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ALFONS OSKA SALZGEBER v. GILLIAN RUTH HAYWARD
Nos. JA26 of 1995 and JA27 of 1995
Number of pages - 16
Criminal law - sentence - appeal
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
KEARNEY J
CWDS
Criminal law - sentence - appeal
HRNG
DARWIN, 3 November 1995
#DATE 21:11:1995
Counsel for appellant: S. Cox
Solicitors for appellant: Northern Territory Legal
Aid Commission
Counsel for respondent: J. Adams
Solicitors for respondent: DPP (NT)
ORDER
Appeal allowed in part.
JUDGE1
KEARNEY J On 3 November 1995 the following 2 appeals were argued together:-
(1) In proceedings no. JA26 of 1995 the appellant appealed
against a sentence of 3 months imprisonment imposed on him
by the Court of Summary Jurisdiction at Darwin on 17 August
1995, after he pleaded guilty to a charge of cultivating
cannabis. That is an offence under s74 of the Misuse of
Drugs Act (NT). It carries a maximum punishment of 7 years
imprisonment; see s7(2)(a) of the Act.
(2) In proceedings no. JA27 of 1995 the appellant appealed
against a sentence of 15 months imprisonment imposed on him
by the Court on the same day, after he had pleaded guilty to
a charge of doing a dangerous act. That is an offence under
s154(1) of the Criminal Code. The maximum punishment is 5
years imprisonment.
2. When dealt with summarily, as here, the maximum punishment which that
Court could impose for each offence was 2 years imprisonment. That is not the
punishment reserved for the "worst" category of cases of those types to come
before that Court; see Maynard v O'Brien (1991) 57 A Crim R 1 at p6.
3. The sentence imposed on the charge of cultivating cannabis was directed to
be served concurrently with the sentence imposed on the charge of doing a
dangerous act; the total effective punishment for the 2 offences was 15 months
imprisonment. A nonparole period of 4 months was fixed.
4. The grounds of appeal in each appeal, as amended, are identical, viz:-
(a) that the sentence was in the circumstances of the
offence and of the appellant, manifestly excessive;
(b) that the Court erred in failing to give sufficient
weight to the circumstances of the offence and matters
personal to the appellant;
(c) that the Court erred, by failing to consider sentencing
options alternative to imprisonment.
5. Ms Cox of counsel for the appellant restricted ground (a) to the appeal
against the sentence of 3 months imprisonment for cultivating cannabis.
THE PROCEEDINGS IN THE COURT BELOW
6. (a) The admitted facts on the charge of dangerous act - The charges were
dealt with together by consent. The appellant admitted that the following
facts stated by the prosecutor were correct.
7. During the evening of 14 June 1995 the appellant was at his residence at
Lot 2970 Wooliana Road, Daly River with his wife and the following men (the
victims of his subsequent dangerous act), Timothy Dorer, Freddie Mungara and
Warren McGregor. These three men were drinking beer and became intoxicated;
when they left one of them (said to be Mr Dorer), stated that he intended to
seek out a woman known as Yunga, to threaten and to harm her.
8. At that time Yunga had recently been a victim of domestic violence
inflicted in the course of her relationship with a relation of Mr Dorer's.
Yunga is related to the appellant's de facto wife and on 14 June she was being
sheltered at the appellant's residence.
9. The appellant was resting on his bed in his caravan, when he heard the
three men returning. He became concerned and annoyed at this, because they
were intoxicated and he feared they would cause trouble.
10. He decided to use a shotgun in his possession to shoot at the victims
from what he considered was a safe distance as far as they were concerned, to
convince them that he did not want them to return. He intended to "pepper"
them with No.2 buckshot, to sting them and to deter them from returning. He
did not intend that they suffer the perforations to their clothes or the
injuries they in fact sustained.
11. The appellant loaded the firearm, a 'Bikel' single-barrel shotgun, with a
live round of No.2 buckshot. He went outside, to the corner of his caravan;
there he had a view of the driveway along which the 3 men were approaching.
The appellant's eyesight is poor. When the men were about 35 metres away he
aimed for their legs calling out:- 'Piss off. Don't you come up here. I've
had enough of you.' He then fired the round; the buckshot hit the victims in
their legs.
12. The victims all received medical treatment, were 'medivacced' to Royal
Darwin Hospital, and later discharged. None of the injuries they sustained
were life-threatening; they consisted of minor buckshot wounds to the shins.
All three were back at Daly River the next day. Mr Dorer received buckshot
wounds to both legs, as he was in the middle of the three men when the shot
was fired.
13. The shotgun proved to have been in an unsafe condition: its stock was
held together by several wrappings of packaging tape; the foregrip under the
barrel in front of the trigger was held to the barrel by several wrappings of
electrician's tape; the breech was semi-seized and difficult to open or to
load or unload. The shotgun was not registered in the appellant's name. It
had once been registered but the appellant had no knowledge of the owner's
current whereabouts. A shotgun of the type used here is a firearm Class A, in
terms of s3(1) of the Firearms Act. The appellant did not hold a current
Northern Territory shooter's licence, required of a person using such a
firearm; see s27 of the Firearms Act. It is not suggested that at the time he
held a temporary permit under s34(1); he told the Police that he had not
renewed his shooter's licence because his eyesight was too poor.
14. The appellant was arrested on the night of 14 June. He took part in an
audio-taped interview by the Police at the Daly River Police Station. He made
full admissions to Police as to what he had done. When asked the reason for
his actions he said that he intended only to scare off the three men, and did
not intend to injure anyone. He also said that he was concerned for the
welfare of Yunga.
15. These were the facts relevant to the charge of doing a dangerous act.
16. (b) The admitted facts on the charge of cultivating cannabis - As to the
charge of cultivating cannabis, the appellant admitted to the following facts.
He resides at Wooliana Road, Daly River, on a large rural block. About 30
metres behind his caravan he had planted numerous cannabis seeds in the gully
of a dry creek bed. He tended the seedlings and eventually succeeded in
growing nine mature cannabis plants, which when seized on 15 June had an
average height of 1.5 metres. The plants were in individual plots in potting
mix and mulch, and connected to a sprinkler system. The appellant had cared
for the plants for about three or four months.
17. On 15 June 1995 Police attended at the appellant's residence in relation
to the charge of doing the dangerous act on 14 June, set out above (pp3-5).
They saw the cannabis plants and seized them. In an audio-taped interview
with Police at the Daly River Police Station the appellant admitted
cultivating the cannabis. He said that he was growing the plants in order to
give cannabis to his friends.
18. (c) The submissions in mitigation - In mitigation, Ms Davidson the then
counsel for the appellant, provided further details relating to the offences
charged and the appellant's circumstances. They were not disputed.
19. On the evening of 14 June the appellant was home with his de facto wife.
Also present that evening was the young Aboriginal woman known as Yunga and
the three men (the victims) earlier mentioned.
20. Timothy Dorer and Freddie Mungara are the sons of the appellant's de
facto wife. They have lived with him since 1972; his relationship with them
is akin to that of father-son. The three men in question had been drinking
since about 5 o'clock; they were quite drunk when the appellant arrived home.
He went to bed early that night and tried to go to sleep.
21. However, the three were talking and laughing quite loudly. He overheard
Freddie Mungara (not Timothy Dorer) talking about Yunga, saying that he
intended to cripple and harm her. Yunga, a relation of the appellant's de
facto wife, had been badly beaten up by her husband; she had come to the
appellant's home for shelter, and had been living there for about a week.
22. When the appellant heard Freddie Mungara, he went out and told him not to
say those sorts of things, and warned him to be quiet. He told Yunga that
there might be some trouble; he told her and his wife to run off into the
bush, which they did. He then went back to bed.
23. He lay there and heard Freddie Mungara say to the others, 'Come on.
Let's get her'. He then heard a commotion and voices, people yelling, someone
screaming. He became concerned and he went outside. He could not see
anybody. The voices died down, so he went back to the caravan.
24. Later he heard the voices of people approaching, so he took the shotgun,
loaded it with one round of No.2 buckshot, and went back outside. Buckshot
No.2 is used primarily for shooting birds and game. Its effective range is
about 30-metres. The firearm in question is a 12-gauge single barrel shotgun.
25. The appellant saw the 3 men approaching. They were very noisy and very
drunk. Ms Davidson continued:-
"He says that by now he had had enough of them. He didn't
want them to come any closer. He wanted them to go away.
So he called out to them, 'Piss off. Don't come here. I've
had enough of you.' THEY KEPT WALKING TOWARDS HIM, so he
shot at them, one round - - - he thought he was shooting at
them from a safe distance, in that the pellets would only
sting them, would bounce off their trousers and their legs,
and sting them rather than actually hurt them. He is an
experienced shooter. He has actually held a shooter's
licence in the past.
He knows how to use that gun and he knows the range of those
pellets, and he thought that at that distance there would be
no chance at all that they would actually be hurt. Now, the
Police say the distance was 35 metres. He thought it was
further. It was dark, not a strong moonlight. It - - -
could have been further than 35 metres, because that
distance (stated by the Police) is based on the victims'
estimate. They were very drunk. (The appellant) thought
they were further away than that. He thought that from that
distance he would pepper them rather than perforate them, to
use the words of the (Police) precis; sting them to deter
them from coming closer, but not actually have the bullets
embedded in their flesh. In fact, the bullets didn't become
embedded in their flesh, they did bounce off. THE INJURIES
suffered were minor buckshot wounds, which, I am instructed,
WERE IN THE NATURE OF GRAZES rather than deeply-penetrating
wounds. - - - one of the victims is here in court, that is
Mr Timothy Dorer. He is willing to give evidence, but he is
very shy about speaking in front of all of these people.
But I would ask you to accept that what he has told me is
that HE DIDN'T RECEIVE ANY INJURIES OF ANY WEIGHT, and he
has apologised to Mr Salzgeber for what happened. In turn,
Mr Salzgeber has apologised to him.
I am instructed that there's no hard feelings between them,
or (between the appellant and) any of the other two victims
who wanted to come today, but they are at Port Keats, so
they weren't able to come. Mr Salzgeber instructs that he
aimed that gun at their legs, at their shin area, certainly
no higher than that. He didn't realise that he had hit them
at first. He was very surprised when he did realise and he
says that he felt terrible about it.
He immediately took them to the Health Clinic at Daly
Mission and the Police were notified. They were taken to
Darwin at 4 am the next morning, merely as a precaution, and
they were discharged immediately and sent back to Daly
River. The Police attended the next day at his place, and
that is when they found the cannabis, which I will address
you on later. He made full and frank admissions to them and
told them exactly what had happened and what his intentions
were on that day - - - when the victims did return to Daly
River everyone apologised to each other and there's now no
hard feelings amongst those people. Mr Salzgeber says that
he is extremely sorry about this. He is not a violent
person and he normally lives in harmony with these people
and there has never been any trouble like this before - - -
in recent years. His remorse is evident by his plea of
guilty and further by his actions in taking the men to the
Health Clinic, talking to the police and making full
admissions to them about that.
Your Worship, he does have two priors for aggravated assault
but they are an extremely long time ago, 26 years and 24
years ago. I am instructed that they were minor
aggravations. On one occasion the aggravation was because
(the victim) was a woman, and that (involved) a push. On
(the other) occasion it was a fight in a native camp. - - -
the fines were minor, - - - and he has certainly not
offended in any violent matter, or in any serious manner
really, since that date. - - - he is 61 and he has lived in
the Northern Territory since 1957. He lives on this
property at Daly River. He has a long association with Daly
River. He is the captain of the Daly River Volunteer Fire
Brigade. He is very proud of the fact that he has never
been on a pension and he has always worked and supported
himself and his family. His work is picking mangoes,
pruning mangoes. He grows mangoes on his own property, and
other tropical fruits. - - - he hopes to sell (them). That
has only been a recent undertaking. He is the only one that
knows how to look after (them).
Your Worship, what I am asking the court to consider is a
suspended sentence or a term of home detention." (emphasis
mine)
26. Ms Davidson referred his Worship to the sentencing in various 'dangerous
acts' cases: Good v O'Brien (unreported, Martin CJ, 25 March 1992); R v Asher
(unreported, Angel J, 2 February 1995); R v Hutton; and R v Hoessinger. She
submitted that this was not an aggravated dangerous act; the appellant was not
intoxicated; there was no serious injury, and never any actual or potential
danger to life; nor was there any intention to cause injury. Further, the
victims were not completely blameless in the incident.
27. As to the cultivation of the cannabis plants, Ms Davidson submitted that
this was the appellant's first attempt at cultivating cannabis. He had a
sprinkler system and other materials available for the purpose of running his
mango farm. It was not a commercial operation; he grew the cannabis merely to
share with his friends, as a matter of hospitality. He had received
complaints from them that cannabis was expensive to buy and so he cultivated
some so as to provide it to them and to smoke some himself. She said that she
was instructed that some of the plants were 1.5 metres high, though others
were smaller. He had no prior convictions for any drug offence. She submitted
that the appropriate punishment was also one of a suspended sentence of
imprisonment.
28. The prosecutor submitted that the charges were "extremely serious", and
that a custodial sentence was warranted. He noted that in Good v O'Brien
(supra) the weapon used was an air rifle and the person charged was only 17
years of age.
(d) His Worship's remarks on sentence
THE PROCEEDINGS IN THE COURT BELOW
29. In sentencing, his Worship briefly reviewed the facts and said:-
"- - - you are a man now of 61 years of age. You have a
history of minor troubles with the law. Ms Davidson drew my
attention, quite properly, to the fact that your last
offence of violence was in 1971 and the only one before that
was in 1969, so long ago that I can, I think, safely
disregard those as shedding no light upon your present
character; and, in relation to the charges involving the
shotgun, the dangerous act charge at least, I think that is
fair enough.
However, your more recent offences, which have been pretty
consistently minor matters, demonstrate to my way of
thinking that you have been intermittently at least for the
last - or certainly through the '80s, pretty well
indifferent to the requirements of the law in various
regulatory respects, and I refer her just in general to the
unroadworthy, uninsured, unregistered motor vehicle charge,
drive unlicensed charge, no helmet charge, another unsafe
motor vehicle charge, some charges in relation to
unauthorised slaughter and pet-meating - - - and a fishing
charge and a hinder police charge.
These (were) all committed between 1980 and 1987, covering a
fair spectrum of human activities by someone who lives in
the bush, and showing a fair degree of indifference to the
requirements of the law in a number of areas; which - - -
perhaps is related in a way to your indifference to whether
this shotgun was registered, whether you were licensed, and
perhaps also relevant to the cannabis charge to which you
have pleaded guilty. You are not, of course, the only
person who lives out bush, Mr Salzgeber, who takes a fairly
selective attitude to legal obligations in these respects,
including firearms and cannabis charges.
So coming to the facts of the dangerous act charge. I am
satisfied that the victims of your act, these three young
men (who) had been at your home - and two of them seem to
have been your stepsons - are well-known to you. I am
satisfied that after this event you made your peace with
them and they with you. They have apologised for their
behaviour, which caused you to arm yourself and discharge
the shotgun; you have apologised for yours, and things have
settled down between you.
I am satisfied that your reason for wanting to keep these
young men away from your house that night was not only the
fact that they were making a racket, because they were
drunk, and keeping you awake, but, more particularly and
more importantly, that one of them had uttered not so much a
threat but declared his intention to do some harm, give a
flogging, to a girl, a relation of your wife who was, as it
were, under your protection and you desired to protect that
girl by keeping the boys away.
You first succeeded in doing this by 'growling' at them, and
they went away. They may have come back. There may have
been some trouble in the bush. - - - They certainly did
come back after that, and that is when you, for a reason
which escapes me and makes no sense at all, decided that
words were no longer sufficient, and got your gun.
Now, Mr Salzgeber, that was an extremely stupid thing to do.
It is almost always a stupid thing to do when a person arms
himself with a firearm or other dangerous weapon in a
situation where a confrontation may result, and it is stupid
because if your bluff, or the person's bluff, gets called,
then chances are the armed person will use his weapon.
If you create such situations that is the sort of trouble
you are asking for and you are just raising the ante in the
confrontation to a degree, which, on the facts of this case,
was certainly not warranted at all at that stage. I can't
see any reason why your presence alone, which had succeeded
in chasing these boys away once, would not have succeeded in
chasing them away again.
However, you went further in your stupidity than arming
yourself and fronting these lads. You told them to 'piss
off'. They didn't go immediately. You had loaded the gun.
You aimed it in the direction of their legs and discharged
the gun, intending the pellets to strike their legs and
expecting, I am told, that at the range - which you may have