IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS
JUSTICES APPEAL

BETWEEN:

(tho92011)

LAWRENCE JABANUNGA WOOD
Appellant
AND:
JOHN HENRY CHUTE
Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT
(Delivered 29 January 1993)

This is an appeal pursuant to s163 of the Justices Act from a decision of a magistrate.

On 7 October 1992 the Alice	Springs	Court	of offence that on 4 August

appellant was convicted in the Summary Jurisdiction for an 1992 at Alice Springs he did

have	carnal		knowledge	of contrary	to	section	138

an	animal,	namely	a	dog, of	the	Criminal	Code.		The

appellant pleaded guilty to the charge. The following facts were admitted to by the appellant through his counsel as being a correct statement of the facts in support of the charge. The agreed statement of facts put to the magistrate are as follows:

"On Tuesday 4 August 1992 at 20 past 3 in the afternoon the defendant, Lawrence Jabanunga Wood,  was in the communal yard at the Cawood Court flats. he was kneeling down in full view of several flats with his trousers down. He was holding a female dog by the hips just in front of him.  The defendant  then took his penis out of his pants and inserted it into a rear orifice of the dog. The defendant then had intercourse with the dog.

This	continued	for some minutes children and a woman who were in

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in	front	of	some the area and saw

what the defendant was doing. The woman yelled  at the defendant to stop and then went and rang the police who attended a short time later. The  defendant was pointed out to the police. He had a short conversation with them. When asked  what he  had been doing with the dog the defendant  replied; 'I been finish up.' The defendant was then arrested and conveyed  to the police station and took part in a record of conversation. He made full and frank admissions to the offence."

A record of prior convictions was tendered to the magistrate. This record indicates the appellant had been convicted on 13 May 1992 for Drive Exceed .08 nd other traffic offences. He had convictions for Giving False  Name and Drink Within 2 kms on 26 November 1991, traffic convictions on 8 November 1991 and a conviction for Offensive Behaviour on 21 July 1981.

The appellant has not previously been sentenced to a term of imprisonment.

Also tendered to the magistrate was a letter dated
17 September from Dr Bill Williams medical officer  for the Central Australian Aboriginal Congress Inc. relating to the appellant's problem with alcohol.

On 7 October 1992 the magistrate convicted Lawrence Jabanunga Wood and sentenced him to a period of 14 days imprisonment.

The appellant did not seek to adduce any further evidence on the appeal.

The appellant appeals against that sentence. The grounds of the appeal being that:

The said	sentence	is	manifestly	excessive	in light of the following principles of sentencing

general deterrents
special deterrents

That the learned Stipendiary Magistrate erred at law in treating the offensiveness aspect as deserving of imprisonment.

With regard to ground ( 1) it was accepted by the magistrate that on the relevant date Lawrence Wood was "disinhibited" by alcohol, he had a history of alcohol consumption and may have been affected by medication.

Counsel for the appellant argued that people with an abnormality of mind do not constitute an appropriate medium for making an example to the public R v Anderson (1981) VR 155, R v Roadley (1990) 51 A Crim R 336.
Counsel for the appellant submitted	the appellant	is a
chronic alcoholic, under the influence of heavy doses of alcohol on an almost daily basis. He sets himself apart from the general community and therefore is not an appropriate medium for setting an example to that community.

The authorities referred to by counsel and mentioned above, involve accused persons with intellectual impairments or mental illness. I find those cases difficult to equate with a person who commits an offence because they are affected by alcohol. Being affected by alcohol does not set an accused person apart from the general community. This court is well aware that a very substantial proportion of offences dealt with by the court are committed by persons under the influence of intoxicating liquor often in combination with medication or other drugs. The court is also aware that many persons in the community become intoxicated by alcohol but do not commit offences whilst under the influence of alcohol and/or medication. I do not accept the argument of counsel for the appellant that there is evidence to support a finding that the appellant is a person set apart from the general community because he is a chronic alcoholic. However, it is not necessary to decide the ground of appeal on that point because the magistrate

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made	it	quite	clear significant		factor. magistrate	referred

that		general	deterrence	was not a In	his	reasons	for	sentence	the
to	the	fact	that	in	his	years	as	a

magistrate  it	was the first time he had dealt with anyone
for	such		an	offence.			It		is	obviously		not		a	prevalent offence	before	the		courts.				On		my		reading		of	the magistrate's			reasons		he			did		not	consider		general deterrence	was an important			factor	but  did	consider	the sentence		should		be	such	as to deter this particular defendant from offending again. The magistrate placed particular  emphasis  on   the   fact   that   the   act   was cornmi tted  in  an  open  area,  near  a  block  of  flats,  in broad daylight and his activity observed by a number of children and at least onewoman.

With	regard		to	the	aspect	of	special	deterrence, counsel	for	the	appellant argued that		the magistrate had mentioned the	aspect of rehabilitation in that he stated:

"There is		no  real opportunity  for	me to	sentence him in  a way  which  would  require him to		undergo alcohol rehabilitation,	and of course	it		raises	the real need  for	an	institution  of  that type  to		be in Alice Springs."

Counsel  argued  that  the  court  should   not   surrender its "duty  to  act  judicially  in  order  to  supplement  the conununi ty' s social services which society has failed to

provide	in	adequate measure."
336 at	342.

R  v	Roadley	51  A  Crim	R

Counsel further argued that the magistrate should have made an attempt to discover what options for rehabilitation were actually available  in  Alice  Springs, if necessary, by calling for a pre-sentence report.

The   difficulty	I	have	with	that	submission		is	that no material	was put  to		the  magistrate		by counsel			in		the Court	of	Summary		Jurisdiction	as  to  what	rehabilitation was  available.		Lawrence	Wood	had	not			been		assessed		for rehabilitation	and in   fact		counsel		for			Mr		Wood	did		not make		any submissions to the magistrate that rehabilitation for the defendant in respect  of  the defendant's problem with alcohol would be appropriate.
When the		matter  came  before  this court on appeal,	counsel for	the	appellant	in		response		to		an	enquiry	from	the court,	listed three places in Alice Springs where  persons can	attend		for	counselling	in	respect		of	their		alcohol problem.			However,		no		submission	was made	or		further evidence		put	to		this		court		on appeal	that Mr Wood had been assessed by one or other of  the  organisations  as  to his  suitability  for  anyparticular  program  or  that  any of the  organisations  ref erred  to  by  counsel  for  the appellant was prepared  to  take  the  appellant  into whatever rehabilitation program they had to offer.  The normal practice in the Court of Summary Jurisdiction,  and  as  far  as  I  am  aware  also  in  this  court,  is  to  have  a letter  or  some  form   of   acknowledgrnent   from   the appropriate organisation that they would be prepared to accept the offender for counselling or into a particular program, before the court makes any order that imposes an obligation not only on the offender but also on the particular   organisation.   Even   more    significantly, counsel  for  the  appellant   submitted   rehabilitation   for this particular offender was not relevant. Counsel for

the appellant submitted to this court on 9 December 1992 (transcript page 9):

"It would be my submission that rehabilitation is not relevant partly because his criminal record doesn't show that this is a situation that's likely to recur. It's never happened before. It's not likely to happen again. He did touch on that issue though in his sentencing in respect of deterrence and I'd also argue that deterrence are not relevant in sentencing here either."

It is my understanding of the submissions made by counsel for the appellant that the appellant himself does not consider rehabilitation is appropriate as  an option in the sentencing discretion.

In those circumstances I am of the opinion that the magistrate did not err by failing to explore more fully the prospects of rehabilitation.

Certainly the appellant himself appears to believe that rehabilitation is not appropriate.

With regard to ground (2) of the appeal, counsel for the appellant argued that the magistrate did not fully address the question of why he found that the act was so particularly offensive. That there is no evidence of community outrage at this type of event. Counsel for the appellant referred to the following decisions of the Supreme Court:

R v Major Willy No. 6 of 1990 a decision of Martin J R   v	Raymond	Rankine	No. 22 of 1990 a	decision of Kearney J

These cases were referred to as being sexual offences by men on young girls. Both the offenders were given wholly suspended gaol sentences for offences which, on the argument of counsel for the appellant, are

offences which the cornrnuni ty at large would consider to be more offensive than this particular offence.

Having read these two authorities I consider the decisions turn very much on their own facts and circumstances and are not necessarily indicators of the sentences given generally for such offences.

On reading the magistrate I s remarks on sentence it is clear that he had regard to the fact that Mr Wood is a
37 year old Aboriginal man living in Alice Springs. The magistrate had regard to the cultural, environmental and social factors before imposing a period of imprisonment. R v Minor 59 A Crim R 227, R v Leo Juli 30 A Crim R 31.

On my reading of the magistrate's reasons on sentence he was concerned to impose a sentence that would deter this particular offender from committing such an offence again. The magistrate also referred to the community outrage at this type of offence being committed in public. I agree with the magistrate's assessment of the communities attitudes. Police became involved because a member of the community telephoned them to complain about the appellant's actions. The magistrate referred to and rejected a number of ot.her sentencing options as being inappropriate. I am satisfied that he viewed imprisonment as an option of last resort and that he considered that no other form of sentence was appropriate.

I do not consider the magistrate erred at law or that the penalty imposed is manifestly excessive.

Accordingly, the appeal is dismissed.

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