White, Philip Charles v The Queen

[1981] FCA 86

Y J

I N THE FEDERAL COURT OF AUSTRALIA ) )

NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG. 24 of 1980

)

GENERAL	D I V I S I O N	)
BETWEEN:

PHILIP CHARLES WHITE Appellant

and

THE QUEEN Respondent

FOX, MUIRHEAD, REASONS FOR JUDGMENT 4 FEBRUARY 1981

McGREGOR JJ. TEMPORE) (EX

FOX J: The judgment and reasons which I deliver are those of

the court. Philip CharlesWhite, the appellant, appeals

against the sentence imposed upon him on 6 October 1980

in respect of a conviction for manslaughter, recorded

against him on 29 September 1980. On that day the

appellant was charged with the murder of the deceased

t o which he pleaded not g u i l t y but guil ty o f

manslaughter. The Crown accepted that plea in discharge

of	the indictment.
On	3 June 1980 the appellant, then unemployed, as he
had	been for much of the previous year, spent the day

dr inking in the ho te l a t Humpty Doo with the deceased

and his wife. It seems tha t the th ree l e f t the ho te l

a t about 6.30 p.m. and drove t o a house adjacent to which

were two caravans. In one of the caravans the appellant

lived. The home was occupied by the deceased and his wife.

The appellant at that time, to quote his own words,

"liked" the deceased's wife	"more	than	I	should have".
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In fact, they had agreed to go away together though

the evidence does not establish that the deceased

knew this. The relationship between the appellant

and the deceased, until the events immediately prior

to the death of the deceased, had so far as it appears

been a reasonably friendly one and there had been no

quarrel between them while they were in the hotel.

Prior to the day in question, according to the

appellant, the deceased had ill-treated his wife

to the annoyance of the appellant and on their return

to the caravan park on 3 June 1980 the deceased had

at least spoken harshly to his wife in the appellant's

presence. According to the appellant he became

I , upset" at this, remonstrated with the deceased and

then decided to "scare" him with the appellant's

rifle. Outside the caravan park he fired a shot into

the air, whereupon, according to him, the deceased

laughed and called him an idiot. The appellant then

went into the kitchen of the house where the deceased

was seated at a table. The appellant reloaded the

gun and, so he said, intending only to scare the

deceased, discharged the rifle again. In ? record

of interview he said he meant only to shoot up in the

air or over the deceased's head but the bullet struck

the deceased in the forehead and he died from the

wound within a very short time. The deceased had fired

the gun from a position at about his right hip, without

aiming it, and over a distance said to be about 10 to

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12 feet. He said to the deceased, whom he was

attempting to scare, "stop picking on her you

bastard", the her referred to of course being the

deceased's wife. The appellant showed immediate

concern at what he had done and ran to a nearby place

where he insisted upon having use of the phone to

summons an ambulance and the police.

The learned Chief Justice sentenced the appellant

on the charge of manslaughter to imprisonment with

hard labour for eight years, with	a non-parole period
of four years.

The appellant contends that the sentence was

manifestly excessive, and that in sentencing the learned

judge erred in fixing a non-parole period of four years

which it is said is, in all the circumstances manifestly

excessive. We have taken this to mean that the period

of sentence which may have to be served before the

non-parole period might operate was too long. Counsel

has, we think, presented to us all the arguments that

can in the circumstances be presented, but we are

unconvinced that the appeal should be allowed. In

fact, we are of the view that what the Chief Justice

did in the way of sentencing was neither severe nor

excessive.

A particular matter relied upon was, as it is

submitted, that the learned Chief Justice erred in finding

that the appellant had two or more convictions involving

actual violence which suggested that when the appellant

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was under the influence of alcohol he was given t o

violence and lack of self control. The par t icular

passage in the considered judgment of the Chief Jus t ice

is	as follows:
I , You do, however, have two o r more previous

convictions involving actual violence, which suggested

a t t he l ea s t when you are in dr ink you a re given t o

violence and lack of control."

Doubtless, this passage can be read in various ways,

but the court is of the view that the appellant makes

too much of them. In f ac t , a record of prior convictions

was tendered. When he was 17 the appellant was convxcted

of indecent language, two charges of assaul t on police

and two charges of resisting arrest, and i t is recorded

that he was t o be of good behaviour and abstain from

intoxicating l iquor for 12 months, also not t o go in to

any hotel , "etcetera." The "etcetera" i s the way i t

is recorded and we do not know precisely what i t

covered.

He had subsequent convictions over the next nine

to ten years in respect of driving under the influence

of l iquor or driving with more than the prescribed

concentration of alcohol; and a t l e a s t i n two cases

he was i n breach of bonds upon which he was released,

although no action seems t o have been taken in respect

of them.'

In September 1972 he was convicted of unlawful assault, and the circumstances of that case were re fer red to by

counsel in the course of their submissions to the judge.

It appears several people had been throwing cans and other

missi les a t the accused or his car near a ho te l , and

the accused - tha t is the appellant - drove towards

them and h i t one or more of them.

The appellant had a relatively l imited educatlon,

leaving school when he was 14, and he told the pollce

he could not read. These are circumstances which

doubtless the court should take into account for whatever

value they have, but i t i s plain he did drink too much

and was irresponsible, to say the least , on many occasions,

f o r example, when driving the car under the influence of

l iquor , as w e l l a s having been gui l ty of assaul t on a t

l ea s t two occaions. The present case i s one i n which

he drove a car while, as he p u t i t , he was drunk,and

drove i t f o r some distance, albeit not on roads with

heavy t r a f f i c . The court therefore feels no er ror of

any s igni f icance , i f any a t a l l , was manifested in t he

passage from the judgment of the Chief Jus t ice which

we	have quoted.
The significant matters which at t racted the a t tent ion
of	the Chief Just ice and a l so a t t r ac t our at tent ion

are the use by the appellant of a r i f l e q u i t e

irresponsibly without attempting t o unload i t or to

aim i t c lear of any individual, and using i t i n a

confined space, firing i t from the hip in a way i n

which there was every possibil i ty of some serious

injury being done, and directing i t in the general

direction of the deceased and, of course, k i l l ing him.

H i s Honour the learned Chief Jus t ice i s perhaps

i n a bet ter posi t ion than this court , taking i t as a

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whole, t o understand the nature of this offence and

to appreciate the necessity for treating i t seriously

in t h i s Te r r l t o ry . He d i d take the view tha t i t was a

very serious event and a very serious offence. With

respect, using our own judgment on the matter, we must

also take the view t h i s was a serious and a very

irresponsible act . The fact that the appellant was

affected by liquor, perhaps to a marked degree, i s i n

the circumstances	a	more	aggravating factor than
otherwise.

Therefore, in all the circumstances, w e are of

the view the appeal should be dismissed, and we

order. I imagine the appellant i s in prison?

M R GILLOOLY: That i s correct.

FOX J:	Is there any need t o make any further order about the
sentence being carried out as if the appeal had not
taken place?

MR GILLOOLY: No, your Honour, not as far as I am aware. H e

w i l l continue to serve his sentence until i t runs out.

MUIRHEAD J: The sentence runs from the date of the appeal.

Is he t reated as	a	remand prisoner once the notice	of
appeal i s lodged?

M R AVERY: I would appreciate an order that the sentence runs

from the date he commenced serving i t , to remove doubt.

FOX J: Without intending t o create any precedent as to the

practice in these matters, the court w i l l i n t he

circumstances order that the sentence shall be

served as if this appeal had not been ins t i tu ted .

Is that acceptable to you?

M R GILLOOLY: Yes.

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MR. AVERI: Yes.

AT 3.25 PM THEMATTER WAS ADJOURNED

INDEFINITELY

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