Punch v Eaton [2012] NTSC 59

 

PARTIES:                                         PUNCH, Leslie

 

                                                         v

 

                                                         EATON, Donald

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA-AS 09 of 2012 (21219064),

                                                         JA-AS 10 of 2012 (21219063) and

                                                         JA-AS 11 of 2012 (21219065)

 

DELIVERED:                                   14 August 2012

 

HEARING DATES:                           3 August 2012

 

JUDGMENT OF:                              MILDREN J

 

APPEAL FROM:                               COURT OF SUMMARY JURISDICTION

                                                         (MR J NEILL SM)

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     R Anderson

    Respondent:                                  C Roberts

 

Solicitors:

    Appellant:                                     Northern Territory Legal Aid Commission

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    C

Number of pages:                             11


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Punch v Eaton [2012] NTSC 59

Nos. JA-AS 09 of 2012 (21219064),

JA-AS 10 of 2012 (21219063) and

JA-AS 11 of 2012 (21219065)

 

 

                                                     BETWEEN:

 

                                                     LESLIE PUNCH

                                                         Appellant

 

                                                     AND:

 

                                                     DONALD EATON

                                                         Respondent

 

CORAM:     MILDREN J

 

REASONS FOR JUDGMENT

 

(Delivered 14 August 2012)

 

[1]       The appellant entered pleas of guilty to six charges on three files in the Court of Summary Jurisdiction and was sentenced as follows:

Case No.

Offence

Sentence

21219063

Count 1 – s 188(1) Criminal Code, assault with circumstance of aggravation, threatened with offensive weapon (per s 188(2))

Convicted, 4 months imprisonment

 

Count 2 – s 166 Criminal Code, make a threat to kill person

Convicted, 8 months, 3 months concurrent and 5 months cumulative on count 1

21219064

Count 1 – s 188(1) Criminal Code, assault a person

Convicted, 5 months imprisonment, 2 months concurrent and 3 months cumulative on file 21219063

 

Count 3 – s 158 Police Administration Act, resist member of police in execution of duty

Conviction, 3 months imprisonment, 1 month concurrent and 2 months cumulative on count 1

 

Count 4 – s 47(e) Summary Offences Act, cause substantial annoyance to another

Conviction, 1 month imprisonment concurrent on count 3

21219065

Count 1 – s 210 Criminal Code, stealing

Conviction, 4 months commencing 19 May 2012

Total Effective Sentence

 

18 months imprisonment

The learned Magistrate fixed a non-parole period of 12 months.  The total sentence and non-parole period was backdated to commence on 19 May 2012, a period of six days.

[2]       In relation to case number 21219063, the facts in relation to count 1 were that at 6:30 pm on Saturday, 19 May 2012, the appellant attended the Tennant Creek Hotel.  He walked into the bottle shop and approached Mr De Sousa, who was a staff member of the hotel, and said to him: “Fuck you, I’ll kill you.  I’ll kill your mum, I’ll kill your sister, I’ll kill your family.  You can’t hide from me.  I’ll sing you, I’ll stab you, cunt.”  Whilst saying this, he had one hand in his pocket.  Mr De Sousa walked into a protected area of the bottle shop and locked the gate as the appellant walked towards him still hiding his hand in his pocket.  Mr De Sousa asked the appellant what his problem was and the appellant said, “I’m going to kill you.” 

[3]       The facts in relation to count 2 were that the appellant then left the bottle shop and walked into Jackson’s Bar, which is a part of the Tennant Creek Hotel.  There, he approached another staff member, a Mr Delage.  He asked for a smoke.  Mr Delage said he did not have any smokes.  The appellant continued to ask for smokes.  Then he said, “You’re in my country.  I know you’re not from here.  I’m going to kill you.  I’m going to kill your family.  We’re going to find you.  I’ll kill your parents.”  Mr Delage told the appellant to leave the bar.  The appellant refused and continued to tell Mr Delage he would kill him and his extended family.  The appellant had his right hand in his pocket and appeared to hold something.  He picked up a chair with his left hand and held it above his head as if he was going to throw it at Mr Delage.  He yelled: “Get closer, get closer.”  The appellant put the chair down and walked behind the bar where Mr Delage was standing, still with his right hand in his pocket.  Mr Delage believed that the appellant had a knife in his pocket.  As he entered the bar, Mr Delage left through the back door.  The appellant went and stood at the front of the Jackson’s Bar yelling, “Cunt, cunt, cunt.

[4]       The appellant was arrested later that day and participated in an electronic record of interview where he had made no admissions.  When asked his reasons for assaulting Mr De Sousa and Mr Delage, his reply was, “I don’t know, I was blind drunk.” 

[5]       In relation to matter number 21219064, the facts in relation to count 1 were that at 7:30 pm on Saturday, 19 May 2012, the appellant walked up to the victim, a Korean gentleman by the name of Kok Kong Yu, and said, “Give me a smoke.”  The victim told the appellant he did not have a smoke.  The appellant went in towards the victim’s face, to a distance of about 25 centimetres.  He said, “How about you give me $50.00.  If you don’t give me $50.00, I’m going to break your nose, motherfucker.  I’ll come back with a gun and shoot you.”  The victim believed that the appellant was actually going to punch him in the nose because the appellant stood close to his face, and was much bigger in stature to him.  He also worried that the appellant would come back with a gun and shoot him.  He walked away from the appellant towards Civic Video.  The appellant followed.  The victim spoke to a friend at the front of Civic Video.  The appellant said, “I’ll break your nose.”  The wife of the victim’s friend walked out of Civic Video.  The appellant said, “Don’t you look at your missus, I’ll break that bitch’s nose, motherfucker.

[6]       The facts in relation to counts 3 and 4 were that the appellant then walked off along Patterson Street towards Tennant Creek Hotel.  He then turned his T-Shirt inside out to avoid being identified.  He walked to the Goldfields bottle shop across the road from Civic Video.  The police attended at that location and arrested the appellant.  The appellant struggled with the police and resisted arrest.  The appellant was taken to the ground, but would not release his right hand from underneath his stomach.  Eventually, he did release his right hand and was conveyed to the Tennant Creek Police Station for processing.

[7]       Whilst being spoken to at the watch house, the appellant said to Constable Vale, “I’ll kill you, your children, your mother, your father.  I’ll fuck your sister and your wife.

[8]       The appellant was asked his reasons for the assault and making threats to kill, and assaulting a member of the police force and resisting police in execution of their duty, and his reply to all of those questions was, “I don’t know, I was blind drunk.

[9]       The facts in relation to the count of stealing, matter number 21219065, were that at 3:00 pm on Saturday, 19 May 2012, the appellant walked into the drive-through section of the bottle shop of Tennant Creek Hotel.  He pushed open an unlocked gate on the left-hand side of the cash register and gained access to the part of the bottle shop where staff would normally serve customers and alcohol would be served.  This is a part of the bottle shop where customers are not permitted entry.  The appellant took two 700 millilitre bottles of Johnny Walker whisky and then walked over the secured area of the bottle shop and off in an unknown direction.  He was arrested later that day and he participated in an electronic record of interview where he made admissions to the offence of stealing.  When asked why he stole alcohol, his reply was, “I was blind drunk, I was around a lot of family and I just stole two bottles of grog and that was it.

[10]     The appellant had a significant history of stealing.  As a youth in Queensland, he was convicted of stealing in the Mount Isa Children’s Court on 16 April 2005.  He was convicted of receiving stolen property and possessing tainted property in the Mount Isa Children’s Court on 28 January 2006.  He was convicted of stealing and burglary in the Townsville District Court on 23 March 2007.  On that occasion, the appellant was dealt with for a number of other offences, including assault, unlawful use of a motor vehicle, unlawful entry of a vehicle for the purpose of committing an indictable offence, serious assault, and assaulting a police officer.  In relation to all of those offences, he received a total sentence of two years and six months imprisonment and a non-parole period was fixed to expire on 11 July 2007.  On 30 July 2007, he was convicted of unlawful use of a motor vehicle and wilful damage to the property, as well as other offences for which he received total sentences of 20 months imprisonment.  In the Northern Territory, he was convicted on 11 May 2011 with two counts of aggravated unlawful entry with intent to commit an offence, two counts of stealing, one count of aggravated unlawful use of a motor vehicle, one count of unlawfully damaging property, one count of aggravated assault and one count of disorderly behaviour, for which he also received sentences of imprisonment with a non-parole period of eight months.

[11]     Victim impact statements were tendered from Messrs. Maxime and De Sousa, and Constable Vale.  Mr Maxime said that he was shocked and wondered if it is still worth working in Tennant Creek, and no longer felt safe.  Mr De Sousa said that he feared for his safety and thought he was going to be stabbed.  Constable Vale also stated that he was worried for the safety of himself and his family, and that he was not sure if being a policeman was worth the risk to his family.

[12]     So far as the appellant’s personal circumstances were concerned, he was 23 years of age, an Aboriginal who had done a little work on stations but, in the main, had relied upon Centrelink.  The learned Magistrate noted that he is still a young man for sentencing purposes and that he had entered a plea of guilty at the earliest possible occasion.  The learned Magistrate indicated a reduction of a one-third in relation to the stealing offence for his early plea.  There was no specific reduction indicated for the other sentences.

Ground 1 of the appeal – manifestly excessive

[13]     The appellant submitted that the sentences of four months imprisonment for the stealing offence and three months imprisonment for resisting police were each manifestly excessive because the sentences imposed were disproportionate to the circumstances of the offending.  It was also submitted that the antecedent criminal history of the appellant could not be given such weight as to lead to the imposition of a penalty which was disproportionate to the gravity of the offence, because to do so would be to impose a fresh penalty for past offences.  It was put that the learned Magistrate, in sentencing the appellant, particularly to the sentence of four months imprisonment for the stealing offence, gave too much weight to the appellant’s prior history.

[14]     In order to succeed on the ground that a sentence is manifestly excessive, it is well established that the sentence must not only be excessive but manifestly so.  An appellate court does not interfere merely because it is of the view that it would have imposed some lesser sentence.  Although the sentences complained of in both cases were at the high end of the range, I am not satisfied that either of them were manifestly excessive. 

[15]     Nor am I satisfied that the learned Magistrate misused the appellant’s previous history in arriving at those sentences.  It is well established that an appellant’s prior history can illuminate the moral culpability of an offender and the offender’s propensity to commit like offences and, therefore, are relevant to the need to impose both a general and specifically deterrent sentence.  The appellant’s behaviour was not out of character and revealed that he had learnt little or nothing from previous leniencies.  In my opinion, the individual sentences imposed by the learned Magistrate were not so disproportionate to the objective facts as illustrated by the appellant’s moral culpability and propensity to amount to a sentence which was manifestly excessive.  This ground of appeal must be dismissed.

Ground 2 – The imposition in excess of the minimum non-parole period, where the minimum requirement was adequate for that purpose, led to a manifestly excessive sentence.

[16]     In R v Grivell & Mackley,[1] the Court of Criminal Appeal held that there was no rule that, absent specific factors justifying the fixing of a non-parole period longer than the statutory minimum of 50 percent of the head sentence, a court is required to fix the statutory minimum.  The Court said that no such rule or principle exists, and that it would amount to an error of principle for a sentencing judge to approach the fixing of a non-parole period by asking whether there are factors which warrant the fixing of a period in excess of the statutory minimum.  The fundamental task of the sentencing judge is to determine the minimum period that justice requires the offender to serve.

[17]     Having regard to the appellant’s previous history and the lack of any material put before the learned Magistrate to indicate that the appellant was ready to take active steps to reform, I do not consider that the non-parole period fixed by the learned Magistrate was excessive.  It was revealed by counsel for the appellant in the Court below that, on the occasion when he was sentenced to imprisonment in the Northern Territory, he did not get released upon parole which, again, suggests that there was no willingness to reform.

[18]     Counsel for the appellant suggested to the learned Magistrate that he should order a report under s 103 of the Sentencing Act to see if the appellant was suitable for supervision on the basis that the appellant needed to undergo some kind of rehabilitation for his alcohol consumption.  However, he also informed the Court that the appellant did not want to go into BRADAAG, which is an alcohol rehabilitation service in Tennant Creek, because it was too close to his family.  Counsel for the appellant invited the learned Magistrate to consider an alternative in Alice Springs, although there was absolutely no material to indicate whether he was suitable for either of the alcohol rehabilitation centres in Alice Springs, or even willing to undertake them.

[19]     No complaint is now made that the learned Magistrate did not order a report under s 103 of the Sentencing Act

[20]     This ground of appeal must be dismissed.

Ground 3

[21]     Ground 3 complained that the learned Magistrate, when imposing a non-parole period, took into account material which was not before the Court and that he, therefore, failed to accord procedural fairness to the appellant.

[22]     In his sentencing remarks, the learned Magistrate said, after he had imposed the sentences and the non-parole period:

“Your lawyer, Mr Sullivan, made a submission that with your history in the circumstances of this offending, clearly there was an alcohol problem and I should consider obtaining a report under s 103 of the Sentencing Act with a view to partially suspending part of the appropriate sentences so that you can undertake alcohol rehabilitation.  The submission is a good one and a sound one, but I am not satisfied it is the right one in the circumstances of your case.  In my view, rehabilitation can take place in prison.  You will be in prison long enough to be considered for alcohol rehabilitation while in prison.  My understanding is that the minimum period of eight months is required before you are eligible to be considered for rehabilitation of that nature in prison, and that it will be up to you whether you behave yourself, conduct yourself in prison in such a way that you will be free to be released on parole in twelve months time or whether you will continue to serve the whole eighteen months.  That will be entirely up to you.”

[23]     The general principle that a sentencer should not take into account material which is adverse to the appellant and which has not been put before the court, is not in doubt.  However, I am not satisfied that the learned Magistrate approached his task in the manner suggested by the appellant.  It seems to me that the learned Magistrate first fixed what he considered the minimum non-parole period would be, and then observed that this would be long enough for the appellant to undergo rehabilitation courses in prison if he were minded to do so.  His Honour’s remarks were addressed to the appellant personally after he had already indicated the minimum term to which he had arrived.

[24]     In my opinion, this ground of appeal also fails.

Orders

[25]     Appeal is dismissed.

 



[1] (2008) 184 A Crim R 375.