Brown v Burgoyne [2003] NTSC 60

PARTIES:	BROWN, Andrew

	v

	BURGOYNE, Robert Roland

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA61 of 2002

DELIVERED:	30 May 2003

HEARING DATES:	8 May 2003

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

APPEAL - Justices appeal – appeal against sentence – manifestly excessive – sentencing discretion – totality principle – disregard for defendant’s age and lack of relevant prior convictions – jurisdictional limit.

Criminal Code 1999 (NT), s 188(2); Sentencing Act 1995 (NT), s 50

McInerney (1986) 28 A Crim R 318 at 329, referred; Golder v Pryce (1997) 5 NTJ 2684 at 2696; Mason v Pryce (1988) 34 A Crim R 1, referred.
Crannsen v The King (1936) 55 CLR 509 at 519; Raggett, Douglas & Miller v R (1990) 50 A Crim R 41 at 46; Jack v Dixon [2003] NTSC 58, 30 May 2003, applied.

REPRESENTATION:
Counsel:
	Appellant:	D Bamber
	Respondent:	R Noble

Solicitors:
	Appellant:	CAALAS
	Respondent:	DPP

Judgment category classification:	B
Judgment ID Number:	mar0325
Number of pages:	9

mar0325

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Brown v Burgoyne [2003] NTSC 60
No. JA 61 of 2002

	BETWEEN:

	ANDREW BROWN
	Appellant

	AND:

	ROBERT ROLAND BURGOYNE
	Respondent

CORAM:	MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 30 May 2003)

[1]	Appeal against sentence.  On 5 November 2002 the appellant pleaded guilty before the Court of Summary Jurisdiction sitting at Alice Springs, relevantly, for that on 27 May 2002 he assaulted Deborah Williams, a female, and for that on 31 October 2002 he again assaulted her by striking her over the left side of the forehead with a bottle, with appropriate circumstances of aggravation, and, finally, that later on 31 October 2002 he assaulted Pauline Moody with circumstances of aggravation, she was a female and a member of the public service acting in the execution of her duty, namely a nurse.
[2]	For the first attack upon Ms Williams, the appellant’s wife, he was sentenced to three months imprisonment which was suspended forthwith and for the second such assault, sentenced to four months imprisonment.  For the assault upon the nurse he was sentenced to 18 months imprisonment cumulative on the previous sentence, leading to an effective sentence of 22 months imprisonment.  His Worship fixed a non-parole period of 12 months.
[3]	The appeal does not take issue with the sentences imposed in relation to the assaults upon the appellant’s wife, but concentrates upon the sentence imposed in respect of the assault of the nurse and the accumulation of that sentence with the earlier period of sentence to imprisonment.
[4]	The admitted facts in relation to the assault upon Ms Moody are that she was treating Deborah Williams at the health clinic for the injury she sustained as a result of the assault upon her on that day.  The appellant came to the clinic, intoxicated and angry.  He wanted to gain entry and began yelling loudly for the persons inside to allow him in.  His mother opened the door, he entered and then chased Ms Moody around the inside of the clinic for a time until she managed to escape and go outside.  However, she tripped over in soft sand and the appellant caught her and kicked her in the lower torso on at least two occasions.  She managed to rise to her feet, and began running, but the appellant again caught her, pushed her over and began kicking her whilst she lay on the ground.  
[5]	Whilst the appellant was kicking her on the ground on this second occasion he said, “You sent my brother to Alice Springs to be murdered”.  Someone intervened and the appellant stopped attacking the nurse and fled.  Later that day the police arrested him.  He declined to partake in an interview.  Ms Moody received minor soft tissue injury and was traumatised by the incident.
[6]	Counsel for the appellant before his Worship explained why it was that his client had told the nurse “You sent my brother to Alice Springs to get murdered”.  The brother had been suffering from a mental illness for which his family had sought traditional treatment in his community.  He was also being treated at the clinic and it was decided that he should be sent to Alice Springs.  The family were against that, they wanted him to stay with them.  However, the brother did go to Alice Springs and there was some animosity from the family because of the health service decision to do that.  The brother was killed in Alice Springs in circumstances which have been described as murder, and the family believed they bore some responsibility for that because had he not been sent to Alice Springs then perhaps it would not have occurred.  When the appellant became intoxicated on this occasion and found himself at the clinic he was overwhelmed by emotion surrounding his brother’s death, and feeling that in some way the health services were responsible.  He did not have anything against the nurse in particular, but he took it out on her.  That was why he acted in the way that he did.
[7]	In discussion between his Worship and counsel it emerged that the killing of the brother had taken place perhaps a week or so before the attack upon the nurse, but see later.  
[8]	During the course of submissions on 5 November counsel put to his Worship that an appropriate sentence for his client, being a young man, aged 21 without any prior convictions, would be a sentence to imprisonment suspended after a fairly short time.  His Worship indicated that he would probably approach it like that, but he needed to think about it for a while, and to work out “the nuts and bolts of his sentence”.  His Worship adjourned and resumed on 7 November 2002.  I do not consider that his Worship’s remarks precluded him from imposing the sentence he did without being obliged to invite further submissions from the appellant.  It is not suggested that he erred in his statement of the background facts, but I note that his Worship introduced some new material which did not appear in the course of submissions:
“In Alice Springs about one month before this offence occurred the brother was tragically knifed to death on the footbridge over the Todd River.  In his intoxicated condition the defendant somehow, four weeks after the event, decided to blame Ms Moody for his brother’s death.  It should be pointed out that the brother’s killer had been released from custody to go to Nyirrpi to receive payback in what is sometimes described as a ceremony of atonement.  That ceremony had taken place and the real person responsible for the brother’s death had been dealt with in the Aboriginal way.  One cannot make sense therefore of the stated reason for the defendant attacking Ms Moody.”
[9]	His Worship concluded by saying that the courts must do what they can to protect nurses and the only way that that could be done was to impose such a sentence on those who attack them as will tend to discourage those minded to imitate them.
[10]	Beyond the circumstances of the offences his Worship said little about the appellant, beyond noting prior offences, which were of no relevance, and that he was aged 21.  He said that he discounted the penalties by 25 per cent for the early plea of guilty, particularly in relation to the events on 31 October 2002.  No express reference was made to the issue of personal deterrence nor the appellant’s prospects for rehabilitation.
[11]	The appellant submits that looking at the sentence imposed, his Worship must have erred in not giving sufficient weight to the fact that the appellant had no prior convictions for violence when he came before the court on 5 November 2002.  Thus he did not have the benefit of an existing admonition from the court for such offending.  Reference was made to what fell from Cox J in McInerney (1986) 28 A Crim R 318 at 329:
“A conviction is a formal and solemn act marking the court’s, and society’s disapproval of a defendant’s wrongdoing, so that a prior offence may not assume quite the same significance as a prior offence coupled (by the time the instant offence is committed) with a prior conviction.”
[12]	A submission along the same lines was received by Kearney J in Calder v Pryce (1997) 5 NTJ 2684 and at p 2696, and having referred to that passage from McInerney his Honour said:
“However, I consider that it is clear from his Worship’s remarks that he made no error in this respect.  A sentencing court is entitled to look at all relevant aspects of a defendant’s behaviour up to the time he is sentenced, and that is what his Worship did.”
With respect, I agree, but whether or not his Worship gave sufficient weight to the absence of prior convictions cannot be determined, except as a possible explanation if the sentence is viewed as being manifestly excessive, (per Kearney J at p 2695).
[13]	The same might be said of the submission that his Worship erred in giving inadequate consideration to the appellant’s youth.  At the age of 21, it was open to his Worship to allow a degree of leniency in the appellant’s favour on account of his immaturity.  His Worship certainly noted his age and I am entitled to infer that would not have been done unless his Worship considered it to be relevant to the exercise of his sentencing discretion.  Whether that factor was given sufficient weight in favour of the appellant can similarly only be seen as being a possible explanation should it be found that the sentence was manifestly excessive.
[14]	His Worships remarks regarding protection of nurses in isolated communities were apt – they are a precious resource.  Their calling is to care for the health needs of the members of the community.  A female nurse is particularly vulnerable.  Assaults by a man on a woman occasioned by emotion induced by excessive alcohol are deplorable criminal acts.  The only reason for the assault upon Ms Moody was because she was a person who the appellant wrongly thought had in some way been responsible for the death of his brother because of the effects of alcohol.
[15]	It is plain that people like Ms Moody are entitled to expect that the courts will do what they can to protect them from this sort of conduct.  Right minded members of the community would expect that the person who has caused it to lose the services of a nurse be punished.  His Worship was undoubtedly responding to those objectives when he sentenced the appellant.  There was a need for significant weight to be given to general deterrence, and, in the case of the appellant, personal deterrence to a degree.  His prospects for rehabilitation should have been taken into account.
[16]	In my reasons for judgment in Jack v Dixon [2003] NTSC 58 delivered today I have endeavoured to show that it is open to a Magistrate to impose a sentence to imprisonment up to the jurisdictional limit of two years, notwithstanding that before allowing for mitigatory circumstances, the sentence in contemplation exceeded that limit.
[17]	Accordingly, a stated discount of 25 percent of the sentence for a guilty plea does not necessarily mean that no mitigating effect was given on account of the lack of prior relevant convictions and the age factor.  The learned Magistrate could have permissibly had a sentence in mind in excess of two years imprisonment, but, by a combination of the discount for the plea and other mitigating factors, arrived at the sentence of 18 months imprisonment. If that was so, then I consider that too much weight must have been given to the circumstances of the offence when it is taken into account against a maximum penalty of five years imprisonment.  On the other hand, if his Worship contemplated starting at two years, then no allowance has been made for mitigatory factors other than the plea.
[18]	In my reasons in Jack v Dixon I have recorded what I consider to be the guidance available to assist a sentencer in deciding whether to depart from the rule of concurrency provided for in s 50 of the Sentencing Act.  Acknowledging the difficulties, it nevertheless seems to me that it was within his Worship’s discretion to depart from the rule in relation to the two assaults on 31 October.  They were directed at different women, in different circumstances, at a different place and for different reasons.  The only common denominator was the appellant’s drunkenness.  In that decision I have also endeavoured to draw attention to the principles of totality and the requirement that a sentencer step back from accumulated sentences and consider whether the total is proportional to the overall offending.  It is not apparent that his Worship did that.  Reference was also made to the exponential effect of accumulation.
[19]	Counsel for the respondent rightly reminded me that the onus is upon the appellant to show that the sentencing discretion of the learned Magistrate was improperly exercised (Crannsen v The King (1936) 55 CLR 509 at 519).  An appellate court can only interfere if there is some reason for regarding the discretion conferred upon the Magistrate as having been improperly exercised (Mason v Pryce (1988) 34 A Crim R 1).  The court can only interfere on the grounds that the sentence was manifestly excessive if it is convinced that that is the case, (Raggett, Douglas and Miller v R (1990) 50 A Crim R 41 at 46).
[20]	The sentence of 22 months imprisonment strikes me as being excessive, with respect to his Worship.  I consider that that is because the sentence of 18 months imposed for the assault upon the nurse was not arrived at after giving sufficient weight to the plea and other mitigating circumstances and because of the failure of his Worship to step back and consider whether the overall sentence was too much.
[21]	The sentence to imprisonment for 18 months for the assault on Ms Moody is quashed and I substitute a sentence of 14 months imprisonment.  Applying the totality principle, that sentence is to run concurrently with the sentence of four months for the assaults upon Ms Williams to the extent of two months (Sentencing Act s 51).  That is, it will commence two months after the first sentence commences, giving an effective sentence of 16 months.  I fix the period during which the appellant will not be eligible to be released on parole at eight months.
[22]	I will hear counsel as to the date upon which that sentence is to commence.
-------------------------------------------