Green         v The Queen [2013] NTCCA 14

 

 

PARTIES:                                         GREEN, Daniel

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                          COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                              CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                         CA 22 of 2013

 

DELIVERED:                                   31 October 2013

 

HEARING DATE:                            31 October 2013

 

JUDGMENT OF:                              RILEY CJ, KELLY AND HILEY JJ

 

APPEALED FROM:                          Blokland J in proceeding

                                                         SCC 21249609

 

CATCHWORDS:

 

SENTENCING — Aggravated assault — Threatened harm — Knife thrown at child — Sentence of imprisonment for 2 years not manifestly excessive.

 

REPRESENTATION:

 

Counsel:

    Appellant:                                    J W M Adams

    Respondent:                                 W J Karczewski QC

 

Solicitors:

    Appellant:                                    North Australian Aboriginal Justice Agency

    Respondent:                                 Office of the Director of Public Prosecutions

 

Judgment category classification:   C

Judgment ID Number:                      Ril1316

Number of pages:                            9


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Green v The Queen [2013] NTCCA 14

No. CA 22 of 2013

 

 

                                                     BETWEEN:

 

                                                     DANIEL GREEN

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:    RILEY CJ, KELLY AND HILEY JJ

 

REASONS FOR JUDGMENT

 

EX TEMPORE

 

(Delivered 31 October 2013)

 

The Court:

[1]       The appellant has been granted leave to appeal against a sentence imposed upon him on 11 June 2013 in relation to three offences which occurred on 29 December 2012. He was sentenced to imprisonment for a period of 28 months with a non-parole period of 18 months. The principal ground of appeal is that the sentence was manifestly excessive in all the circumstances.

The offending

[2]       On 29 December 2012 the appellant was at a camp in Borroloola. He was intoxicated and angry. He had been drinking throughout the night prior to the offending and into the early morning. He was angry because he was looking for his partner. At about 8 am on that day he went to the house of his sister carrying a 32cm butcher’s knife. Upon arrival at the house the appellant approached a Holden Commodore motor vehicle parked in the front yard and stabbed the front and rear driver’s-side tyres causing them to deflate and rendering them irrepairable. He then entered the house yelling abuse at his sister and her husband as he wanted them to drive him to another location.

[3]       His victim, who is his niece and was aged 12 years, was at the sister’s house. The young girl went to the front door to see what was happening. She opened the door and remained in the doorway. The appellant stood at the top of the veranda steps and she could see the knife in his right hand. He threw the knife with force at the door with the intention of scaring her. The knife ended up embedded in the door above her head. The child was frightened, fearing that the knife might have hit her. The appellant then walked down the stairs, picked up a car battery from the ground, and threw it at a Ford sedan parked nearby. The battery landed on the bonnet of the Ford and dented the bonnet. The appellant picked up another battery and threw it on the bonnet of the Holden Commodore, denting the bonnet of that vehicle. The appellant then departed.

[4]       At the time of the offending the appellant was aged 30 years. His parents, who were separated, both held responsible positions, his mother as an interpreter and his father as a bushfire ranger. The appellant spent his time between Borroloola and Tennant Creek. He went to high school in Tennant Creek and also in Darwin. He left school early and worked with his father. Thereafter he had what the sentencing judge referred to as ‘a reasonable work history’ on cattle stations and as a mine process operator. He had been in a relationship for a year or so.

[5]       The appellant had a problem with alcohol and had previously completed a rehabilitation program. He also had a criminal history commencing in the Juvenile Court in 1998 which extended to nine pages. The history included dishonesty offences and a range of relatively minor offences. However, the history also included a series of offences of violence in relation to which the appellant had been sentenced to terms of imprisonment. In 2000 he was sentenced to imprisonment for four months for assaulting a member of the police force and a further term of seven days for assault. In 2007 he was sentenced for a range of offences including aggravated assault (four months), assaulting a member of the police force (one month), disorderly behaviour (seven days), resisting police (10 days), and further assaulting a member of the police force (four months). In 2009 he was convicted of three offences of aggravated assault and was sentenced to imprisonment for periods of two months, four months and four months. In October 2010 he was convicted of assaulting a member of the police force and sentenced to imprisonment for three months.

[6]       In 2013 the appellant pleaded guilty to three offences arising out of the events described above. Count 1was that he unlawfully assaulted his niece, a female under the age of 16 years, with a knife. The maximum penalty for this offence is imprisonment for five years. Count 2 was that he caused damage to the Holden Commodore, for which offence the maximum penalty is imprisonment for 14 years. Count 3 was that he caused damage to the Ford sedan and, again, the maximum penalty is imprisonment for 14 years.

[7]       The appellant was convicted on each count. In relation to count 1 the appellant was sentenced to imprisonment for two years. In relation to counts 2 and 3 he was sentenced to an aggregate term of imprisonment of four months. The total sentence was to imprisonment for 28 months with a non-parole period of 18 months. In addition an order for restitution was made in relation to counts 2 and 3.

The grounds of appeal

[8]       The principal grounds of appeal, and the major thrust of the submissions made on behalf of the appellant, were that the sentence of imprisonment for two years for the aggravated assault was manifestly excessive as was the overall sentence of imprisonment of 28 months. In addition it was submitted that the non-parole period of 18 months was manifestly excessive. In support of those grounds, the appellant complained that the sentencing judge was in error in finding that the assault was ‘a very serious aggravated assault’.

[9]       A proposed ground of appeal that her Honour did not allow sufficient discount for the plea of guilty entered by the appellant was abandoned. There was no complaint regarding the sentences imposed in relation to the two counts of causing damage to the motor vehicles.

The level of seriousness of the offending

[10]    It was submitted on behalf of the appellant that various factors made this offending less serious than might otherwise have been the case. First was the fact that no injury was suffered by the victim and no injury was intended to be inflicted upon her. The threat was of short duration. Counsel for the appellant also relied on a reference from the appellant’s brother describing him as a ‘family oriented person’ and ‘a supportive uncle’, on the fact that he had no prior convictions for violent offences against children, and on the fact that his violent conduct before he threw the knife was not directed at the child. He submitted that the child would have known these things, the implication being that this would somehow have made her less fearful. We reject this submission. The child had a knife thrown in her direction, forcefully, by an out of control intoxicated man ‘on the rampage’. It was intended to scare her and it did.

[11]    It was submitted that her Honour erred in describing the assault as ‘very serious’ and it was argued that there was ‘a serious threat only but the lack of injuries, the lack of intent to cause any injuries and the short duration of the event take the matter out of the category of a ‘very serious aggravated assault’.

[12]    Reference to the sentencing remarks reveals that her Honour in fact said:

On any view of the facts, this is a very serious aggravated assault, although it is true as pointed out, that the victim was not physically injured, in terms of an assault by way of a threat, this was extremely serious. She was a young victim, was obviously scared and frightened and the level of risk, given Mr Green was intoxicated and threw a knife, is extremely high.

[13]    In our opinion that is a fair assessment of the seriousness of the offending. It is apparent that in referring to the assault as ‘extremely serious’ and ‘very serious’ the judge was referring to ‘an assault by way of a threat’.

Manifest excess

[14]    It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be 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 or the sentence itself may be so excessive as to manifest such error. In relying upon a ground of manifest excess it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.

[15]    In our opinion the aggravated assault was serious offending and the description provided by her Honour was apt. Whilst the young victim was not injured, she was subjected to a terrifying experience when the drunken assailant threw a 32cm butcher’s knife towards her. The force of the throw was sufficient to cause the knife to become embedded in the door near to where the victim was standing. The actions of the appellant were extremely dangerous. The knife was thrown with force by a drunken angry man towards a young and vulnerable victim who was a mere bystander. She did nothing to provoke the appellant. Whilst the intention of the appellant was to frighten the victim, it was good luck rather than good management that more serious consequences did not result from this highly dangerous action.

[16]    The appellant was a man with a history of violence including violence against women. His prior offending included convictions for assault with a weapon. He was not a man of prior good character. On this occasion he carried the weapon to the location at which the assault occurred. He used the weapon to stab the tyres of a motor vehicle and then forcefully threw it in the direction of the child. This was a violent incident. The appellant had no hesitation in using this dangerous weapon in his drunken and angry state.

[17]    The appellant had a history of alcohol-related offending. He had successfully completed a residential rehabilitation program as a term of an earlier suspended sentence. Notwithstanding that fact this offending occurred when he was intoxicated. Previous terms of imprisonment and intensive alcohol rehabilitation did not serve to deter him from the offending.

[18]    The regrettable fact is that drunken violence, including involving the use of weapons, is disturbingly prevalent in the Northern Territory. This is yet another example of impulsive alcohol-fuelled violence involving the use of a weapon against a vulnerable member of a remote community.

[19]    In addition to the assault the appellant damaged two motor vehicles by stabbing the front and back tyres of one vehicle and, on two occasions, throwing batteries onto the bonnets of the two identified vehicles. He caused significant damage. All of the offending occurred on the one occasion and there was concurrency allowed by her Honour through the imposition of an aggregate sentence to reflect that fact.

[20]    In our opinion it has not been demonstrated that the sentence in relation to the aggravated assault, the total sentence imposed or the non-parole period were manifestly excessive.

[21]    In relation to the complaint that the non-parole period of 18 months was manifestly excessive the appellant submitted that the non-parole period should be adjusted if this Court allowed the appeal in respect of the head sentence. It was not submitted that the non-parole period was otherwise an error of the sentencing judge.

[22]    In the course of argument the application of s 52(3) of the Sentencing Act 1995 (NT) to counts 2 and 3 was discussed, in light of the fact that count 1 was a violent offence. There was no ground of appeal related to the application of that section or to the sentence imposed for counts 2 and 3. Counsel agreed that any error in the application of the provision would not affect the appropriateness of the sentences in relation to those counts, merely their structure. In the circumstances we do not address this issue.

[23]    We see no error on the part of the sentencing judge. The appeal is dismissed.

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