O’Brien v Hales [2004] NTSC 67

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O’Brien v Hales [2004] NTSC 67






FILE NO: JA 161/03 (20215960)

DELIVERED: 16 December 2004

HEARING DATES: 18 August, 5 November & 19 November 2004




Appellant: S Musk and S Barlow
Respondent: N Browne

Appellant: North Australian Aboriginal Legal Aid Service Inc
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: tho200415
Number of pages: 6


O’Brien v Hales [2004] NTSC 67
No. JA 161/03 (20215960)







(Delivered 16 December 2004)

[1] This is an appeal from a sentence imposed in the Darwin Court of Summary Jurisdiction on 21 October 2003.
[2] The appellant, Matthew O’Brien, on that date entered a plea of guilty on complaint to a charge of criminal damage contrary to s 251 of the Criminal Code.
[3] The facts in support of the charge are as follows (tp 2-5):
“On Sunday 27 October 2002, between the hours of 11:30 pm and 12 am, the defendant attended a residence , 6 Cardo Court, Ludmilla.
And he was asked to leave.
A short time later, another resident of 6 Cardo Court was approached by the defendant at the corner of Cardo Court and Balyun Street. The defendant and complainant had a short conversation. The defendant then walked the driveway of 6 Cardo Court, where a blue Nissan hatchback was parked. The defendant approached this vehicle and using a brick - - - smashed all the vehicles windows and the two rear taillights. The defendant also caused panel damage to the rear of the vehicle, leaving it scratched and dented.
The defendant was later arrested by police and conveyed to Berrimah Watchhouse where he was placed on section 137 of the Police Administration Act, due to his level of intoxication. At 7:55 am on Monday 28 October 2002, the defendant participated in an electronic record of interview, where he denied the allegation made against him.
When asked why he smashed the windows and taillights of the vehicle, the defendant replied: ‘I did not smash any vehicle’.
At no time was the defendant given permission to damage the blue Nissan hatchback.
Damage to the vehicle has been investigated by the Territory Insurance Office. Damage to the vehicle is $4977.97, as alleged. Restitution is sought by TIO and compensation – restitution for $300, which was paid for the policy excess is sought by the complainant.”
[4] The appellant was sentenced on 21 October 2003 to imprisonment for three months and 16 days. In imposing this sentence the learned stipendiary magistrate had allowed for discount for the plea of guilty in the order of 10 per cent and reduced the sentence from four months to three months and 16 days. No orders were made for compensation.
[5] The appellant lodged a Notice of Appeal setting out the following grounds of appeal:
“1. That the sentence is manifestly excessive.
2. That the learned Magistrate failed to properly consider whether to fully or partially suspend the sentence.
3. That the learned Magistrate failed to properly consider alternatives to imprisonment.
4. That the learned Magistrate gave insufficient weight to rehabilitation.
5. That the learned Magistrate gave insufficient weight to the personal circumstances of the defendant.
6. That the learned Magistrate gave insufficient weight to the mitigating circumstances of the offence.”
[6] At the outset of the hearing of this appeal, it was conceded by counsel appearing for the respondent that the sentence imposed by the learned magistrate was manifestly excessive in all the circumstances.
[7] It was pointed out by counsel for the respondent that the prosecutor in the Court of Summary Jurisdiction had made a submission to the court that this matter could be dealt with by imposition of a community service order.
[8] I will deal with the first ground of appeal:
1. That the sentence is manifestly excessive
[9] With respect to an appeal on the ground that the sentence was manifestly excessive, it is for the appellant to show that the nature of the sentence itself affords convincing evidence that in some way the exercise of the sentencing discretion was unsound. To do so the appellant must show that the sentence was clearly and obviously, and not just arguably, excessive (Cranssen v The King (1936) 55 CLR 509 at 520).
[10] The appellant does not have any prior convictions for criminal damage. A record of convictions was tendered in the Court of Summary Jurisdiction (Exhibit 1).
[11] On 22 May 2003 he was convicted on two separate failures to comply with a restraining order. Fines were imposed. On 20 May 2003 the appellant was convicted of the offence of possess cannabis in a public place and a fine imposed. I note that none of those matters are in fact prior convictions for the purpose of sentencing. They are subsequent matters which can be taken into account. On 13 July 1995, Mr O’Brien was convicted of an offence of attempting to prevent the course of justice. He was released on a Good Behaviour Bond.
[12] A victim impact statement was prepared and tendered before the Court of Summary Jurisdiction (Exhibit 2). Mr John Delahay suffered emotional effects in that he was scared to visit his friends at the house where the incident occurred and scared to leave his car parked anywhere nearby. Mrs Sheila Delahay noted that she had been caused great inconvenience as the car was off the road for two weeks. She had no form of transport to attend meetings she was required to attend. She incurred taxi fares in this time as she was unable to collect her daughter from University or her son from his evening shift at work. In addition, Mr and Mrs Delahay had to pay the $300 insurance excess.
[13] The appellant is now 34 years of age. He was 32 years of age at the time of the commission of this offence. Mr O’Brien and his wife are separated, they have three young children. In the 12 months to two years prior to the commission of the offence the appellant was largely the sole carer for his children and his wife. There had been considerable stresses in the relationship with his wife. The appellant’s wife had suffered acute post natal difficulties and manic depression resulting in her admission to Cowdy Ward for considerable periods of time, both as a compulsory and a non-compulsory patient. During this period the appellant himself also suffered from depression and was referred to a psychiatrist.
[14] It was put in the course of submissions, on behalf of the appellant and not disputed by the respondent, that a week prior to the commission of this offence a person in the house in front of which this car was parked had assaulted the appellant. The appellant had gone to this address on the date of this offence to speak to the occupant of the house. At a later time his assailant had explained to him that he was having difficulties at that time and just snapped. The appellant took out his feeling of frustration and aggression by damaging the motor vehicle outside the house. The appellant had no right to vent his anger in this way or to exercise retribution for a perceived wrong done to him. The damage done was of a significant value. The consequence of the offence was distress, inconvenience and expense to the owners of the vehicle.
[15] Also tendered at the hearing before the Court of Summary Jurisdiction was a reference from the Reverend Stephen J. Orme, referring to Mr O'Brien’s difficult family situation. Rev Orme describes him as having “a remarkable degree of resistance and commitment towards his family”.
[16] Prior to imposing sentence, the learned stipendiary magistrate had requested a Home Detention Assessment. Mr O'Brien was assessed as unsuitable for home detention as there was no suitable accommodation available.
[17] I accept the submissions made by Ms Musk, counsel for the appellant, that in the circumstances of the offence and the offender, the sentence of three months and 16 days imprisonment is manifestly excessive.
[18] Accordingly, I set aside the sentence imposed by the learned stipendiary magistrate and re-sentence the appellant.
[19] I would have dealt with the matter by way of an order for community service work had the appellant been assessed as suitable for community service work. However, the Department of Correctional Services has not been able to locate the appellant to assess his suitability and have exhausted all their inquiries as to his whereabouts. This means the option of a Community Service Order is not open.
[20] I propose to hear further from counsel for the appellant and the respondent as to the appropriate disposition including the issue of compensation to the owner of the vehicle.