The Queen v Bara

[2006] NTCCA 17

The Queen v Bara [2006] NTCCA 17

PARTIES:	THE QUEEN
v
BARA, Raymor
TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:	CA 31 of 2005 (20424770)
DELIVERED:	18 AUGUST 2006
HEARING DATES:	13 JULY 2006
JUDGMENT OF:	MARTIN (BR) CJ, ANGEL & SOUTHWOOD JJ
APPEAL FROM:	NTSC, 20424770, 2 December 2005
CATCHWORDS:

CRIMINAL LAW

Appeal – Crown appeal against sentence – unlawfully causing grievous harm – sentence manifestly inadequate – appeal allowed – re-sentenced.

R v Barbara (NSWCCA, unreported judgment, 24 February 1997); R v
Hicks (1987) 45 SASR 270; R v Osenkowski (1982) 30 SASR 212,
applied.
Massie v The Queen [2006] NTCCA 15; R v Davy (1980) 2 A Crim R

254, followed.

NT Criminal Code s 181

REPRESENTATION:

Counsel:

Appellant:	R Coates, D Lewis & M Heffernan
Respondent:	S Cox QC & G Smith

Solicitors:

Appellant:	Office of the Director of Public Prosecutions
Respondent:	Northern Territory Legal Aid Commission
Judgment category classification:	A
Judgment ID Number:	Mar0612
Number of pages:	13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

AT DARWIN

The Queen v Bara [2006] NTCCA 17

No. CA 31 of 2005 (20424770)

BETWEEN:

THE QUEEN

Appellant

AND:

BARA, Raymor

Respondent

CORAM:  MARTIN (BR) CJ, ANGEL AND SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 18 August 2006)

THE COURT:

Introduction

[1]     The respondent pleaded guilty to unlawfully causing grievous harm. The

learned sentencing Judge imposed a sentence of 18 months imprisonment

which was suspended immediately upon conditions including supervision by

the Director of Correctional Services. The Crown appealed against the

sentence on the basis that the sentence was so manifestly inadequate as to

demonstrate error of principle.

[2]     At the conclusion of submissions on the appeal, the Court allowed the

appeal and set aside the sentence. In connection with re-sentencing the
respondent, the Court noted that the respondent had now been living in the

community for nearly two years since he committed the offence. For a

considerable portion of that time, he had been living with the victim as

husband and wife. In addition, it was over seven months since the

respondent had been sentenced. In those circumstances the Court sought the

assistance of a pre-sentence report with respect to the respondent and his

current circumstances.

Facts of offending

[3]     At the time of the offending in October 2004 the respondent was aged 19

years. The victim was aged 16 and had been in a boyfriend/girlfriend

relationship with the respondent for approximately one year.

[4]     The respondent lived with his mother in the Angurugu community. In mid

October 2004, at the request of the respondent, the victim agreed to stay

with him at his mother’s house. After about a week the victim expressed a

desire to go home and visit her family, but the respondent told her she was

not permitted to go. He did not give a reason.

[5]     On 29 October 2004 two female friends of the victim arrived at the

offender’s house in a motor vehicle. The victim approached the car where

her friends asked if she wanted to go for a drive. The victim turned to the

respondent who had followed her to the car and asked if she could go home

and visit her family. He replied “No, you’re not allowed.” The victim

opened the rear door and began to enter the motor vehicle.

[6]     The respondent had a knife in his back pocket. When the victim attempted

to enter the motor vehicle, the respondent stood at the rear door leaning into

the vehicle and took the knife in his right hand with an underhanded grip.

He then attacked the victim with the knife. The respondent used the knife in

a slashing motion and slashed at the victim’s chest, shoulder, back and arm.

The victim screamed and put her arms up in an endeavour to protect herself.

One of her friends yelled at the respondent to stop. That friend managed to

lean across the victim and close the rear door enabling the driver to move

the vehicle away from the respondent.

[7]     The victim sustained significant injuries. They were described in the Crown

facts in the following terms:

“(1) a 6.5 centimetre laceration in her left upper chest on the back

that was 1 centimetre, (2) a 2.5 centimetre long and 2 centimetre
deep laceration on her right upper chest wall, (3) a 2 centimetre long
and 2 centimetre deep laceration on her right upper chest wall, (4) a
3 centimetre long and 2.5 centimetre deep laceration to her right
upper arm, (5) a 4 centimetre V shaped cut to her right lower
foreman (sic) in which a cut tendon could be seen. She had lost
sensation to her right fifth finger and could not fully extend or flex

the fingers on her right hand.

The lacerations to her chest and right upper arm were sutured and she

was then medevac’d to Gove District Hospital because of the need

for surgery to repair a lacerated right ulna nerve and two tendons. operated on at Royal Darwin Hospital on 30 October 2004. It was found that the ulnar nerve had been cut and it was repaired. The tendon of flexor carpi alnaris was completely divided and the flexor digitorum profundus was partly divided. They were both repaired

and her wrist was put in a splint.”

1. In her victim impact statement, the victim said that she “felt sad” when she

   was struck with the knife and that she cried because she was scared of the

   respondent. She said the injuries were very painful and she now has a scar

   on her wrist. The victim also said that she remains the girlfriend of the

   respondent and wishes to be his girlfriend. The statement concluded:

   “I do not want Ramor to go to jail.”

[9]     The respondent was born in Darwin and raised in Angurugu on Groote

Eylandt. He went to school until aged about 14 and has not undertaken any

particular employment since leaving school. Significantly, the respondent

had not previously been convicted of any offence and the sentencing Judge

accepted that he was a responsible young person whose actions were out of

character. His Honour also accepted that the offending occurred because the

respondent was jealous as a consequence of something that had been said to

him the night before and repeated on the day of the offence. That jealousy,

coupled with the victim’s defiance when the respondent told her she could

not leave, led to what the sentencing Judge described as a “quite immature”

response.

[10] The respondent was on bail prior to sentencing for in excess of a year.

When the victim returned to Angurugu the respondent immediately sought

her out and apologised. The respondent used his time on bail to mend his

relationship with the victim and no further violence had occurred prior to

sentence being imposed on 2 December 2005. The sentencing Judge
accepted that at the time of sentencing the respondent and victim were living

together as husband and wife at the home of the respondent’s mother.

[11] At the time of sentencing the respondent was about to undertake manhood

ceremonies which would require a period of isolation in a male only

environment. The Judge was informed that during the period of isolation the

elders of the community would discuss with the respondent matters of

“men’s business”, including the respondent’s conduct toward the victim.

[12] There is no error apparent in the approach or reasoning of the sentencing

Judge. His Honour expressly acknowledged that the wishes of the victim

were not determinative of sentence and referred to the principles and

observations relevant to sentencing in connection with violence in

Aboriginal communities as discussed by this Court R v Wurramara (1999)

105 A Crim R 512. The critical question is whether the sentence is so

manifestly inadequate as to demonstrate that in some unspecified manner his

Honour must have fallen into error.

Principles

[13] The principles governing Crown appeals are well established. They were

discussed in R v Riley [2006] NTCCA 10 and it is unnecessary to repeat that

discussion. It is sufficient to note that, as explained by Hunt CJ at CL in R v

Barbara (NSW Court of Criminal Appeal, unreported judgment number

60638 delivered 24 February 1997):

“Sentences which are so inadequate as to indicate error or departure

from principle, and sentences which depart from accepted sentencing

standards, constitute error in point of principle which the Crown is

entitled to have this Court correct.”

Competing considerations

[14] In substance the Crown highlighted the gravity of the criminal offending

which was unprovoked and caused serious injuries. The Crown submitted

that the motivation of jealousy is not an unusual motivation in domestic

circumstances within Aboriginal communities and could not be regarded as a

feature of mitigation. The Crown emphasised the dangerous nature of the

weapon used, being a 20 – 30 centimetre hunting knife, and the fact that the

attack was sustained in the face of the victim’s screams and the call by her

friend that he cease. While the Crown did not challenge the assessment of

the sentencing Judge that the appellant has good prospects of rehabilitation,

nevertheless the Crown urged that the sentence conveys the wrong message

to perpetrators of violence, including violence in domestic circumstances,

and general deterrence requires the imposition of a significantly longer

sentence.

[15] Counsel for the respondent acknowledged the gravity of the respondent’s

conduct, but emphasised the respondent’s youth, lack of maturity, plea of

guilty and remorse. In particular, counsel emphasised that the respondent is

a young person who, to his considerable credit and contrary to the

experience of many in his community, reached the age of 19 years without

getting into trouble. In addition, the respondent has remained out of trouble
since the commission of the offence and is now reconciled with the victim.

The respondent continues to live with the victim at the home of her mother.

Manifestly inadequate

[16] The objective circumstances of the respondent’s crime were particularly

serious. He repeatedly attacked a defenceless woman with a knife. He was

not distracted by the victim’s screams or the call from her friend for him to

stop. The attack came to an end only because the victim’s friends were able

to shut the door of the car and drive away.

[17] General deterrence was of particular importance in the exercise of the

sentencing discretion. Offences of the type committed by the respondent

continue to be prevalent in Aboriginal communities. Many such attacks

occur in domestic situations. Jealousy, often coupled with a desire to

exercise and maintain control over a female partner, is a common motivation

for such attacks. Regret is frequently expressed after the attacks, but the

combination of jealousy and a desire for or belief in dominance, usually

coupled with intoxication, continues to motivate serious attacks upon

women partners in Aboriginal communities. It is noteworthy that the

respondent was not affected by alcohol or any other drug.

[18] Women and children in Aboriginal communities are particularly vulnerable

to attacks by men in domestic situations. Such victims lack the support

mechanisms that are available in many other sections of our community.

These vulnerable victims are entitled to the protection of the law. This
Court has repeatedly emphasised over many years that men in Aboriginal

communities must recognise that attacks of this nature upon the more

vulnerable members of the communities, particularly when dangerous

weapons are used, will not be tolerated and will be met with severe

punishment.

[19] It is also important that men in Aboriginal communities understand that the

consequence of severe punishment will follow violent attacks upon women

and children notwithstanding the wishes of the victims. It is not uncommon

for female victims in Aboriginal communities to express a desire that their

violent partner not be imprisoned, even in the face of significant violence

causing serious injury. Such victims often experience conflicting emotions.

For example, they wish the violence to stop, but for family reasons they do

not wish the offender to be imprisoned. The message must be sent to men in

Aboriginal communities that the wishes of a victim, be they freely given or

given under some form of duress, will not prevail in the face of serious

criminal conduct.

[20] Notwithstanding the respondent’s youth and good character and the other

matters of mitigation to which counsel for the respondent referred, it is our

view that the sentence of 18 months fully suspended was so manifestly

inadequate as to demonstrate error in point of principle. The sentence was

so manifestly inadequate as to “shock the public conscience”: R v

Osenkowski (1982) 30 SASR 212 at 213. Further, in our view, this is one of those rare cases in which this Court should allow the Crown appeal and re-

sentence the respondent.

Re-sentencing

[21] In re-sentencing the respondent, the court is required to consider not only

the appropriate sentence to be imposed, but also whether the respondent

should be required to serve any period of that sentence and, if so, what

period. In this exercise the court is required to balance the objective

seriousness of the offending against matters personal to the respondent

which can reasonably be advanced by way of mitigation. In addition, in the

particular circumstances of the respondent, the principle of double jeopardy

is of particular significance because the respondent has been living in the

community for nearly two years since the commission of the offence.

[22] Had the respondent not pleaded guilty and demonstrated genuine remorse,

we would have imposed a sentence of four years imprisonment. After

allowing a reduction of one year in recognition of the respondent’s plea and

genuine remorse, we impose a sentence of three years imprisonment. We

emphasise that in recognition of the principle of double jeopardy, which is

of particular significance because the respondent has not been in custody,

the starting point of four years is significantly less than the period which

would have been an appropriate starting point when sentencing at first

instance. We also emphasise that the starting point would have been longer

but for the respondent’s youth and prior good character.

[23] In arriving at this sentence we have had regard to the guidance given by this

Court with respect to penalties for this type of offending in Wurramara. We

have also borne in mind the observations of this Court in Massie v The

Queen [2006] NTCCA 15 that, generally speaking, penalties for violent

crimes have increased since Wurramara was decided in 1999. As noted in

Massie, however, notwithstanding that general increase a review of the cases

suggests that a number of sentences imposed in recent years have been at the

lower end of the scale of penalties and have not adequately reflected the

gravity of the criminal offending.

[24] As to the question of suspension of all or part of the sentence, we were of

the view that in the circumstances presented to the sentencing Judge, his

Honour was plainly in error in suspending the sentence entirely.

Notwithstanding the existence of strong mitigating factors, including the

respondent’s youth and prior good character, the objective seriousness of the

respondent’s crime far outweighed those mitigating factors and required that

at least some part of the sentence be served.

[25] Although in December 2005 the sentencing Judge should have required that

the respondent serve part of the sentence, additional factors now arise for

consideration in re-sentencing approximately eight months after the original

sentence was imposed and nearly two years after the offence was committed.

[26] First, as we have said, in these circumstances the principle of double

jeopardy is of particular importance. The respondent is a young man who
has never been to gaol. Since committing the offence he has been living in

his community without further difficulty for nearly two years. In substance,

having received his penalty, the respondent has got on with his life and his

progress towards rehabilitation, including the successful reconciliation with

the victim. He now faces the prospect of not only an increased sentence

being imposed, but of being removed from his community and family and

being imprisoned.

[27] In R v Hicks (1987) 45 SASR 270, in the context of a Crown appeal against

a sentence imposed for the offence of causing death by dangerous driving

committed by a 66 year old who had no prior convictions, King CJ observed

that when such a person has been told that he will not have to go to prison, a

great load is lifted from the mind and the consequences of reversing that

decision can be devastating. Those observations are equally applicable to

the respondent who is a young Aboriginal person with no prior convictions.

In R v Davy (1980) 2 A Crim R 254, Muirhead J made similar observations

that a person in this type of situation is likely to become, not only

bewildered, but embittered. The critical question is whether, having

increased the penalty, considerations of justice and protecting the public

require that notwithstanding these factors this young offender should be

required to serve a sentence of imprisonment which will inevitably create

disillusionment and subject a young person of previous good character to the

corrupting influence of prison.

[28] In considering the question of suspension at this time, careful attention must

be given not only to the seriousness of the respondent’s offending, but to his

progress in the last two years, his current circumstances and the prognosis

for the future. These are factors which are particularly important i n the

ultimate consideration of what orders will best protect the public. The pre-

sentence report confirms that the respondent has been very immature in

managing his anger and has lacked the maturity to fully comprehend the

complexities of his relationship with the victim. Both the victim and her

mother have confirmed that the respondent has successfully resumed living

with the victim and has not displayed any anger towards the victim. Given

the respondent’s prior good character, his progress since committing the

offence demonstrates that there are very good prospects of rehabilitation

and, if reasonably possible, it is in the best interests of the community not to

interrupt that progress with imprisonment in an adult prison.

[29] Having regard to all the circumstances, we are of the view that in the

exceptional circumstances facing this Court, notwithstanding that the

sentence should not have been suspended by the sentencing Judge in

December 2005, it is now appropriate to suspend the sentence entirely. In

reaching this decision we note that while the Crown did not concede that the

sentence should be suspended entirely, the Crown accepted that in the

particular circumstances it would be harsh to now send this young

respondent to prison.

[30] The suspension is on condition that the respondent be of good behaviour for

a period of three years from today, that period being the operative period

during which the respondent is not to commit any further offences for the

purposes of the Sentencing Act. During the period of three years the

respondent is to be under the supervision of the Director of Correctional

Services and obey the reasonable directions of the Director or a probation

officer including directions as to reporting, place of residence, training,

employment, associates and counselling or treatment generally or for anger

management.

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