Sauerwald v Brennan - [2006] NTSC 81

Sauerwald v Brennan [2006] NTSC 81
PARTIES:KEITH RAYMOND SAUERWALD
v

MICHAEL DAVID BRENNAN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 92 of 2005 (20508846)
DELIVERED:  30 October 2006
HEARING DATES:  8 May 2006
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

Appeal against conviction – apprehended bias – appeal against sentence – bond – manifestly excessive
Justices Act s 163
Summary Offences Act s 47(e)
Antoun v R (2006) 80 ALJR 497;
Liddy v R [2005] NTCCA 4;
Tatam v Barker (1998) 8 NTLR 56;
Webb & Hay v The Queen (1994) 181 CLR 41
REPRESENTATION:
Counsel:
Appellant:KR Sauerwald
Respondent:  J Duguid
Solicitors:
Appellant:Litigant in person
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou0632
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Sauerwald v Brennan [2006] NTSC 81

No. JA 92 of 2005 (20508846)
BETWEEN:

SAUERWALD, Keith Raymond

Plaintiff

AND:

BRENNAN, Michael David

Defendant

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 30 October 2006)
Introduction

The appellant appeals to the Supreme Court under s 163 of the Justices Act. He appeals against his conviction in the Court of Summary Jurisdiction on 8 December 2005 for the summary offence of unreasonably causing a substantial annoyance to other persons contrary to s 47(e) of the Summary Offences Act and the sentence imposed on him being a conviction and a bond to be of good behaviour for 5 years on his own security of $3000.
The appellant was a self represented litigant. He told the court that he has become a well known Darwin identity. He received a lot of publicity when he applied for the position of hangman with the Government of Singapore for the execution of Nguyen Van Tran.
The facts on which the appellant was convicted in the Court of Summary Jurisdiction on 8 December 2005 are that on 2 April 2005 in Darwin the appellant placed a handwritten note into the letter box for the residence situated at number 7 Drysdale Street, Parap. The residence was occupied by Karen Louise Sanders and Julie May Howes who had two dogs that barked a lot. The note stated:
As you have continuously ignored the rights of the surrounding residences in refusing to control your two mongrels and stop them barking and yapping, as the DCC [Darwin City Council] refuse to do anything about you and as the police also refuse to stop the problem, then it is up to the public to put a stop to it. The time is 2pm Saturday 2 April 2005. You have 48 hours to remove the mongrels from this area. Failure to do so will mean they will be given a dose of poison which is guaranteed to put a stop to them. Do they live or do they die? Up to you!
KRS
The note caused Karen Louise Sanders and Julie May Howes distress…

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 Sauerwald v Brennan

Details

AGLC: Sauerwald v Brennan [2006] NTSC 81
Case: [2006] NTSC 81
Decision Date: 30 October 2006

CaseChat Overview and Summary

The appeal against conviction and sentence in this case was brought by the appellant, Sauerwald, against his conviction and sentence imposed by the Court of Summary Jurisdiction. The appellant had been convicted of contravening s 47(e) of the Summary Offences Act by unreasonably causing substantial annoyance to Julie Mariee Howes and Karen Louise Sanders. The appellant had placed a note in the mail box of the residence of the respondents, which led to the filing of a complaint against him. The appeal against the conviction was based on the grounds of apprehended bias and the appeal against the sentence was based on the argument that the sentence imposed was manifestly excessive.

The court had to determine whether the appellant's conviction was tainted by apprehended bias and whether the sentence imposed was manifestly excessive. The court held that there was no apprehended bias as the presiding magistrate had not acted in a way that would lead a reasonable observer to conclude that he was biased. The court also held that the sentence imposed was not manifestly excessive as the appellant had not been severely provoked by the constant barking of the dogs and the sentence was proportionate to the objective seriousness of his offending.

The appeal against conviction was dismissed, and the conviction was confirmed. The bond currently in place was quashed, and the appellant was ordered to enter into a fresh bond to be of good behaviour for the term of the bond. The bond was to take effect from its execution and was to expire on 8 December 2007. The appellant was to give a fresh security of $1500 and was to appear before the Court of Summary Jurisdiction if called upon to do so at any time during the term of the bond.

Orders

Orders of the court

1. The appeal against conviction is dismissed. 2. The appellant's conviction is confirmed. 3. The bond currently in place is quashed effectively as from today. 4. Within seven days from today the appellant is ordered to enter into a fresh bond to be of good behaviour for the term of the bond. 5. The bond is to take effect from its execution and is to expire on 8 December 2007. 6. The appellant is to give a fresh security of $1500. 7. The appellant is to appear before the Court of Summary Jurisdiction if called upon to do so at any time during the term of the bond.

Background

Background to the litigation

As to the sentence that was imposed by the Court of Summary Jurisdiction, the appellate submitted in essence that the sentence was manifestly excessive. The learned magistrate had failed to give consideration that he had been severely provoked by the constant barking of the dogs and the sentence was utterly disproportionate to the objective seriousness of his offending. He had telephoned the residents of 7 Drysdale Street, Parap on a number of occasions about the problem that the dogs were causing and he telephoned the Darwin City Council dog squad on two occasions and he had asked them if they would come and do something about the problem but they refused. He did not harm the dogs. He did not throw a poison bate to the dogs.The facts The facts are as follows. The appellant is over 65 years of age. He is a pensioner. He receives a pension of about $500 a fortnight. He lives alone in a flat in Parap. During 2003 the appellant became concerned about the noise that his neighbours were making in the block of flats in which he lived and about the suitability of some of the tenants to reside in the block of flats. As a result he wrote to Mr Simondson and other staff at Territory Housing complaining about the noise that his neighbours were making and the perceived lack of action with regard to overcoming the problem by Territory Housing. Mr Simondson became concerned about the language and content of the letters that the appellant wrote to him. He felt threatened by them. As a result of his concerns Mr Simondson filed an apprehended violence complaint in the Court of Summary Jurisdiction. The complaint was heard by the presiding magistrate on 19 November 2003. During the hearing the appellant asked to read out in court a statement that he had prepared. The presiding magistrate refused the appellant’s application. Instead he adjourned the hearing of the apprehended violence complaint filed by Mr Simondson for two hours so that the appellant could consider his position. It may be inferred that the reason for the presiding magistrate refusing the appellant leave to read out his prepared statement was that such a process was contrary to the legal principles governing the receipt of oral evidence by a court. The appellant could not make a self-serving statement which was likely to contain hearsay evidence. After the adjournment the appellant told the Court of Summary Jurisdiction that he denied any liability to Mr Simondson. Nonetheless he consented to being placed on a good behaviour bond. As a result of the appellant’s concession the presiding magistrate placed the appellant on a good behaviour bond for 12 months on the appellant’s own recognizance of $2000. In so doing the presiding magistrate made no adverse findings against the appellant. The proceeding was resolved in a very short period of time. On 2 April 2005 the appellant placed the note referred to par 3 above in the mail box at 7 Drysdale Street Parap. The residence at 7 Drysdale Street Parap was occupied by Karen Louise Sanders and Julie May Howes. The occupiers complained to the police. The police interviewed the appellant and he admitted that he had placed the note in the mail box. As a result a complaint was filed in the Court of Summary Jurisdiction on 24 May 2005. The complaint charged the appellant with unreasonably causing substantial annoyance to Julie Mariee Howes and Karen Louise Sanders contrary to s 47(e) Summary Offences Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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