Horne v Carlon [2007] NTSC 46






FILE NO: JA87/04 (20407705)

DELIVERED: 25 September 2007

HEARING DATES: 26 July 2007




Appellant: P Elliott
Respondent: R Coates

Appellant: Withnalls
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: tho200704
Number of pages: 12






Horne v Carlon [2007] NTSC 46
No. JA 87/04 (20407705)







(Delivered 25 September 2007)

[1] On 25 May 2007 the Court of Appeal of the Northern Territory confirmed a conviction upon the appellant for an offence of assault. The appellant was convicted in the Court of Summary Jurisdiction following a plea of not guilty to the following charge:

“On the 4th February 2004 at Darwin in the Northern Territory of Australia.

1. unlawfully assaulted Vincenzina ZANGARI:

AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:

(i) That the said Vincenzina ZANGARI suffered bodily harm.

(ii) That the said Vincenzina ZANGARI was a female and the said Darryl Colin HORNE was a male.
Contrary to Section 188(2) of the Criminal Code.”

[2] Martin CJ, with whom Angel and Mildren JJ agreed, set out the evidence relevant to the assault as follows:

“Assault - Evidence

[3] The complainant gave evidence that in the early hours of Wednesday 4 February 2004 at the premises from which the escort agency operated, she and the appellant had an argument. According to the complainant, while in the kitchen the appellant “shoved” a red kitchen tool under her chin without touching her and told her to shut her “conniving, scheming mouth because he wasn’t going to tolerate any bullshit”. The complainant described how she walked to the bathroom and the appellant followed her. The following passages from the evidence of the complainant convey the essence of her version as to the circumstances of the assault:

“Darryl’s followed me [into the bathroom] and grabbed me hard by the arms and he spun me around. …
… Darryl came in behind me and grabbed my shoulders from behind and as he grabbed my shoulders from behind we kinda went forward and spun around and as I spun around, Darryl let me go and I fell into the corner of the bathroom in between the toilet and the basin.

… That night I had a low cut red dress, red bra. From the corner Darryl grabbed me by my front of my dress which caused my dress and my bra to rip. He spun me around again and let me go back – I fell into the wall.

… Back into the same wall that I fell the first time, in the corner and I remember hitting the wall and as I was getting my head back up I noticed either had his arm up here to slap or punch me in the mouth.

… He slapped me in the mouth and my teeth began to bleed and my mouth began to bleed. I began to cry. Darryl told me to pull myself together and at the same time I could hear the girls were returning or people were returning and Darryl said he didn’t want them to have any doubt and confusion about us. So I’ve walked out of the bathroom at that point and I’ve gone back into the office where I’d -

… my mouth was slow [sore] and my teeth were loose, they were bleeding, top and bottom were loose and I was bleeding.

… Well, I walked back to the office and I rinsed my mouth out with saltwater and the girls came in – I sat down at the desk and the girls come in and [Ms S] came in and sat down at the desk and I showed her what Darryl had done to me. Darryl pretended nothing had happened and I just wanted to avoid it all and I just went to bed and went to sleep.”

[4] The complainant gave evidence that when she got up at about lunchtime on Wednesday 4 February, her mouth was really sore and her teeth were loose. She was not happy. The appellant told her off for not smiling. According to the complainant, during the afternoon the appellant told her that she could work for “us” and she did not know who he was referring to because she believed that the business was hers. After the appellant left, the complainant gathered a few things together and left the premises in a taxi. After arriving at the home of a friend, she made a complaint of assault to the police by telephone and contacted a women’s shelter where she spent the night. The complainant said that as soon as she reached the women’s shelter she rang a named person at the Licensing Commission, advised that person that she had fled the office and why and was given instructions to have the phones disconnected. The complainant did not return to the business.

[5] On 4 February 2004 the complainant also saw a medical practitioner. Either on 4 February or two days later she consulted a dental surgeon. Reports from those persons were tendered and neither gave oral evidence.
[6] The medical practitioner found that the complainant had slightly loose front teeth, both top and bottom on the left, and observed a number of bruises. The practitioner’s report concludes:

“Overall, [the complainant’s] injuries were consistent with a recent physical assault.”

[7] The dental surgeon found that five teeth “showed signs of displacement, were extruded out of their sockets and both mobile and very sensitive to touch”. Advanced periodontal disease existed and was described as “critical” to the extent of the damage inflicted. In the view of the dental surgeon, a blow of “medium to light force” would have been sufficient to cause the damage.

[8] Significantly, the dental surgeon reported as follows:

“… Her injuries were consistent with her account of what happened.
She alleged she had been hit in the left anterior facial area. There was evidence of this in the examination of the hard tissues involved. There had been displacement of teeth, mobility of teeth, and extreme tenderness to pressure as exhibited by the teeth indicated on the chart previously provided with her treatment record.

At the time of examination there were no soft tissue lacerations. …”

[9] Three women who worked as prostitutes gave evidence. One of the women who was under the age of 18 (“Ms K”) gave evidence that she saw the appellant strike the complainant, but the learned Magistrate did not accept that evidence. It appears that his Honour found that Ms K was upstairs at the time the blow was struck. Ms K gave evidence that after the blow was struck she observed that the complainant had a swollen lip.

[10] Ms S gave evidence that she and Ms K were in an upstairs room when she heard an argument between the complainant and the appellant who were downstairs. Ms S described hearing a lot of “yelling and screaming, more so Darryl’s voice and a big loud thump.” Subsequently she observed that the complainant “had a bit of a bruised lip and a bit of a cut on her shoulder.” Ms S later described the injury to the complainant’s lip as a “fat lip”. She also noticed that the complainant’s “singletty top or dress” was ripped.

[11] Ms C said that she had been out on a job. When she left the office, the complainant was wearing a red dress. When she returned the complainant was in a nightie and seemed a little distressed. She observed that the complainant had a “little bit of a puffy lip”. Ms C identified the dress which was tendered as an exhibit. It was not put to Ms C that she was wrong about the red dress.

[12] The complainant’s bra and dress were examined by a forensic scientist. The report of the forensic scientist was tendered and stated as follows:

“The bra was ripped apart at the front. There was also evidence of stretching to the neckline at the front of the dress. The damaged areas on the items aligned and in my opinion occurred at the same time”.

[13] DNA evidence provided in the report of the forensic scientist supported contact between the appellant and the front of the dress and the bra. However, given that the appellant and complainant were living in the same premises and had been sexually intimate, in my view that evidence is of little, if any, significance and I have not had regard to it.

[14] The appellant was interviewed by police on 1 April 2004. The version he advanced in that interview was consistent with evidence he gave before the Magistrate. In substance, the appellant said that the complainant followed him into the toilet and started screaming at him. She kept screaming at him and after he had finished washing his hands he turned around, grabbed her dress and told her crudely to wake up. The appellant denied there was any shaking or physical force. In particular he denied slapping or punching the complainant. The appellant also denied damaging the dress or bra and, when shown the red dress during the interview, positively maintained that the complainant was not wearing that dress on the occasion of the argument.’

and at [30]:

“In my opinion the evidence in its entirety well justified the Magistrate’s finding that the totality of the circumstantial evidence corroborated the complainant’s evidence that she was struck in the mouth. There was ample evidence to support the finding of the Magistrate and there is no basis upon which this Court could properly interfere. Having read the evidence, I do not experience a doubt about the finding of guilt. In my opinion, it was the appropriate finding.”

[3] The Notice of Appeal to the Court of Appeal stated that in the alternative to the appeal against conviction there was an appeal against sentence as being manifestly excessive.

[4] The Court of Appeal set out reasons why that Court could not deal with the appeal against sentence. Essentially, this was because the appeal from the decision of the magistrate to a single judge of this Court did not include an appeal against sentence. Accordingly, there was no judgment of the single judge on the question of sentence. Section 51 of the Supreme Court Act provides as follows:

“(1) Where the jurisdiction of the Court in a proceeding or a part of a proceeding was exercised otherwise than by the Full Court, a party to that proceeding may, subject to this Act, appeal to the Court from a judgment given in that proceeding or part, as the case may be.

(2) The Court, when exercising its appellate jurisdiction under subsection (1), may be known as the Court of Appeal of the Northern Territory of Australia.”

[5] As the judgment, which was the subject of appeal, was limited to conviction there was no judgment on the question of sentence against which the appellant was entitled to appeal.

[6] Accordingly, the Court of Appeal remitted the matter back before the judge who heard the appeal at first instance.

[7] When the matter came back before this Court, Mr Coates, counsel for the respondent, consented to Mr Elliott, on behalf of the appellant, adding a further ground of appeal against sentence.

[8] Leave to add the ground of appeal against sentence was granted and submissions were heard on the question of sentence for the offence of assault.

[9] On 25 October 2004, the Court of Summary Jurisdiction imposed a sentence of one month imprisonment for the offence of assault. Before remitting the matter to this Court for sentence, the Court of Appeal indicated that the sentenced imposed by the learned stipendiary magistrate should be set aside for the reasons as set out in [117]:

“As to the sentence for assault, counsel for the appellant identified a number of occasions on which the Magistrate spoke of the appellant punching the complainant. Those occasions included remarks directly related to the exercise of the sentencing discretion. In referring to the appellant as having punched the complainant, the Magistrate was in error. It was plain from the evidence of the complainant that the appellant slapped her in the mouth. In my opinion the error of fact made by the Magistrate was significant and should result in the sentence being set aside. However, for the reasons that follow, in my view this Court is unable to entertain the appeal against sentence.”

[10] Accordingly, I formally order that the sentence of the learned stipendiary magistrate for the offence of assault be set aside.

[11] The effect of this is that this Court is sentencing the appellant afresh rather than making a decision as to whether the magistrate’s sentencing discretion miscarried.

[12] I note that the offence itself occurred some three and a half years ago. The respondent is not responsible for the delay. Initially, the appellant changed his legal advisors which led to a delay in the resolution of the hearing.

[13] Mr Elliott, on behalf of the appellant, submits that the objective circumstances of the offence do not call for a term of actual imprisonment and that the provisions of s 78BA of the Sentencing Act would be satisfied by an order of imprisonment to the rising of the Court backdated to the date of sentence in the Court of Summary Jurisdiction, when the appellant did spend a period of time in custody.

[14] Mr Coates, on behalf of the respondent, maintains that the sentence of imprisonment of one month is the appropriate sentence in this matter.

[15] I take into account the following matters:

• The delays which have occurred in bringing the matter to finality are not the responsibility of the respondent. It has not been suggested that there should be any mitigation of sentence on the basis of the delay. However, the appeal process itself takes a period of time. The decision of the Court of Appeal was delivered over three years after the date the offence was committed. The appellant caused some of the delay but part of the delay is inevitable once the appeal process is initiated. The appellant was partially successful on his appeal with respect to other offences which were tied to this matter.

• The appellant did not appeal the sentence at the time he brought an appeal against conviction. I accept there was no tactical advantage to be achieved by failing to pursue the appeal on sentence, however until the matter reached the Court of Appeal it was confined to an appeal against conviction.

• There was a victim impact statement tendered in the proceedings before the magistrate. The respondent does not seek to rely on this statement with respect to the appeal against sentence.

• The injuries that were sustained are set out in a report of Dr Manias from the Stuart Park Surgery dated 17 March 2004 which is part of Exhibit 1. The report notes as follows:

“On examination Ms Zangari had slightly loose front teeth both top and bottom on the left. There was a bruise on her upper right arm, circumferential, near her axilla.
There was a similar bruise around her left wrist.
She had scratch marks on her upper left arm.
A small superficial abrasion was noted on her lower posterior chest.
She had circular bruises just above both knee joints.
There was no swelling of the knees but some crepitus in the right knee with movement.
Finally there was a small bruise on her right inner thigh.
Overall Ms Zangari’s injuries were consistent with a recent physical assault.”

• Part of Exhibit 1 is a report from Dr Higgins at the Darwin Tooth Replacement Centre dated 17 March 2004. Dr Higgins stated inter alia:

“At the time of examination there were no soft tissue lacerations. Critical to the extent of the damage inflicted by the blow was the underlying pre-existing periodontal status of these teeth.

This lady has had a chronic ongoing periodontal problem for some time now. Most of her teeth show evidence of bone loss resulting in poor support.

A blow delivered with medium to light force would have been enough to cause this sort of damage. The teeth involved have been repositioned, splinted and reshaped as required. This is only a short term measure, long term prospects are poor especially for those teeth so affected. This incident has brought forward by 2-3 years her need to address her periodontal problems.”

• The appellant does have prior convictions. A record of prior convictions was Exhibit 16. On 30 September 1998, the appellant was convicted in the Darwin Court of Summary Jurisdiction on four charges of breaching a domestic violence order. Small fines were imposed on each matter. On 7 July 1994, the appellant was convicted of an offence of assault male on female and released on a 12 month good behaviour bond. There is also reference to a conviction for assault in New South Wales on 4 March 1996 when the appellant was fined $200. The appellant does not receive the consideration that is given to first offenders. Whilst every offence of assault is serious, it is conceded the previous matters appear to be relatively minor incidents. The appellant has not previously served a term of imprisonment.

• The appellant is not entitled to a discount for a plea of guilty or for any expression of remorse or contrition.

• Whilst the magistrate did refer to the incident as “involving a single punch” he had earlier, that same day when discussing submissions on sentence, stated (tp 189):

“HIS WORSHIP: Mr Woodcock, whatever the circumstances were, I’m dealing with one not very hard blow to the mouth between a man and a woman who are having an argument about something. I disapprove of anybody hitting anybody in those circumstances. But having said that, I’m sure Ms Zangari could be a doughty opponent in an argument. An assault is an assault, but as they go it’s not top of the range. It’s not even middle of the range.


HIS WORSHIP: However, Mr Woodcock, I think in the circumstances where I’m not dealing with a guilty plea there’s no discount for that. I think you’re asking rather a lot for the rising of the court in this position.

MR WOODCOCK: Well, sir, notwithstanding the lack of discount, the objective seriousness of the assault, because of the surrounding circumstances and because of the disputation leading up to it and the provocation in fact and how my client was treated by Ms Zangari and the blow consisting of one blow even on her victim impact statement, and not a very hard blow - - -

HIS WORSHIP: I mean, it was a grab, it was a turn around, it was a whack. That’s it.”

• From this extract of the transcript the magistrate was well aware he was dealing with an offence that involved a single minor blow to the mouth. Unfortunately, he did subsequently make reference to a “punch” which the Court of Appeal considered to be a significant error of fact as the evidence was a “slap” to the mouth as distinct from a “punch”.

• The appellant is the sole carer for a young son.

• The magistrate was not able to make a clear finding as to who started the argument that led to the assault. There was a state of tension between the appellant and the complainant when the argument erupted.

• It is not in dispute that the Court has the power to impose a sentence of imprisonment to the rising of the Court. Such a sentence is not precluded by s 78BA of the Sentencing Act (White v Brown (2003) 13 NTLR 50).

• There is no evidence to the effect that the appellant has re-offended since his conviction and sentence for this assault in October 2004, now almost three years ago and over three years since the offence was committed.

[16] On balance, I have come to the conclusion that the appropriate sentence is a sentence of one month imprisonment suspended upon the rising of the Court. I note the appellant did spend a short time in custody following the sentence imposed by the learned stipendiary magistrate.

[17] Accordingly, the order I make is that the appellant is convicted and sentenced to one month imprisonment to be released upon the rising of the Court and the sentence suspended. I take into account the appellant has spent a period of time in custody on the date of his conviction and sentence in the Court of Summary Jurisdiction on 25 October 2004. Pursuant to s 40(6) the Sentencing Act, I specify a period of 12 months from the date of this order during which the appellant is not to commit an offence punishable by imprisonment if he is to avoid being dealt with under s 43 of the Sentencing Act.