PARTIES:					TUCKER, Max Anthony

						v

						GRAY, Peter Bert

TITLE OF COURT:			SUPREME COURT OF THE 
						NORTHERN TERRITORY

JURISDICTION:				CIVIL

FILE NOS:					No.41 of 1996
						4 of 1995

DELIVERED:				ALICE SPRINGS 25 JULY 1996 

HEARING DATES:				

JUDGMENT OF:				ANGEL J

REPRESENTATION:
Counsel:
Appellant:		Bamber
Respondent:		Fox

Solicitors:
Appellant:		Northern Territory Legal Aid Commission
Respondent:		Director of Public Prosecutions

Judgment category classification:
Judgment ID Number: ang96015
Number of pages: 	10

ang96015

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. 41 of 1996

						BETWEEN:

						MAX ANTHONY TUCKER
							Appellant

						AND:

						PETER BERT GRAY
							Respondent

CORAM:   ANGEL J

	REASONS FOR JUDGMENT

	(Delivered 25 JULY 1996)

	This is both a Justice’s appeal against severity of sentence and a Crown application in respect of a breach of recognisance.  Both matters were heard together.

	The salient facts giving rise to the appeal are as follows. On 28 May 1996, the appellant was sentenced by the learned sentencing Magistrate to ten months’ imprisonment upon a conviction (after a contested hearing upon a plea of not guilty) for unlawful assault with one circumstance of aggravation.  The appellant is a 34 year old Aboriginal man with one prior conviction.  The appeal concerns an assault upon his sister-in-law contrary to s188 of the Criminal Code (NT) 1983.  The fact the victim was a female is the one aggravating circumstance.  She was assaulted in her own home.  The appellant pleaded not guilty to the assault - there being contested versions of the events.  The assault was not so severe as to occasion bodily harm to the victim.  It was however, still an assault of a vicious nature.  The learned sentencing Magistrate found that both the appellant and the victim had been drinking and a verbal altercation had ensued.  The actual physical assault was commenced by the appellant by a punch which hit the victim.  The victim commenced hitting the appellant back resulting in blows being exchanged by the appellant and the victim.  The appellant was both larger and stronger than the victim.  The victim was struck to the ground upon at least one occasion.  The whole event appeared to take between two and three minutes.  The injuries suffered by the victim were abrasions and soreness.  

	The application for an order for breach of bond arises out of the fact the appellant was on a bond to be of good behaviour at the time he committed the assault.  The bond arose from an act of uncontrolled aggression:  in September 1995, the appellant was convicted of a dangerous act whilst intoxicated, such act involving him driving a vehicle into another vehicle which was parked adjacent to a house where his then brother-in-law resided.  That other vehicle was pushed with sufficient force to actually occasion structural damage to the house and minor injury to persons inside caused by flying debris.  The appellant was sentenced on 8 September 1995 to imprisonment for a period of two years for that offence.  The court directed that the sentence be suspended upon condition that the accused enter a recognisance to be of good behaviour for a period of two years with the following conditions:  first, that he abstain from alcohol for 12 months; secondly, that he remain at Hermannsburg for 12 months; and, thirdly, that he not leave Hermannsburg without the permission of the officer-in-charge of Hermannsburg Police Station, excepting that he may leave Hermannsburg without permission of the officer-in-charge, for urgent medical or dental treatment.  Leaving aside questions concerning the effectiveness or validity of the bond, it appears that the assault, the subject of the present appeal, breached all these conditions imposed by the bond.  

	The learned sentencing Magistrate placed great emphasis on the existence of the prior offence (and the sentence consequently imposed) when sentencing the appellant to a ten month term of imprisonment for the assault. 

	I shall deal with the appeal against sentence first.

	The grounds of appeal are as follows.

“A.  That the said sentence imposed by the learned
Stipendiary Magistrate was in all the circumstances manifestly excessive.

	B.	That the learned Stipendiary Magistrate gave
undue weight to the prior convictions of the appellant when sentencing him.

	C.	That the learned Stipendiary Magistrate imposed
a sentence of imprisonment which was not proportional to the objective circumstances of the offence; and

	D.	That the said Stipendiary Magistrate failed to
give due weight to the sentencing principle of rehabilitation.”

	Always in appeals of this nature it serves to be reminded of the role of the appellate court.  In Cranssen v The King 55 CLR (1936) 509 at 519, Dixon J (as he then was), Evatt and McTiernan JJ said:

“It is not enough that the members of the Court would themselves have imposed a less or different sentence, or  that they think the sentence over severe.  There must be some reason for regarding the discretion confided to the Court of first instance as improperly exercised.  This may appear from the circumstances which that Court has taken into account.  They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so.  The Court may have mistaken or been misled as to the facts.  Or an error of law may have been made.  Effect may have been given to views or opinions which are extreme or misguided.  But it is not necessary that some definite or specific error should be assigned.  The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.  In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable or has not been fixed in the due and proper exercise of the court’s authority.”

	King CJ, in what has become the classic case on assaults, Yardley v Betts 22 SASR 108, reminds us that the fundamental principle of the criminal law is its existence for the protection of the community, and, that the protection of the community is served, amongst other things, by the successful rehabilitation of offenders.  He says, supra, at 112:

This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.

	Assaults vary very greatly in seriousness and, more importantly, the degree of injury suffered by the victim is not in every case a satisfactory measure of the gravity of the offence or the culpability of the offender.  These points come to bare on this appeal.

	The appellant is not a man with an extensive prior criminal history.  He has no prior convictions for assault.  However, his one prior conviction does illustrate a tendency, at least expressed on the one occasion, to erupt in a violent manner as a consequence of a stressful situation.  He has now vented frustrations in a violent and unsatisfactory manner, contrary to law, on two occasions.  However, there is a clear distinction is to be drawn on this occasion between the prior offence which involves innate objects and property with consequential unintended danger to members of the public and a deliberate assault on a fellow human being.  As was submitted by Mr Bamber for the appellant, great “store” was placed by the learned sentencing Magistrate on the appellant’s one prior conviction.  The prior conviction was a relevant consideration for the Magistrate but the objective circumstances of the assault indicate it to be an offence substantially different to the contravention of s154 of the Code.  The appellant is not a man to be treated by the courts as one who has developed settled criminal habits; at 34 years of age the appellant has no prior convictions for assault.  The assault was vicious but not overly brutal, given the limited extent of the victim’s injuries, and accepting that the extent of a victim’s injuries are never a complete measure of the gravity of an offence, this was not an assault of the worst kind.  The appellant did not kick the victim on the ground, regrettably, a not uncommon form of assault.  He did not use a weapon.  The assault consisted in punching the victim and punching her again and then again in the course of a man to woman altercation.  It was committed in the heat of an argument - it was not a coldly calculated or premeditated or wanton imposition of the appellant’s will over the victim by force.  The appellant’s violence erupted as a result of stress - it was not mere thuggery.  None of this is to say the assault was not serious - it was.  It was persistent - more than one blow.  But it was not such as to warrant ten months’ imprisonment for this offender, a 34 year old with only one prior conviction, who had a good work record, and whose victim was not seriously injured.  I agree with Mr Bamber, counsel for the appellant, that what was called for was a short sharp sentence of actual imprisonment.  

	Taking account of s58 of the Sentencing Act (NT) 1995, the appeal is allowed - sentence of lower court set aside - substitute therefor a sentence of four months’ imprisonment.

	I turn now to consider the breach of bond.  The appellant, as mentioned, entered in to a bond in place of a two year sentence, imposed for contravening s154 of the Criminal Code.  The power exercised to suspend the sentence of imprisonment upon the appellant entering a good behaviour bond is that in the Criminal Law (Conditional Release of Offenders) Act 1979.  The bond signed by the appellant suffers from a defect.  The defect is such that given different circumstances the bond’s validity might be called in to question.  The bond reads, as far as relevant:

	“Max Anthony tucker of Hermannsburg
was convicted before this Honourable Supreme Court of the Northern Territory of Australia for that

on 23 October 1994 at Alice Springs in the Northern territory of Australia he did commit the following offence(s):

Count No. 1:  Do a dangerous act with circumstances of aggravation 
Contrary to s251(1) & (3)(C) of The Criminal Code

AND Max Anthony Tucker was sentenced on the 8 September 1995 to imprisonment for a period of 2 Years: ... etc.”

	There is an obvious defect in the wording of the bond:  the reference to s251(1) and (3)(c) is clearly wrong.  The conviction was for a breach of s154.  The appellant was sentenced in respect of that conviction.  Supplementary submissions by counsel suggested that ss80 and 81 of the Supreme Court Act (NT) provided this Court with the power to amend the defect.  Section 81 of the Supreme Court Act states:

“81. FORMAL DEFECTS

(1)	A proceeding in the Court shall not be invalidated by a formal defect or by an irregularity, unless the Court is of opinion that substantial injustice has been caused and that the injustice cannot be remedied by an order of the Court.

(2)	The Court may make an order declaring that any proceeding is valid notwithstanding any defect or irregularity.”

	Section 9 of the Supreme Court Act provides that a “proceeding” is to include a criminal proceeding where relevant.  The combination of these two sections in 9 and 81 empower this court to ignore the defect and treat the bond entered in to by the appellant as if there were no formal defect; the interests of justice require it.  To treat the bond as invalid would mean no valid bond had been entered in to and as such the two year term of imprisonment would need to be served.  Such a situation, in the circumstances where no illusion exists as to the document’s true nature, would be untenable.  As to rectification of the defect, I need not consider that in light of my conclusion below.

	The accused has breached all the conditions of his bond.  In dealing with this breach it is open for this Court to proceed either under the Sentencing Act 1995 or the old regime:  see s130(2) Sentencing Act (NT) 1995.  I shall proceed under the old.

	The appellant was in a relationship at the time he was sentenced for breaching s154.  There was a child of that union.  A condition of the bond (that he reside at Hermannsburg) necessarily meant that if the union broke down and the child went with the mother to Alice Springs - effective access would be lost to the child.  This is what occurred.  The appellant was in Alice Springs to see his child.  He was however also breaching the bond by drinking - leading to the assault.  The assault was itself a contravention of the condition to be of good behaviour.  The appellant did not altogether fail to comply with the orders of the learned sentencing Judge; he was ordered to pay a fine of $750.00 and a $30.00 levy.  The appellant complied with that order.  The appellant complied with the bond from 8 September 1995 until 26 February 1996.

	In the circumstances, I order that the  sentence of Mildren J in respect of the s154 offence be further suspended upon the appellant entering in to a bond to be of good behaviour for a period of 18 months commencing upon his release from custody after serving the four months gaol imposed in respect of the assault conviction; $1000.00 own recognisance.

	I will hear parties as to other terms of the bond and as to any question of backdating.

____________________