Rowbottam v Baker - [2002] NTSC 58

Rowbottam v Baker [2002] NTSC 58
PARTIES:HELEN MAREE ROWBOTTOM
v

THOMAS EDWARD BAKER

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 59/02 (20202413)
DELIVERED:  2 October 2002
HEARING DATES:  25 September 2002
JUDGMENT OF:  THOMAS J
CATCHWORDS:

CRIMINAL LAW – SENTENCING – suspended sentence – first offender – sentence not manifestly inadequate – sentencing magistrate gave sufficient weight to the objective circumstances of the offence – sentencing magistrate gave sufficient weight to the principles of general and specific deterrence.
Criminal Code Act 1999 (NT) s 166; s 188(2)
Everett v The Queen (1994) 181 CLR 294; The Queen v Raggett & Ors (1990) 50 A Crim R 41; The Queen v P (1992) 39 FCR 275, applied.
REPRESENTATION:
Counsel:
Appellant:G. Hayward
Respondent:  H. Spowart
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:        C
Judgment ID Number:  tho200212
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rowbottam v Baker [2002] NTSC 58
No. JA 59/02 (20202413)

BETWEEN:
HELEN MAREE ROWBOTTOM

Appellant
AND:
THOMAS EDWARD BAKER

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 2 October 2002)

This is a Crown appeal against sentence imposed by a stipendiary magistrate on 6 June 2002.
The respondent entered a plea of not guilty to the following two charges:
“On the 18^th day of February 2002 at Darwin in the Northern Territory of Australia.
1.Unlawfully assaulted Graeme Lorenz; the circumstance of aggravation being that the said Graeme Lorenz was threatened with an offensive weapon, namely a knife.
Contrary to Section 188(2) of the Criminal Code.
AND further at the same place on the same date
2.did with intent to cause fear, make a threat to kill a person, namely Graeme Lorenz which threat was of such a nature as to cause fear to any person of reasonable firmness and courage.
Contrary to Section 166 of the Criminal Code.”
The charge proceeded to hearing with witnesses called for the prosecution. The defence did not call evidence.
The learned stipendiary magistrate made the following findings (tp 27):
“… I’ve heard evidence in this case from Graham Lorenz and two police officers. Graham Lorenz says on oath that he had lived for some three or four days in a room at the Capricornia Motel with Thomas Edward Baker. I take it from his evidence, who him and a girl called Kimber had put up on the basis that he didn’t – temporarily on the basis that he didn’t have a home.
He’s told me on oath that on Monday morning at 6 pm(?) he heard the door being kicked down and Baker appeared. Prior to this there’d been a knock some five to 10 minutes earlier and this was after Baker had been told to leave. After the door was kicked down, Lorenz says he then found a knife being held to the left side of his neck whilst he was lying in bed with threats of ‘I’ll kill you, you cunt’ and words to that effect. He’s told me that it was Baker, and Baker was really angry. He lay there still and he was in shock – says Lorenz. Kerry-Ann screamed at him, after which Baker was waving the knife around and Lorenz put his hand up in a protective gesture and received a cut to one of his fingers.
There was questioning of that witness to the effect that – amongst other things that the defendant had left in that room personal effects and that he wanted them back and they should have been packed or otherwise left so he could get them back and I apprehend effectively that there was an agreement by Lorenz to the fact that personal effects were in there.
Lorenz led me to believe that the threats to kill so far as he was concerned were real, that he believed them to be real and that they caused fear in him. My impression and my belief from Lorenz’s evidence that he was a person – that is to say Lorenz was a person of reasonable firmness and courage – and that is to say not such a wimp as to apprehend fear from something that might have been a joke.
At the end of the day, on all of the evidence and having regard to possible explanations and excuses, I am convinced beyond reasonable doubt that the assault is made out and the threat is made out such that I find the defendant guilty beyond reasonable doubt on charges 1 and 2. …”
The respondent, Mr Baker, then gave an explanation to the Court about what had occurred. The explanation is a little difficult to follow. However, Mr Baker, appears to be explaining his concern about the association between Graham Lorenz and the lady named Kerry-Ann whom Mr Baker describes as his girlfriend.
The learned stipendiary magistrate was advised that the respondent was 26 years of age without prior conviction.
Mr Baker, who was not represented at his trial, stated he had been employed mining and drilling and depending upon the outcome of his case, would be returning to Alice Springs to take up employment drilling.
The learned stipendiary magistrate says he accepted the evidence of Mr Lorenz that he was shocked, he was numb and he was in fear. His Worship then made the following comments on sentencing Mr Baker for the offences (tp 31):
“This is a serious thing to kick in a door and produce that knife which is a wicked, wicked knife. I apprehend that you had your personal effects in there and you got upset because they wouldn’t open the door which had been locked and you felt - - -
……
… It is a serious illegality that occurred that night and unfortunately assaults with weapons and knives have become prevalent in Darwin and despite you being a first offender this is so serious that to invade this room, kick down the door and produce that knife to a person in bed and hold it against his neck with the threats you made, is something that is not to be tolerated and to be met by a serious sentence.
So in terms of charges 1 and 2 you are convicted. You are sentenced to three months’ imprisonment but I suspend it forthwith on the basis that you do not commit any other offence punishable by imprisonment for a period of two years.”
The maximum penalty under the Criminal Code on Count 1 is five years imprisonment. The maximum penalty on Count 2 is seven years imprisonment.
The essence of the Crown appeal is that in suspending the period of three months imprisonment imposed for the offences, the result was a sentence that was manifestly inadequate.
The principles regarding appeals by the Crown are set out in Everett v The Queen (1994) 181 CLR 295 at 305:
“… the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge’s orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.”
In The Queen v Raggett & Ors (1990) 50 A Crim R 41, the Court of Criminal Appeal of the Northern Territory held that to establish the existence of necessary (unidentified) error, the Crown must show that the sentences are not just arguably inadequate but so very obviously inadequate that they are unreasonable or plainly unjust.
The specific grounds of appeal are:
“1. The sentencing Magistrate failed to give sufficient weight to the objective circumstances of the offence.”
In his remarks on sentence, which I have set out above, the learned stipendiary magistrate clearly identified the seriousness of the objective circumstances and imposed a term of imprisonment for the offence. I am not persuaded that suspending this period of imprisonment results in a sentence that is so very obviously inadequate that it is unreasonable or just plain unjust.
I accept the submission of Ms Spowart, counsel for the respondent, that a suspended sentence is a significant penalty.
“‘A suspended sentence is a sentence of imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during it’s currency.’ (The Queen v. P (1992) 39 FCR 276 at pp 285 – 286.”
“2. The sentencing magistrate gave insufficient weight to the principles of general and specific deterrence.”
In his remarks on sentence, which I have already adverted to, the learned stipendiary magistrate addressed the principles of general and specific deterrence and their role in the sentencing process. I do not consider he has been shown to be in error.
On a Crown appeal of this nature, it is not for me to substitute my own opinion for the sentence imposed by the learned stipendiary magistrate.
The sentences are arguably inadequate, but not so very obviously inadequate that they are unreasonable or just plain unjust (The Queen v Raggett & Ors (supra)).
For these reasons the appeal is dismissed.

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