Noble-Webster v Simms [2006] NTSC 52

PARTIES: NOBLE-WEBSTER, Tracey Elizabeth

v

SIMMS, Erica

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 9 of 2006 (20504613)

DELIVERED: 3 July 2006

HEARING DATES: 3 July 2006

JUDGMENT OF: RILEY J

APPEAL FROM: Court of Summary Jurisdiction sentence,
Mr H. Bradley CM, 27 February 2006

 

REPRESENTATION:

Counsel:
Appellant: C McAlister
Respondent: A Nobbs

Solicitors:
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: ril0611
Number of pages: 10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Noble-Webster v Simms [2006] NTSC 52
No JA 9 of 2006 (20504613)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:

NOBLE-WEBSTER, Tracey Elizabeth
Appellant

AND:

SIMMS, Erica
Respondent

CORAM: RILEY J

EX TEMPORE
REASONS FOR JUDGMENT

(Delivered 3 July 2006)

[1] On 10 February 2006 the appellant pleaded guilty to having unlawfully assaulted Lyndsay Craufurd with accompanying circumstances of aggravation, namely that Ms Craufurd suffered bodily harm and that she was threatened with a folding knife. The maximum penalty for the offence is imprisonment for five years. She was sentenced to imprisonment for a period of four months with the sentence to be suspended after she had served a period of imprisonment of 14 days. She now appeals against that sentence on the following grounds:

(1) The sentence imposed was manifestly excessive in the circumstances.

(2) The learned magistrate erred in placing insufficient weight on the personal circumstances of the appellant, particularly her youth, lack of relevant prior convictions and demonstrated rehabilitation.

(3) The learned magistrate erred in the view that only an actual term of imprisonment would serve the purpose of general deterrence and placed too much weight on general deterrence.

(4) The learned magistrate erred in considering home detention inappropriate to avoid what he wrongly perceived to be the impact upon the appellant’s child.

[2] The principal submission put on behalf of the appellant was that the sentence imposed was manifestly excessive in the circumstances and the remaining grounds were argued in support of that submission.

The offending

[3] The offending occurred on 16 December 2004. At about 11.30 pm on that day the appellant accompanied her friend, Ms Sikyr, and two other women to an address in Emery Avenue, Gray. The appellant was intoxicated by alcohol and, possibly, amphetamines. She sat in the car and observed Ms Sikyr and the victim, Ms Craufurd, engage in a physical fight on the road. At some point Ms Sikyr returned to the car and handed the appellant a knife with a six centimetre blade. The appellant then walked to where the victim was located. The victim was at that time bleeding from the face. The learned sentencing magistrate was informed that the appellant approached her and was swearing at her and then the appellant’s “subsequent actions caused two shallow stab wounds to the victim”. There was no adequate explanation as to how that occurred, however the victim suffered one injury to her hip and the other to the middle of her back. She was taken to hospital and required a total of four stitches. After attacking her victim the appellant returned to the vehicle and the group drove away. The appellant disposed of the knife by throwing it out of the window of the moving vehicle.

[4] On 14 March 2005 the appellant participated in an electronically recorded interview. In the course of the interview she was asked if she was angry when she stabbed the victim and she replied: “Well she was fucking my man”. When asked why she had stabbed the victim she said: “I don’t know”.

[5] By way of explanation of his client’s conduct, counsel who appeared on behalf of the appellant in the Court of Summary Jurisdiction advised the court that the victim had a sexual relationship with a man whom the appellant regarded as her partner. It was also asserted that the same man had a sexual relationship with Ms Sikyr. There had been some tension between the appellant and the victim.

[6] The court was informed that the appellant was aged 19 years. She lived with her father and, at the time of sentencing, had a child aged six months. He is the child of the man she regarded as her ex-partner. She was then in receipt of Centrelink benefits and she was caring for her child. His Honour referred counsel to the decision of Kearney J in Mawson v Nayda (1995) 5 NTLR 56. He sought information regarding the circumstances of the child. The court was told that in the event of the appellant being imprisoned the child would be cared for by her cousin. It was put to the learned sentencing magistrate that the child would fret when his mother was not around. It was not submitted that the child would not be able to accompany his mother if she was imprisoned.

[7] The court was asked to consider a home detention order and a relevant report was requested. The report revealed the appellant as suitable for a home detention order.

The personal circumstances of the appellant

[8] It was submitted on behalf of the appellant that the learned sentencing magistrate placed insufficient weight on the personal circumstances of the appellant, in particular her youth, lack of relevant prior convictions and her “demonstrated rehabilitation”.

[9] It was not submitted that his Honour failed to take those matters into account at all but, rather, that he failed to accord them sufficient weight. The fact that his Honour did take the matters into account is apparent from his sentencing remarks. In relation to her youth, her status as a single mother, her lack of prior convictions and the absence of any further offending between the date of the offence and the date of sentence, his Honour observed: “All of those factors operate very considerably on the defendant’s behalf”.

[10] In addition it was submitted that the appellant had demonstrated rehabilitation in that she had not reoffended in the period from the date of the offence, that she had not been drinking alcohol and had intentions to obtain employment once her baby reached a suitable age. Whilst these matters reflect the fact that the appellant had not been in trouble during the relevant period (a matter taken into account by his Honour) and are positive matters they do not suggest any conscious effort at rehabilitation on the part of the appellant. They merely reflect her existing living circumstances. Those are matters which were taken into account by the learned sentencing magistrate.

[11] The matters put under this ground were submitted in support of the ultimate submission that the sentence was manifestly excessive.

General deterrence

[12] It was submitted on behalf of the appellant that the learned magistrate erred in forming the view that “only an actual period of imprisonment” would serve the purposes of general deterrence. It was further submitted that he placed too much weight on general deterrence.

[13] Reference to the sentencing remarks does not support the submission made on behalf of the appellant. The learned magistrate clearly formed the view that a sentence of actual imprisonment was appropriate in the circumstances but did not express the view that is attributed to him, namely that only an actual period of imprisonment would serve the purpose of general deterrence. The sentence imposed was a sentence he regarded as appropriate in all of the circumstances including the need for general deterrence.

[14] General deterrence was a factor to be taken into account in determining an appropriate sentence. As the respondent pointed out, the offending was clearly serious given that the appellant was armed with an offensive weapon, namely a six centimetre bladed knife and used it to attack her victim. She carried that knife with her when she went to confront the victim. She did so in circumstances where the victim was already suffering injuries as a result of the altercation with Ms Sikyr. The appellant, Ms Sikyr and others had purposely sought out the victim and, following the attack upon her, the victim suffered bodily harm which included penetrating wounds that required stitches.

[15] His Honour took into account the fact that this type of offence is prevalent in Darwin, observing:

“I can’t put behind me the seriousness of the offence and the increasing tendency on Darwin streets for violence to form part of young people’s lives.”

There is no challenge to the accuracy of that observation made by a very experienced magistrate.

Home detention

[16] At the request of counsel for the appellant his Honour ordered a home detention report which found the appellant suitable for that disposition. However his Honour declined to make the order in all of the circumstances. The appellant now complains that he erred in so doing. The submission was made that the learned sentencing magistrate regarded home detention as “inappropriate to avoid what he wrongly perceived to be the impact upon the appellant’s child”. Whilst it is true that his Honour made observations regarding the desirability of a young child being brought up in circumstances where the constraints of a home detention order rest upon the mother, the passage relied upon from the sentencing remarks does not support the contention of the appellant. Indeed his Honour went on to observe: “So there are some pluses and minuses in relation to a home detention sentence. I have taken all those issues into account”. He then proceeded to impose the sentence the subject of the appeal. His Honour took into account all of the matters he had discussed in determining an appropriate sentence. He did not limit himself as submitted on behalf of the appellant.

[17] In this case it was not submitted that a term of imprisonment would impose a relevant hardship upon the appellant because she would be removed from the care of her child. Whether or not there would be a requirement that mother and child be separated was not addressed.

[18] The hardship caused to an offender’s family is not normally a circumstance which the sentencer must take into account. However there are exceptions to this policy including where the particular circumstances of the family are such that the degree of hardship is exceptional and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of imprisonment. Such circumstances include where children may be deprived of parental care by virtue of imprisonment: R v Nagas (1995) 5 NTLR 45. In this case it was not suggested that mother and child would necessarily be separated. In Mawson v Nayda (supra) Kearney J observed that for the exception to the usual rule to be established it is necessary for the defendant to produce cogent evidence to the sentencing court to establish that imprisonment would impose exceptional hardship upon a family or deprive a child or children of parental care. No such evidence was produced at the sentencing hearing and no submission in relation to exceptional hardship was made on behalf of the appellant at that time. I raised the matter with counsel on appeal and was informed that it was not an issue before this Court.

Manifest excess

[19] The principal ground of appeal argued on behalf of the appellant was that the sentence was, in all the circumstances, manifestly excessive. The general principles applicable to an appeal against sentence on the ground that it is manifestly excessive are well settled. It is fundamental that the exercise of the sentencing discretion is not to be disturbed on appeal unless error is shown. The presumption is that there is no error. An appellate court does not interfere with a sentence imposed merely because it is of the view that it would have imposed a lesser sentence. It interferes only if it is shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, although the sentence itself may be so excessive as to manifest such an error. In relying upon this ground it is incumbent upon the applicant to show that the sentence is not just excessive but manifestly so. The sentence must be clearly and obviously and not just arguably excessive: see Liddy v R [2005] NTCCA 4 at [12].

[20] Each of the grounds discussed above was presented in support of the ultimate submission that the sentence of imprisonment was manifestly excessive. It was submitted that a 4-month term of imprisonment suspended after 14 days was manifestly excessive. In the course of submissions it was made clear that there was no challenge to the term of imprisonment of four months, however it was contended that the sentence should have been wholly suspended.

[21] The offending on this occasion was serious for the reasons that I have spelled out. It has not been suggested that the penalty imposed was out of line with penalties customarily imposed for aggravated assaults of this kind. The learned sentencing magistrate took into account the seriousness of the offending and also the personal circumstances of the offender. In my view it cannot be said that error occurred. The sentence is within the available range and this Court should only interfere if convinced the sentence was manifestly excessive or some identified error occurred in the sentencing process. I see no error. The appeal must be dismissed.
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