Kurawul v Hales [2003] NTSC 95

PARTIES:	JOACHIM KURAWUL

	v

	PETER HALES

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	JA88/03 (20307158 & 20307150)

DELIVERED:	5 September 2003

HEARING DATES:	7 August 2003

JUDGMENT OF:	THOMAS J

REPRESENTATION:

Counsel:
	Appellant:	S Barlow
	Respondent:	T Austin

Solicitors:
	Appellant:	North Australian Aboriginal Legal Aid Service
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:	tho200328
Number of pages:	9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kurawul v Hales [2003] NTSC 95
No. JA88/03 (20307150 & 20307158)

	BETWEEN:

	JOACHIM KURAWUL
	Appellant

	AND:

	PETER HALES
	Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 5 September 2003)

[1]	This is an appeal against sentence.  The appellant had entered pleas of guilty to three charges of unlawfully damaging property contrary to s 251(1) of the Criminal Code.  The maximum penalty for each of these offences is two years imprisonment.  All three offences relate to two separate incidents which occurred on 11 May 2003.
[2]	The agreed facts in the Court of Summary Jurisdiction and as found by the learned stipendiary magistrate are as follows (tp 2 - 3):
“… at 3:45 am on Sunday 11 May this year, the defendant was in the vicinity of Shell Truck City in an intoxicated state.  He walked over to a nearby tree and broke off two branches.  One branch was about two metres in length and a diameter of about five centimetres; the other one was 80 centimetres in length and the diameter about three centimetres.
He took both branches to Collin’s Cars & Commercials.  He then used the larger branch to smash the front office window of the premises.  The damage value was $1000.  He then walked over to a vehicle in the car yard, which was a Mitsubishi Lancer, and, using the smaller branch, he struck the front left-hand corner of the bonnet causing $200 worth of damage.
He then threw both branches on the ground, walked across Berrimah Road towards Shell Truck City.  Witnesses directed police to this area and he was arrested a short time later.  He took part in a record of interview, made full admissions, stating, ‘Because I was full-drunk’.  He stated he knew it was the wrong thing to do and he didn’t have permission to damage any of the property.
…
…  In relation to the charges on the second file, on Sunday 11 May 2003 the defendant had been drinking at Knuckey’s Lagoon.  Later that evening at approximately 8:10 pm the defendant was in the dining section of Shell Truck City.  He was intoxicated and with another male and female.  They were asked to leave the premises.  The defendant then left the shop with the other two.
Approximately 10 minutes later the defendant returned alone with a rock approximately 12 centimetres by 9 centimetres.  The defendant threw the rock through the window from the outside of the dining section.  He threw it through the windowpane on the left-hand side of the electronic entry doors.  He then attempted to push the remainder of the window in, cutting his hand in the process.
He was restrained by customers in the shop until police arrived.  He was arrested.  He took part in a record of interview.  He said, ‘I was drunk.  I was mad.  I smashed it with a rock, a big one’.  Again he had no permission to damage the property ….”
[3]	The appellant was taken into custody on 11 May 2003 and subsequently appeared before the Court of Summary Jurisdiction on 12 May 2003 when he entered pleas of guilty to each of the charges.
[4]	He was sentenced on the first two charges to an aggregate sentence of two months imprisonment to commence on 11 May 2003.  On the third charge he was sentenced to imprisonment for three months which was to be partly concurrent with the sentence for the first two offences and was to commence on 18 June 2003.  An order was then made that the sentence be suspended on 9 July 2003.  The learned stipendiary magistrate then made an order pursuant to s 40(6) of the Sentencing Act specifying a period of 20 months during which the appellant was not to commit another offence punishable by imprisonment if he was to avoid being dealt with under s 43 of the Sentencing Act.  The total head sentence was suspended after eight weeks and three days.
[5]	The appellant spent 23 days in custody.  I am informed he was released on bail on 2 June 2003 pending this appeal.
[6]	It is not in dispute that the appellant was arrested on 11 May 2003 following the commission of the first two offences.  He was released on bail.  He committed the third offence later on the same day and whilst on bail for the first two offences.  It is not in dispute that the commission of offence number 3, whilst on bail for the first two offences, aggravates the offending for sentencing purposes (Richards [1981] 2 NSWLR 464 Street CJ at 465 cited with approval in Innes Wurramara v R per The Court (1999) 105 A Crim R 512 at 524).
[7]	The Amended Grounds of Appeal set out the following grounds:
“1.	That the sentences are manifestly excessive.
2.	That the learned Magistrate gave insufficient weight to the appellant’s gap in offending history.
3.	That the learned Magistrate gave undue weight to irrelevant matters.
4.	That the learned Magistrate erred by failing to properly consider whether to fully suspend the sentences of imprisonment.”
Ground 1:  That the sentences are manifestly excessive.
[8]	The appellant bears the onus of showing that the sentencing discretion of the learned stipendiary magistrate was improperly exercised and that the sentence is manifestly excessive.
[9]	The test is set out in Cranssen v The King (1936) 55 CLR 509 at 519 - 520:
“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.  ...”
[10]	In addition to the facts of the charge there were a number of other matters relevant to the imposition of the sentence.
[11]	Mr Barlow on behalf of the appellant, provided some sentencing statistics from New South Wales, for the offence of maliciously destroy or damage property in the period from 1999 - 2002.  These statistics covered 9248 offenders with a prior criminal history.  Ninety one per cent of these received a fine, bond or non custodial order.  Six per cent received a term of imprisonment.  Of the six per cent who received imprisonment sixty six per cent received a head sentence of three months or less.
[12]	Whilst these statistics are of some assistance, there are limitations to the amount of weight I can attach to these figures.  This is because there is a great deal of background information that is not known including the facts in respect of each offence, the extent of prior convictions of the offenders and the value of the damage inflicted.
[13]	On the aspect of comparative sentences I was referred to a decision of Mildren J, Gumbinyarra v Teague JA93 of 2002, delivered 20 March 2003.  Mildren J at paras 21 and 22:
“[21]	No statistical material was put before this Court by counsel for the appellant as to the sentences commonly imposed in the Court of Summary Jurisdiction for an offence against s 251(1) of the Criminal Code.  The maximum penalty fixed by law is imprisonment for two years.  In Alfie Rory (1992) 64 A Crim R 134, Kearney J was referred to some statistical material relating to the offence.  As his Honour there noted, at p 138, it is desirable that detailed statistical sentencing material be made available to this Court when sitting on appeal from sentences imposed by the Court of Summary Jurisdiction.  In that case, the sentencing statistics were gathered over a 15 month period from February 1991 to May 1992 from the Alice Springs records of CAALAS.  His Honour observed at p137:
‘The penalties imposed ranged from compensation orders under s 393(1)(c) of the Code, release on good behaviour bonds pursuant to s 5(1)(a) of the Criminal Law (Conditional Release of Offenders) Act 1971 (NT), fines ranging from $150 to $500 sometimes coupled with restitution orders, community service orders of 24 hours, through suspended sentences of imprisonment of one to two months, to sentences of immediate imprisonment ranging from seven days to three months.  Clearly, a very wide range of penalties.  In general, fines were imposed where there had been no history of prior offending.  In the five cases where sentences of immediate imprisonment were imposed all the defendants had a record of prior offending.  In the single case where a sentence of three months immediate imprisonment was imposed ... the defendant had two similar priors ... (and) it involved a circumstance of aggravation under s 251(2)(c), so the maximum punishment was seven years imprisonment.’
[22]	Although this material is now over ten years old and is limited to the Alice Springs area, it was not suggested by counsel for the respondent that this was not a fair summary of the current position Territory-wide.  On that basis, it can be seen that the sentence imposed on the appellant was at the top of the range for a case involving prior convictions without circumstances of aggravation.”
[14]	The offender in Gumbinyarra v Teague (supra) was a 33 year old unemployed aboriginal man.  He pleaded guilty to one count of criminal damage and one count of trespass.  The damage amounted to $319.  He had 47 prior convictions.  There was a gap of eight years since his last conviction.  He was sentenced to four weeks imprisonment on the offence of criminal damage.  On appeal this sentence of four weeks imprisonment was fully suspended.
[15]	In the appeal before this Court the appellant does have prior convictions.  There are no aggravating circumstances relevant to the offences.  The maximum penalty under s 251(1) of the Criminal Code is two years imprisonment.
[16]	There are a number of mitigating circumstances to be taken into account.
[17]	The appellant entered pleas of guilty at his first court appearance which was the day after the offences were committed.  He was cooperative with the authorities.  He made full and frank admissions to police.  He was entitled to substantial discount for the plea of guilty entered at the first possible opportunity.
[18]	The appellant does have prior convictions all of them between 12 February 1998 and 30 December 1998.  He was born on 1 January 1969.  He is now 34 years of age.  It is relevant to note that he grew up at Wadeye.  His first conviction for any offence was at the age of 29.  Since the spate of convictions imposed in 1998, he has not been in further trouble and has no convictions for any offences in the intervening period of almost five years.  He is to be given credit for this gap in offending (Bamaga v Trenerry (1992) 111 FLR 355 Martin J (as he then was) at 360):
“…  The fact that an offender who has a criminal record has made an effort to ‘go straight’, ought to carry considerable weight as a mitigating factor, though it may not amount to that which would normally be given in favour of a first offender.  If those with a bad record feel that there is to be no benefit from attempts at rehabilitation then why should they bother?  It is in the interests of the community that rehabilitation be encouraged.”
[19]	The appellant in this matter has a good work history of employment at Wadeye and Snake Bay.  He planned to return to Melville Island to avoid alcohol.  This Court was informed that the appellant having been released on bail pending the appeal had in fact returned to Melville Island.
[20]	The offences were committed at a time when the appellant was under the influence of alcohol.  The consumption of alcohol does not excuse his offending.  There appears to have been no planning or premeditation in the commission of the offences.
[21]	The appellant was sentenced effectively to a head sentence of four months and one week suspended after eight weeks and three days.  He served 23 days in custody.  I take time spent in custody into account.
[22]	Applying the test in Cranssen v R (supra), I have come to the conclusion the sentence in relation to the offence and the circumstances of the case are such as to afford convincing evidence that in some way the exercise of the discretion has been unsound and was manifestly excessive.  Accordingly, the appeal is allowed.
[23]	In these circumstances I propose to set aside the orders of the learned stipendiary magistrate and resentence the appellant.
[24]	With respect to Count 1 and Count 2, the appellant is convicted and sentenced to an aggregate sentence of one month imprisonment.
[25]	On Count 3 the appellant is convicted and sentenced to two months imprisonment concurrent with Counts 1 and 2.  This is a head sentence of two months imprisonment.  This sentence is suspended and the appellant released after serving 23 days imprisonment upon condition he be of good behaviour for 12 months.  Pursuant to s 40(6), I fix a period of 12 months from the date of this order during which the appellant is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 43 of the Sentencing Act.
[26]	Taking account of the time already spent in custody, I backdate this sentence to 11 May 2003.
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