf. I have also looked very closely at what the other co-offenders were given as penalty for this offending and the injuries that the victim sustained in this attack.

It cannot be ignored that the punch or punches that you gave him on that day was in the context of him being attacked by four people, some with weapons. He was helpless, he was on the ground and you decided, even though you were only 13, to join in. I do not accept that was your only choice, and even though you were only 13 I would have expected you to take the better road.

I have taken into account that you have pleaded guilty but you do not
get too much credit for that, given you only decided to plead guilty
after I decided to allow the evidence of the co-offenders in as
recorded statements. I also take into account that there was an adult
there who encouraged you to act in this way and, while that does not
exclude your actions, I can see that may have influenced you.

I have looked at the sentences that your co-offenders have been given and that you have shown to the court and the community that you are serious about your own rehabilitation; you are serious about getting yourself educated and keeping yourself out of trouble; and that it is paramount concern to the court and certainly a paramount consideration in relation to youth justice matters.

in relation to their offending, and it is my view that the sentence
given to Master Braun is disproportionate to the seriousness of his
offending, and I will take that into account. It is not a sentence that I
would have given Master Braun on the limited knowledge that I have
of his case and circumstances.

However, I am not in agreement with Ms Opie that this is a matter
that does not require a custodial sentence. It is clearly serious
offending that has to be discouraged of yourself and others youths
like you. In other words if I do not give you a custodial sentence,
my view is that kids out there who are involved in a similar situation
will not make the right choice if they can see that the court is not
taking this sort of offending seriously, taking into account all of your
personal circumstances.

So, given all of that, you will be convicted and sentenced to a term of detention of four months. However, given your continued rehabilitation, and your continued demonstration to the court and the community that you are able to keep yourself out of trouble, the term of detention will be fully suspended. It will be fully suspended. It will be fully suspended for 12 months and you will be subject to supervision by Community Corrections regarding your education and employment, and counselling that Community Corrections thinks appropriate.

Now, Master RA, you can understand by the presence of the guard
today in court, I was seriously considering that you would be serving
and actual term of imprisonment or an actual term of detention.
Subject to the submissions made to me by Ms Opie, I decided not to
make you serve an actual term of detention. However, in the next
12 months and beyond, if you re-offend in a similar manner, you will

most likely be spending four months in detention at Don Dale.

[31] seriousness of the aggravated assault which all of the offenders perpetrated
on Mr Gray, and general and specific deterrence. She gave much less

The sentencing magistrate’s overriding considerations were the objective and to his individual level of culpability. While she gave weight to the offender’s prospects of rehabilitation, the sentencing magistrate seems to have formed the opinion that the Youth Justice Court would fail to function

as a protector of the community unless deterrence and retribution were
significant sentencing considerations and a sentence of imprisonment was
imposed.

The objective seriousness of the appellant’s offending

1. The aggravated assault on Mr Gray in which the appellant participated was a

   serious assault. Mr Gray was assaulted by an adult and five youths. He was assaulted at night. He tried to get away before the assault started but he was prevented from doing so. The assault involved the use of sticks, a plaster

cast and a coke can filled with sand. It was a vicious and sustained assault.
Mr Gray was kicked and punched to the head and body numerous times.

Mr Gray was unable to defend himself and on three occasions he was

prevented from getting away from his attackers. He sustained bodily harm.

It is fortunate that Mr Gray was not more seriously injured.

1. The essential elements of the appellant’s involvement in the crime are: he,

   along with the other boys, complained to Allan Dawson, an adult, about Mr Gray verbally abusing them; he stood by and watched a vicious and

sustained assault on Mr Gray, which was initiated by Allan Dawson and
perpetrated by Allan Dawson and four other boys; he was encouraged to join

in the assault by Allan Dawson and during the assault upon Mr Gray he

punched Mr Gray once to the head with a closed fist.

1. While the appellant’s offending is aggravated by the fact he punched

   Mr Gray while in company with his co-offenders[1], the appellant’s

   participation in the offending was at the lowest level. He played only a very

minor role in the offending. He followed the other offenders and he only
threw one punch after being encouraged to do so by Mr Dawson. The

assault would have occurred in his absence and it would not have stopped if
he left the scene. The appellant’s culpability is of a lower level than all of

his co-offenders save for, perhaps, Troy Gillett.

The subjective elements of the appellant’s offending

1. At the time he committed the assault the appellant was only 13 years of age

   and he was entitled to be dealt with as a first offender. He had committed no crimes of violence prior to the assault on Mr Gray and he committed no offences during the 15 month period between the offending and sentence.

   He was encouraged to participate in the assault on Mr Gray by an adult. He

would have been under significant peer pressure. He was attending school
and he was receiving average grades. He had a stable home environment
and he had plans for his future education. He was a keen footballer who was
valued by his club.

1. While the appellant did not show a lot of remorse for his crime and he

appears to have endeavoured to minimise his role in the offending rather
than accept full responsibility for his conduct, these factors have to be
considered in the context of his young age. The offending was out of
character, and there were good prospects of the offender being rehabilitated.

Consideration

1. In my opinion the sentence imposed on the appellant was manifestly

excessive. The sentencing magistrate placed too much weight on general
deterrence. She placed insufficient weight on the following factors: a

sentence of imprisonment is a sentence of last resort when sentencing
juveniles; the appellant’s age; the offending was out of character; the low

level of the appellant’s participation in the assault on Mr Gray; the offender

had committed no offences during the 15 months between the crime and his

sentence; and the offender’s prospects of rehabilitation were good.
Protection of the community is also contributed to by the successful

rehabilitation of youthful offenders.

[38] In Lowe v The Queen[2] Gibbs CJ said[3]:

It is obviously desirable that persons who have been parties to the commissions of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and

such matters as the age, background, previous criminal history and
general character of the offender, and the part which he or she played
in the commission of the offence, have to be taken into account.

1. In this case there are real and substantial grounds for distinguishing between

   the offending of Allan Dawson, William Maroney, Wesley Hector and Henry

   Braun and the offending appellant. The offender was much less culpable and he had better prospects of rehabilitation than Allan Dawson, William Maroney and Wesley Hector.

2. The primary purposes in sentencing the appellant should have been his

rehabilitation and reintegration into the community and making him
accountable for his conduct. He could be made accountable for his conduct
without the imposition of a sentence of detention. As the offending was out
of character and as the offender had committed no further offences for a
period of 15 months considerations of specific deterrence did not require the

imposition of a sentence of detention. The object of accountability could be

achieved by recording a conviction, requiring the appellant to be of good
behaviour and appropriate supervision.

Orders

[41] In the circumstances I make the following orders:

1.           The appeal is allowed.

2.           The suspended sentence of four months detention imposed on

the appellant by the Youth Justice Court is set aside.

Re-sentence

1. I re-sentence the appellant. His conviction of the aggravated assault on

   Mr Gray at Katherine on 8 September 2007 is confirmed. I make a good

   behaviour order under s 83(f) and s 91 of the Youth Justice Act in the

   following terms:

   1.           The appellant is released on his own security in the sum of $500.

   2.           During the period of 12 months from today the appellant is to appear before the Youth Justice Court if called upon to do so.

   3.           The appellant is to be of good behaviour for a period of 12 months from today.

   4.           During the period of 12 months from today the appellant is to observe the following conditions:

(a)	The appellant is to reside with his parents at their address in Katherine.
(b)	Director of Correctional Services or his delegate and he

The appellant is to be under the supervision of the nominated by the Director of Correctional Services or his delegate.

(c)

The appellant is to obey the reasonable directions of the counselling, education and employment.

(d) The appellant is not to directly or indirectly associate with Allan Dawson, William Maroney, Wesley Hector and Henry Braun.

----------------------------

[1] Section 6A (a) Sentencing Act (NT)

[2] (1984) 154 CLR 606

[3] (1984) 154 CLR 606 at 609