PARTIES: STUART JAMES WARLAPINNI
Appellant
and
PETER MAXWELL CUMMING and DAVID STEVEN MOORE
Respondents
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE
JURISDICTION
FILE NO: JA86 of 2000 (20016585)
JA87 of 2000 (20015549)
#DATE 29:05:2001
DELIVERED: 29 May 2001
HEARING DATES: 23 APRIL 2001
JUDGMENT OF: MILDREN J
Criminal law - sentence - appeal
1. As to the appeal in relation to No. JA87 of 2000 (20015549) the appeal is
allowed. The conviction and sentence are both set aside. In lieu thereof,
without recording a conviction the appellant is released.
2. As to the appeal in relation to No. JA86 of 2000 (200016585) the appeal is
dismissed.
Counsel:
Appellant: Mr S Johns
Respondent: Ms T Austin
Solicitors:
Appellant: NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC
Respondent: DIRECTOR OF PUBLIC PROSECUTIONS
Judgment category classification: C
Number of pages: 17
IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
BETWEEN:
STUART JAMES WARLAPINNI
Appellant
AND:
PETER MAXWELL CUMMING and
DAVID STEVEN MOORE
Respondent
CORAM: MILDREN J
(Delivered 29 May 2001)
MILDREN J:
[1] The appellant pleaded guilty in the Court of Summary Jurisdiction to three
charges for which he was convicted and sentenced as follows:
File No: JA87 of 2000 (20015549) - Date of offences: 11 September
2000
Count 1: Aggravated unlawful use of a motor vehicle (s218(1) and (2)(a) of
the Criminal Code).
Sentence: Imprisonment for 14 days.
Count 2: Drive unlicensed: (s.32(1)(a) of the Traffic Act).
Sentence: Convicted and fined $100
File No: JA86 of 2000 (20016585) - Date of offence: 26 September 2000
Count 1: Aggravated assault.
Sentence: Convicted. Imprisoned for 3 months and 17 days cumulative on File
No. 20015549.
[2] The total sentences of four months were suspended after two months upon
conditions. The appellant has appealed against the sentences which resulted in
prison sentences upon a number of grounds as appears hereafter.
[3] The facts as alleged by the prosecutor and admitted by the accused in
relation to the aggravated unlawful use charge are that on the morning of
Monday, 11 September 2000, the appellant had had an argument with his wife at
their house in the Nguiu Community, Bathurst Island. After the argument, the
appellant walked to the airport to calm down. Parked on the edge of an access
road to the airport was an unattended white Toyota Hilux dual-cab utility, the
property of the Nguiu Community Government Council, with the keys left in the
ignition. The appellant got in, started the engine and drove back towards the
township. As he drove past the church, he saw his wife standing in a nearby
park. He stopped to speak to her and the argument continued. After a short
time had passed he returned to the vehicle, drove it towards the township, then
turned around and drove back to the airport. He left the vehicle where he had
found it. When later asked by police about this matter, he admitted to those
events and told the police he took the vehicle because he was "cranky" and
hungry. He had no permission to take the vehicle which was valued at $30,000.
No damage was done to the vehicle which had been taken for about ten
minutes.
[4] The facts in relation to the aggravated assault matter were that at midday
on Tuesday 26 September 2000, the appellant was at his house when he saw the
victim alight from a bus. He took a fishing spear from the roof of his house
and ran towards the victim whilst holding the spear in both hands. The victim,
who was walking away from the appellant, heard warnings from people nearby and
turned towards the appellant. As he did so, the appellant threw the spear at
him. The victim moved to avoid it but the handle of the spear caught his
shoulder deflecting the spear away. The appellant ran towards the victim with
clenched fists and punched him three times to the face. The victim retaliated.
The appellant desisted when called upon to stop fighting by family members
nearby.
[5] The defendant called evidence as to his character. Mr Victor Punguatj, an
assistant teacher, said he was the appellant's uncle and had known him since he
was a child. He said that the appellant was "usually quiet", had never got
into a fight before and was looked upon by the younger members of the community
as a football role model. Some evidence as to his prowess as a footballer was
given and the Court was told that he got along well with the "kids around the
footy field". Mr Punguatj said he had, in effect, counselled the defendant
about the assault matter and that he had claimed to have been teased by the
victim in that matter over the result of the grand final, in which the victim
was a member of the victorious team and the appellant had played for the loser
and this had made him angry. He said that he had spoken to the victim who had
said that the appellant had apologised to him. He said that the appellant had
recently become a father and was nervous about coming to Court because he had
never been to a court before. He also said that the appellant, since his
daughter's birth, had changed and had settled down. He said that the appellant
was looking for work and that he hoped to help him to obtain a position as a
groundsman. He also said that he had heard that the appellant was an
occasional user of cannabis and he had warned him against smoking it before
playing football.
[6] In submissions, it was put that the appellant was nineteen years of age and
had no prior convictions. As to the unlawful use matter, it was submitted that
the appellant was angry because his wife had given away all the food in the
house to members of her family who were in difficult financial circumstances
and he was hungry and had had nothing to eat. In relation to the assault
matter, it was put that both the victim and the appellant had apologised to
each other and that matter was settled as between them. It was put that the
appellant was remorseful and accepted he had down the wrong thing. It also
transpired that the appellant's daughter had only just been born, was still in
Darwin and that he had not yet seen her. It is obvious that the appellant is a
Tiwi Islander, but nothing more is known about his cultural background.
The appeal relating to the unlawful use charge
[7] In relation to the unlawful use charge, this was a property offence which
carried a mandatory minimum sentence of fourteen days' imprisonment. The
appellant's submission before the learned Magistrate was that exceptional
circumstances existed which authorised the imposition of a lesser penalty,
vide ss78A(6B) and (6C) of the Sentencing Act.
[8] Section 78A(6C) provides as follows: (a) that the offence was trivial in nature;
(b) that the offender has made, or has made reasonable efforts to make, full
restitution;
(c) that the offender is otherwise of good character and that there was
mitigating circumstances (which it is noted do not include intoxication due to
alcohol or the use of illegal drugs) that significantly reduce the extent to
which the offender is to blame for the commission of the offence and
demonstrate that the commission of the offence was an aberration from the
offender's usual behaviour;
(d) that the offender co-operated with law enforcement agencies in the
investigation of the offence,
the onus of providing the existence of the matters referred to in paragraphs
(a), (b), (c) and (d) being on the offender.
[9] The learned Magistrate was satisfied as to subparagraphs
(a), (b) and (d) of s78A(6C) and appears to have been satisfied that the
appellant is otherwise of good character, but his Worship was not satisfied
that there were mitigating circumstances which significantly reduced the extent
to which the offender was to blame for the offence, nor was he satisfied that
there were mitigating circumstances which demonstrated that the commission of
the offence was an aberration from the offender's usual behaviour. Ground 1 of
the appellant's notice of appeal contends that his Worship erred in failing to
be satisfied that the elements of subparagraph (c) had been made out. It was
submitted by the respondent that it was not entirely clear whether his Worship
made a formal finding that "the appellant is otherwise of good character",
given some of the observations his Worship made elsewhere in his remarks on
sentencing, viz: Because this issue has been raised, it is necessary to consider
that question as well.
Was the appellant otherwise of good character?
[10] As Martin CJ observed in Stephensen v Trennery [2000] NTSC 92, the
appellant's character fell to be considered at the time the assessment is made
after the finding of guilt for the offence in question. His Honour, after
referring to a number of decisions as well as to s6 of the Sentencing
Act said at para [18]: I respectfully agree with these observations.
[11] Nevertheless, a person's lack of prior convictions, particularly in the
case of a youthful first offender if nothing that is adverse is known, may
still be enough to establish good character because inferences may be able to
be drawn from the circumstances. If one looks at the circumstances of this
case at the time of sentencing, the appellant was a nineteen year old
Aboriginal, married with a recently born daughter, unemployed and living in
Nguiu where employment is hard to obtain. He appears to be very poor to the
extent that there was no food for him to eat because his wife had given it all
away to her family. Clearly he is not to be blamed for his poverty and lack of
work. Whilst there are no doubt many young Aboriginal persons living in remote
communities who reach the age of nineteen without a criminal record, it is the
experience of the courts that young Aboriginals who are troublemakers or
lawbreakers usually have come before the courts by this time. Here, not only
was the appellant without any prior convictions, but the prosecutor had advised
the Court that nothing was known, i.e. he had not been dealt with before even
to the extent of proceeding without recording a conviction and the Court had
been told that he had never been to Court before. This bespoke highly of his
good character, but there was in fact more information available. I also think
that what was said of the appellant's reputation as a sportsman should be
afforded some weight. In many Aboriginal communities, skilled footballers are
highly regarded. It is well recognised that team sports are character
building. Skill in a sport bespeaks good character because it indicates that
the person has worked hard at it to learn the skills and in the case of team
sports, has learned the value of teamsmanship. In this case, the appellant was
looked upon by the younger members of the community to whom he related well as
a role model which implies that he had learned the character-building traits
which organised sport is supposed to engender. There was evidence that he was
looking for work which suggests that he wanted gainful employment if he could
find it. The fact that Mr Punguatj was prepared to speak on his behalf and
prepared to assist him to find work, is in itself helpful in arriving at a
conclusion in his favour. In addition there is evidence that he has never got
into a fight (except on the football field) and is usually quiet. On the other
hand, there is little known about his reputation, other than his football
prowess and that he is reputed to be an occasional cannabis smoker. Whilst
general reputation is a matter to be considered (see s6(B)) one would not
expect a nineteen year old Aboriginal to have had much opportunity to develop
much of a reputation, good or bad, other than perhaps as to his moral
qualities. Much the same might be said about the extent of any significant
contributions made to the community: see s6(C). The only other matter to be
considered is the subsequent offending on 26 September. I accept that courts
have said in relation to offenders who have no prior convictions but who are
facing sentence on multiple charges committed over a period of time that a
subsequent offence or offences may have relevance as operating to impair the
offender's good character: see for example, The Queen v McInerney (1986)
42 SASR 111 at 112 per King CJ. However, this was a charge of a different
character and although of some seriousness, I think on balance a finding that
the appellant was a person of good character at the time of the hearing was the
correct finding.
Were there mitigating circumstances which significantly reduced the extent
to which the appellant was to blame for the commission of the offence?
[12] The learned Magistrate found against the appellant on this issue. His
Worship said: In this case I see nothing out of the ordinary. I see a compulsive, spur of
the moment offending, fuelled by anger which is common to many crimes. I do
not see how it significantly reduces the extent to which the offender is to
blame.
[13] Ms Austin, counsel for the respondent, in her very
valuable submissions, argued that this did not demonstrate error and relied
upon a passage from the judgment of Anderson J in Woods v The Queen
(1994) 14 WAR 341 at 350-51 Ms Austin submitted that the appellant's anger and hunger did
not provide a sensible explanation for his behaviour because there was no
apparent connection between it and the offending. It is not clear from the
evidence how far the airport was away from the appellant's home, or how much
time had elapsed between the argument and the offending, but the facts show
that the appellant was still upset with his wife when he stopped and spoke to
her in the park. The inference is that he took the vehicle in order to return
to his wife and have it out with her as he appears to have done and I think
there is a connection.
[14] In Gorey v Winzar [2001] NTSC 21, Martin CJ took into account as
factors under this heading, the lack of any planning in the offence and the
fact that the offender was only eighteen years of age, "thus attracting the
special mitigating consideration available in the sentencing of young offenders
were it not for the mandatory sentencing requirements", as well as some of the
other factors relevant to the conclusion that the offence was trivial: see para
[26] of his Honour's judgment. His Honour observed at para [25]: [15] Those considerations were also present here in that the
appellant was only nineteen years of age, the offence was not planned but a
spontaneous response to the anger he felt towards his wife for giving away all
the food and in addition, the vehicle was returned undamaged after only ten
minutes. I consider that his Worship erred and should have found in the
appellant's favour on this issue.
Were there mitigating circumstances which demonstrated that the commission
of the offence was an aberration from the appellant's usual behaviour?
[16] His Worship decided that the mitigating circumstances did not demonstrate
that this was an aberration from his usual behaviour because his subsequent
offending, which was a show of anger, demonstrated that the anger leading to
the offending on 11 September with the motor vehicle was not "one-off".
Counsel for the appellant, Mr Johns, submitted that his Worship erred in
relying on the subsequent offending to demonstrate that this was not an
aberration from his usual behaviour. Counsel for the respondent, Ms Austin,
submitted that his Worship had not fallen into error and relied upon a number
of authorities to the effect that a sentencing court may have regard to
subsequent offending where it is relevant. However, I consider that Mr Johns'
submission is correct. Section 78A(6C)(c) is drafted with an important change
of tense in the verbs used. Whilst the subsection required the offender to
show that he "is otherwise of good character", the offender need only show that
the mitigating circumstances "demonstrate that the commission of the offence
was an aberration from the offender's usual behaviour". Further, when
the provision refers to mitigating circumstances, it must be referring to the
circumstances relevant to the offence concerned and it is difficult to see how
subsequent offending can be said to be a mitigating circumstance, in the
ordinary use of language.
[17] I consider that what his Worship failed to do was to consider what were
the mitigating circumstances and if they demonstrated that the commission of
the offence was an aberration from defendant's usual behaviour. The relevant
mitigating circumstancs were his lack of prior convictions or of any trouble
with the law, his age, the lack of planning or premeditation and the fact that
the offender acted impulsively as a result of the anger he felt towards his
wife giving away all of his food. I consider that these circumstances clearly
demonstrated that at the time of the offence, this was an aberration from his
usual behaviour and that his Worship should have so found.
[18] It follows that I consider that his Worship erred in concluding that the
appellant had not established "exceptional circumstances" within the meaning of
s78A(6B) of the Act.
The appeal relating to the assault charge
[19] As to the appeal against the sentence imposed for the aggravated assault
charge, his Worship noted that the appellant had been teased by the victim, but
he rightly observed that no material had been put to the Court as to when this
took place. On the facts presented by the prosecutor, there was no opportunity
for this to have occured from the time the victim alighted the bus and it may
have occurred at any time after the grand final at the end of the wet season
for all his Worship knew. His Worship took into account that the appellant had
apologised and the other matters put on his behalf in mitigation, but concluded
that the assault was serious because a weapon was used. The information
available to the Court about the weapon was only that it was a fish spear, but
I have no doubt that his Worship was quite familar with objects of that nature
and of their potential to cause serious injury if, for example, such a spear
were to become lodged in an eye.
[20] Mr Johns was unable to point to any specific error, but submitted that his
Worship's sentence was manifestly excessive and that his Worship failed to give
sufficient weight to the appellant's youth, lack of prior convictions and
prospects of rehabilitation, the fact that no injuries were in fact caused and
the appellant and his victim were now reconciled, whilst much emphasis was
placed upon general deterence. Ms Austin submitted that an actual custodial
sentence was warranted , notwithstanding the appellant's youth and the other
mitigating circumstances in his favour because the offence was a serious one of
its type. It was submitted that the learned Magistrate did not err in applying
relevant principles to the facts of the case and that, in order to succeed on
appeal, not only must the sentence be excessive, but it must be manifestly so.
Ms Austin also pointed to the fact that two months of the sentence was
suspended as indicating that his Worship did not ignore the appellant's
prospects of rehabilitation and showed a measure of leniency consistent with an
acceptance of the mitigating circumstances put on his behalf. It is to be
noted also that his Worship indicated that he thought the "starting point" for
this offence was eight months imprisonment which he discounted to four months
to take into acount his plea of guilty and the abolition of remissions. The
four months was further reduced to three months and seventeen days in
accordance with the totality principle, to ameliorate the effect of the
fourteen day mandatory sentence, given that his Worship said that he would not
otherwise have imposed a sentence of imprisonment for the unlawful use
offence.
[21] As was said by King CJ in Yardley v Betts (1979) 22 SASR 108 at
113, assaults vary greatly in seriousness and the need for deterrent punishment
varies according to the circumstances of the offence. Further, as his Honour
observed in that case, there is no judicial policy that assaults which could be
characterised as "serious" must inevitably call for a sentence of actual
imprisonment. Nevertheless as Bray CJ said in Birch v Fitzgerald (1975)
11 SASR 114 at 116-117: I am not, of course, saying that all such first offenders ought to be sent
to gaol. There is a wide range for the proper application of judicial
discretion.
[22] Clearly the use of the fish spear as a weapon in
circumstances where the appellant's anger made him a potential danger to the
victim was a circumstance that warranted a deterrent sentence. The fact that
the spear only just missed its mark was due to good fortune rather than
anything else and indicates that the appellant intended to cause his victim
physical harm. Even if the spear had hit the victim in the back, some physical
harm could have been expected. I therefore do not think his Worship erred in
concluding that an actual custodial sentence was warranted. The nub of the
appellant's submission was not that there was a head sentence of imprisonment,
nor that the head sentence was too long, but that his Worship should have
suspended it fully. I do not consider that it has been demonstrated that his
Worship's sentence was manifestly excessive because of this. As to the grounds
of appeal relating to the failure to give sufficient weight to the matters
referred to by Mr Johns, there is nothing to suggest that his Worship did not
give those matters adequate weight in the sense explained by Gibbs CJ in
Mallet v Mallet (1983-4) 156 CLR 605 at 614, and recently approved by
Gaudron and Gummow JJ in Dinsdale (2000) 115 A Crim R 558 at
565.
[23] Given that his Worship reduced the head sentence to take into account the
totality principle, I think it is plain that his Worship would have otherwise
imposed a sentence of four months, to be released after two months, on
conditions. In those circumstances, the question arises as to whether,
notwithstanding that error has been shown in relation to the sentence of
fourteen days for the unlawful matter, the appeals ought to be dismissed on the
ground that no substantial miscarriage of justice has actually occurred: see
s177(2) of the Justices Act. However, s78(6E) of the Sentencing
Act provides: Therefore, if the sentence of fourteen days imprisonment is not
set aside, the appellant would face a mandatory minimum term of ninety days for
any subsequent property offence, rather than one of fourteen days. There is
also the question of whether a conviction should be recorded. I do not think
it can be said in those circumstances that no substantial miscarrage of justice
has actually occurred. That being so, the question is what orders should now
be made. In all the circumstances I consider that the appropriate orders are
as follows:
1. As to the appeal in relation to No. JA87 of 2000 (20015549) the appeal is
allowed. The conviction and sentence are both set aside.
In lieu thereof, without recording a conviction the appellant is released.
2. As to the appeal in relation to No. JA86 of 2000 (200016585) the appeal is
dismissed.
[24] There will be orders accordingly.
(6C) For the purposes of subsection (6B), exceptional
circumstances will only exist if the offender is before the court to be
sentenced in respect of a single property offence, the offender has not on any
previous day been dealt with by a court under subsection (6B) and the court is
satisfied of all of the following:
I have to say the evidence of good character here seems to be
scanty and it consists of a statement that he is usually quiet, never been in a
fight except on the footy field and that he is a footy role model for young
kids with whom he is talkative and he is a footy role model because he spent
three months in Cairns recently, playing football.
The legislature clearly did not intend that prior criminal
convictions would be determinative of the question of character. If that were
intended, then it would have been clearly spelt out. Nor do I consider that
the presence or absence of prior criminal convictions is the only factor to be
taken into account, particularly given that the assessment is to be made as at
the time of the finding of guilt for the property offence.
When is it to be considered that the circumstance of mitigation,
that is; the offending as a result of an impulsive, spur of the moment,
emotionally fuelled act which normally entitles a person to leniency, be
considered to significantly reduce the extent to which the offender is to blame?
When emotional stress is put forward in mitigation, the court must
be persuaded that the offending is connected to the emotional condition in a
way that to some sensible degree lessens the offender's culpability or the
criminality of his/her behaviour, or makes retribution less imperative, or
positively indicates that the offending is out of character and therefore may
not be repeated, so as to perhaps lead to the conclusion that there is no need,
in the particular case, to place emphasis on personal deterrence or so as
perhaps to lead to the conclusion that the case is not one in which it is
appropriate to emphasise general deterrence.
The expression "mitigating circumstances" is normally understood as
relating to circumstances which operate so as to moderate the severity of the
sentence. Here, attention is firstly directed to those that can be advanced to
significantly reduce the offender's blameworthiness (emphasis added).
There may be one or more such circumstances, but whether standing alone or in
combination, they must produce the result if the offender is to succeed. The
word "blame" introduces the concept of responsibility of the offender for the
commission of the offence.
Nevertheless there are offences in which, as it seems to me, the
deterrent purpose of punishment must take priority. When people act under the
influence of liquor, passion, anger or the like so as to constitute themselves
a physical danger or potential physical danger to other citizens it may well be
that a sentence of imprisonment will be appropriate, even in the case of a
first offender of good character, in order to impress on the community at large
that such behaviour will not be tolerated. Parliament has regarded a second
offence of driving under the influence of liquor as falling into that category.
A court will often in my view be justified in treating unprovoked violence in
the same way in the absence of mitigating circumstances. As I said in
Sellen v. Chambers (1974) 7 SASR 103 at p106, 'Violence has increased,
is increasing, and ought to be diminished, particularly violence by young men
towards each other.' It may be that the incidence of such violence will be
reduced if it is brought home to those likely to resort to it that if they do
they may very well be punching, striking, butting or kicking themselves into
gaol.
(6E) If an offender who has been dealt with on a previous day
under subsection (6B) is before the court to be sentenced in respect of one or
more property offences that were committed after the offender was dealt with
under subsection (6B) and it is necessary to determine the number of previous
days on which the offender has been sentenced to under this section, the day on
which the offender was dealt with under subsection (6B) is not to be taken into
account as such a day.