PARTIES: STEVEN THOMAS PEEL
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO: 59/03 (20203976)
DELIVERED: 29 September 2004
HEARING DATES: 24 September 2004
JUDGMENT OF: THOMAS J
Appellant: I Read
Respondent: M Carey
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: tho200413
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
Peel v Perry  NTSC 52
No. 59/03 (20203976)
STEVEN THOMAS PEEL
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 29 September 2004)
 This is an appeal against conviction and sentence imposed in the Court of Summary Jurisdiction on 8 April 2003. The appeal was heard on 24 September 2004. At the conclusion of the hearing on appeal, I dismissed the appeal against conviction and upheld the appeal against sentence. I stated I would deliver reasons for decision on 29 September, being the date to which this matter has been adjourned. The following are my reasons.
 On 8 April 2004 the appellant was convicted and sentenced on two charges that on 14 March 2002 at Darwin in the Northern Territory of Australia,
1. being a person against whom a restraining order issued in accordance with the Domestic Violence Act was in force and having been served with a copy of that order, failed to comply with the terms of the order.
Contrary to s 10 of the Domestic Violence Act.
2. unlawfully assaulted Sarah MacDonald: AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:
(i) that the said Sarah MacDonald suffered bodily harm.
(ii) that the said Sarah MacDonald was a female and the said Steven Peel was a male.
Contrary to s 188(2) of the Criminal Code.
 The appellant had previously entered a plea of guilty to both charges on 19 February 2003 and the matters had been adjourned for submission on the plea.
 On 8 April 2003, the prosecution repeated the Crown facts which were not in dispute and are as follows (tp 4-5):
“… on Thursday 21 February 2002 the defendant was served with a domestic violence order by police at the Berrimah Police Centre on the complainant, Sarah Beth McDonald’s (sic) behalf. And on Friday 22 February 2002 the order was confirmed by the Darwin Court of Summary Jurisdiction.
The conditions were that he was not to enter, or remain on, or near the premises of Unit 6, 148 Mitchell Street, Larrakeyah; that he was not to assault, cause or threaten to cause damage to property in the possession of Sarah McDonald (sic); he was not to act in a provocative or offensive manner towards Sarah McDonald; and he was not to approach or contact directly or indirectly Sarah McDonald. This order was in force for 12 months.
On Thursday 14 March 2002 at about 3 am the defendant attended at Unit 6, 148 Mitchell Street after the complainant in this matter, Sarah McDonald, contacted him via telephone and asked him to come home. The defendant attended at Unit 6, 148 Mitchell Street, Larrakeyah, in an intoxicated state and spoke to the complainant. And while in the residence the defendant said to the complainant: ‘You ring police on me, you dog. How dare you ring police.’
The defendant then began to play his record of interview tape on a tape deck which was conducted with police on 12 March 2002, but he further stated to the complainant: ‘How can I trust you when you do this to me. I want to cut your head off.’ The defendant then grabbed the complainant by the hair and pushed her head with force into the tiled floor of the main bedroom of the unit. The force of the throw caused the complainant to see white flashes from the impact.
The defendant grasped the complainant’s neck, which caused her to have difficulty breathing, and bit her once on her left upper shoulder blade. The complainant pleaded with the defendant and said: ‘Just stop it. Give me a chance. We can have a fresh start. I will not make the mistake of calling the cops again.’
The defendant then grabbed the complainant by the hair and said: ‘Stop yelling. Stop yelling.’ The defendant then further pushed the complainant with force away from him …
… causing her to fall on the floor. Further verbal abuse continued until about 10 am. The complainant then rang police a short time later to which they attended. The defendant left the residence prior to police arrival. The complainant was conveyed to a temporary resident’s refuge and later conveyed to hospital for treatment for bruising and swelling to her face and left shoulder blade.
The defendant was located at 3 pm that day and was arrested and conveyed to the Berrimah Police Centre for a record of interview. When asked if he assaulted the complainant, the defendant stated; ‘The allegations are false. She’s a junkie, ex-whore, and there is no story to put forward. I can’t explain anything on her. Bite marks. Fuck me. I’m biting her now. Take a junkie’s word.’ And: ‘I was at court about 10’ish. Before then I’ve got no idea. I’ve got nothing to say to you.’ He further said: ‘She made allegations. I’ve got nothing to tell.’ The defendant was later charged and bail was refused.
The complainant received one large bit mark to her left shoulder, swelling to the right side of her face and a large scratch on the left side of her cheek. The victim had a further scratch on her hand. She received treatment for these injuries at hospital. At no time did the defendant have permission to assault her. And the defendant was in breach of he domestic violence order.”
 The appellant was sentenced to a total period of eight months imprisonment to be suspended after three months and the balance suspended. The operational period under s 40(6) of the Sentencing Act was specified to be 18 months from the date of sentence.
 During the course of the hearing on the plea of guilty the Crown tendered the Domestic Violence Order (Exhibit P1) a record of prior convictions (Exhibit P2), a Victim Impact Statement (Exhibit P3). The defence tendered a written reference from Ms Pat Raymond (Exhibit D1). Following the tender of these documents, Mr Barlow, counsel for Mr Peel in the Court of Summary Jurisdiction, made submissions on the plea of guilty.
 On behalf of the appellant, Mr Read submits that on the face of it Mr Peel was aware of what he was doing at the time and appreciated the consequences. The basis of the appeal against conviction is set out in the affidavit of Gemma Hinds sworn 19 August 2004 and Steven Peel sworn 19 August 2004.
 The essence of the reasons set out in these affidavits is that the appellant was, at the time he entered a plea of guilty, under a lot of pressure in his relationship with his de facto wife, Gemma Hinds. Ms Hinds was pregnant with his child. They were both unemployed and suffering financial hardship. Ms Hinds was suffering osteomalytis. She was being treated for cervical cancer and was very concerned that if Mr Peel went to gaol there would be no one to look after her and their baby.
 The appellant stated he was not guilty and regretted having entered a plea of guilty. Ms Hinds deposed to the fact that she had encouraged Mr Peel to plead guilty so the matter could be dealt with and finished. It had been her impression, following discussions with Mr Peel’s lawyer, that Mr Peel would not be sentenced to a gaol term.
 I note that annexed to the affidavit of Mr Peel sworn 19 August 2004 being annexure “A”, is a document dated 19 February 2003 which was signed by Mr Peel and given to Mr Barlow who was his legal representative in the Court of Summary Jurisdiction. This document reads as follows:
“I, Stephen (sic) Peel, wish to plead guilty to Breach Domestic Violence Order and assaulting Sarah Beth MacDonald on 14 March 2002.
I agree with the précis which has been read to me. It is true.
I understand I face a risk of going to prison.
I make this decision of my own free will.
Signed dated 19.2.03”
 This Court does have the power to set aside a conviction. In Maxwell v R (1996) 184 CLR 501, Toohey J at 522:
“A defective plea of guilty may be withdrawn and a conviction set aside on various grounds. This is part of the inherent jurisdiction of courts to see that justice is done and some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the court, the accused lacked full understanding of the plea or there was some other mitigating factor. To this end the court may refuse to accept a guilty plea or direct that a not guilty plea be entered.”
 The Court will entertain an appeal against conviction if it appears that:
(a) the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it.
(b) upon the admitted facts he could not in law have been convicted of the offence charged.
(c) the plea was induced by intimidation, improper inducement or fraud.
See “Crime” – David Ross, par 16.1270.
 On the evidence before this Court, the appellant understood the nature of the charge and intended to plead guilty to it. The admitted facts establish two offences had been proved and that the appellant could in law be convicted of such offences. There is no suggestion the plea was induced by intimidation, improper inducement or fraud.
 The second aspect of the appellant’s appeal against sentence concerns an application to admit fresh evidence. The fresh evidence it is sought to present relates to an alibi the appellant seeks to establish.
 The appellant in this matter was arrested for the offence at approximately 3.00 pm on 14 March 2002, being some hours after the alleged offences occurred. A copy of a Record of Interview which commenced at 4.39 pm on 14 March 2002 is annexed to an affidavit of Ian Leonard Read sworn 16 August 2004. In this Record of Interview, Mr Peel stated he did not commit the offences. He stated that he had arrived at the tenancy court at 10.15 am having walked from Stuart Park where he had been with his friend Greg Bruce and that he had stayed with Doug Bruce at Somerville Gardens Parap.
 The further evidence Mr Peel seeks to present, is contained in the affidavit of Cecil James Damaso sworn 5 March 2004. In this affidavit, Mr Damaso states that in March 2002 the appellant was living with him at his address 19/30 Parap Road, Parap. Mr Damaso deposed to the fact that Mr Peel used to sleep through till about 9.00 o’clock. Mr Damaso could not recall an occasion when the appellant was not at home.
 This evidence does not accord with the alibi raised by Mr Peel in his Record of Interview that he had stayed with Doug Bruce at Somerville Gardens, Parap.
 There is an affidavit sworn by Ronald Edwin Lawford, legal practitioner, sworn 12 March 2004. Mr Lawford states he became aware of the presence of Mr Peel at the Commissioner of Tenancies at 11.00 am on 14 March 2002.
 This statement is not evidence of an alibi for Mr Peel’s whereabouts between 3.00 am and 10.00 am on 14 March 2002.
 The third piece of evidence that the appellant seeks to submit as fresh evidence, is contained in a statement made by Douglas Maxwell Bruce on 2 April 2002, which is annexed to the affidavit of Ian Leonard Read sworn 16 August 2004. In this statement Mr Bruce states that Mr Peel was at his house at 11 Somerville Gardens between the hours of 11.30 am and 2.00 pm on Thursday 14 March 2002. This evidence does not assist in establishing an alibi.
 Mr Read has sworn an affidavit dated 23 September 2004. Annexed to this affidavit is a statement by Mr Charles Ormond. In this statement Mr Ormond states that he knew Mr Peel well and used to drive him around quite a bit. He was asked to recall a time in March 2002. He mentions Mr Peel’s association with Ms MacDonald. Mr Ormond says Mr Peel used to stay with his uncle in Parap and at a flat in Mitchell Street. He remembers Mr Peel asked him to take him to court about his rent. Mr Ormond says he recollects he went to the address at Parap at about 7.30 to 8.00 am to tell Mr Peel he would not be able to take him to court. Mr Ormond concludes saying he is in Adelaide undergoing medical tests and will be returning to Darwin in about a month.
 This evidence is somewhat vague and does not identify a date in March 2002. It is not cogent evidence.
 The totality of evidence referred to does not amount to an alibi in respect of the allegations of assault occurring between 3.00 am and 10.00 am on 14 March 2004.
 Mr Read, on behalf of the appellant, submits that the point of this evidence is that if Mr Peel is granted a re-trial then this evidence would support Mr Peel’s evidence and rebut any prosecution submission that his assertion he was not there had no support.
 I do not accept this submission. I agree with the submission made by Mr Carey, counsel who represented the respondent, that the fresh evidence would not provide an alibi, so there would be no point in setting aside the conviction on this basis.
 In addition to this, the evidence must be reasonably capable of belief – see Mickelberg v R (1989) 167 CLR 259 at 301-302. The appellant has not established this. The alibi now suggested does not accord with the alibi he asserted in his Record of Interview.
 Finally, there is no suggestion that this evidence was not available at the time of the hearing of this matter in the Court of Summary Jurisdiction or that with reasonable diligence, could have been available (Ratten v The Queen (1974) 131 CLR 510 at 516-517).
 For these reasons I concluded that the appeal against conviction could not succeed and the conviction should stand.
 Following the submission relating to conviction, Mr Read on behalf of the appellant, also made submissions to the effect the sentence was manifestly excessive in that the learned stipendiary magistrate had given undue weight to certain factors and insufficient weight to matters in mitigation of the offences.
 Mr Read identified a number of matters that he asserted amounted to error by the learned stipendiary magistrate, in the course of the reasons for sentence.
 I do not propose to address these matters.
 Mr Carey on behalf of the respondent conceded that the appeal against sentence must succeed. Mr Carey referred to s 106B(7) of the Sentencing Act which provides as follows:
“(7) A court shall not take into account a written victim impact statement unless it has been signed.”
 The Victim Impact Statement tendered (Exhibit P3) has not been signed. The learned stipendiary magistrate obviously relied on certain matters within the Victim Impact Statement and quoted from the impact statement in the course of reasons for sentence.
 In view of the provisions of s 106B(7) of the Sentencing Act, this was an error such that the appeal against sentence must succeed.
 The matter was adjourned before this Court for mention on 29 September 2004. This was to enable Mr Read, counsel for the appellant, to seek instructions from the appellant as to whether he seeks to have the matter referred back to the learned stipendiary magistrate to impose sentence or whether the appellant should be re-sentenced in this Court.