SULLIVAN V PULFORD

Supreme Court of the Northern Territory of Australia Angel J.
12,18 December 1989 at Darwin

APPEAL - Justices - Appeal against sentence - Assault
- whether two months detention excessive for juvenile first offender - Justices Act 1928 (N.T.) - Juvenile Justice Act 1983 (N.T.) s. 53 (1)(g) - Criminal Code 1983 (N.T.)
s.	188.

APPEAL - Justices - Appeal against sentence - whether Magistrate took into account matters extraneous to circumstances of offender and offence.

CRIMINAL LAW - Assault - appeal against sentence - juvenile first offender - whether period of detention appropriate.

Cases referred to:
Birch v Fitzgerald (1975) 11 S.A.S.R. 114
McGregor v Steel (1973) 5 S.A.S.R. 222
R v Weaver (1973) 6 S.A.S.R. 265
Sellen v Chambers (1974) 7 S.A.S.R. 103

Counsel for Appellant Solicitor for Appellant

Counsel for Respondent Solicitor for Respondent

B. Cassells
aters, James & O'Neil
J.  Adams Solicitor for the Northern Territory

ang89013

ang89013
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
No.	743	of 1989

BETWEEN

BRADLEY GARY SULLIVAN

Appellant

AND:

NEVILLE ROSS PULFORD

Respondent

CORAM:	ANGEL J.

REASONS FOR JUDGMENT

(Delivered the 18 day of December 1989)

On the 14th November 1989 the appellant was convicted by the Juvenile Court at Nhulunbuy upon a charge that contrary to s. 188 of the Criminal Code he did unlawfully assault Leslie Frederick Rushbrook who suffered bodily harm and who was unable effectually  to defend himself or retaliate. The maximum penalty for the offence was 12 months detention,  the appellant being a juvenile (see Juvenile JusticE Act
s. 53(1)(g)).	He was sentenced to three months detention, it being directed that after serving two months detention, he be released on his entering into a good behaviour bond in the sum of $200-00 to be of good behaviour for a period of twelve months.

At nine o'clock in the evening of Sunday the 22nd October 1989 the appellant and three companions were attending a social function at the Arnhem Club at Nhulunbuy.	Also attending the same function was Leslie Frederick
Rushbrook.	Rushbrook and the appellant were known to each other and had had some sort of difference of opinion at a carnival some two weeks before the offence.	Recognising Rushbrook, the appellant invited his three accomplices to join in assaulting Rushbrook.	Rushbrook, unsuspecting, left the Arnhem Club and was followed down the street by the appellant and his accomplices.	Rushbrook reached the Telecom Depot where he was approached by the appellant and knocked to the ground with a strike to the head.	The prosecution and defence versions varied as to what happened thereafter.		No sworn evidence was given in the matter.
The learned special magistrate approached the case on the ba Eis the appel lan·t only struck Rushbrook the once.	I sirr.ilarly approach the matter.	Viewing the circumstances in the most favourable light to the appell&nt, having knocked Rushbrook to the ground he stood b)' whilst h!s accomplices punched and kicked Rushbrook in the head and chest.	Rushbrook started vomiting and the appellant and his fellow cowards fled the scene.	Rushbrook sustained quite severe injuries requiring  his removal to Darwin.	He suffered a broken jaw, broken ribs and cuts and bruising.

The learned apecial magiatrate, having heard aubmissions before the luncheon break gave the •matter a lot of thought over lunch time".	He said in the course of his remarks: "This would have to be one of the more aerious offences of assault that I have had to deal with for some time".	He considered that the assault had three significant factors. He said:-

"This was a planned assault.	It wasn't something which happened spontaneously.		Secondly, it was in company, that is there were four of you against a victim, which also adds the decree of seriousness to the offence, and thirdly, the injuries resulting from the assault were also very severe, that is the person suffered a fractured jaw, broken ribs, cuts and bruises, and the fact that he was evacuated to Darwin the next day also in my view, indicates the seriousness of the offence, or the injuries, rather".

The appellant pleaded guilty.	The appellant at the time of the offence was sixteen years of age without any prior offences of violence alleged against him.	The learned special magistrate said these were significant factors which mitigated any penalty which a court would impose upon him.	The learned special magistrate went on to say:-

"There are many authorities whic suggest that young people who come before the court should be treated leniently, for obvious reasons.	One is we don't like to send people to gaol on their very first offence, secondly we don't like to do it if they are young people because of contamination with more experienced criminals, and thirdly, the hope that they will grow out of the sort of behaviour which brought them before the court.	In other words, the courts are encouraged to rehabilitate young offenders".

The learned special magistrate also said:-

•There is certainly authority to the effect that these matters of rehabilitation can be secondary in offences of violence.	In my view that is the situation in this particular circumstance.	I have already indicated the circumstances of this offence are very serious.	They are serious enough in my view, to warrant a period of imprisonment.		I have significantly reduced what I believe to be the appropriate penalty for this offence, reduced it because of the factors that I have just outlined.	In my view the seriousness of this offence would warrant something like twelve months imprisonment as a head sentence.	1 do not propose to impose that length of that time head sentence, anc I propose to partly suspend the sentecces, but in my view the principles of personal and general deterrence are the ones which outweigh the principle of rehabilitation, even for young people such as yourselves.	Whoever it is, be it young people or older people, the message has to get through in any community that offences of wanton premeditated severe violence will be punished by tenns of imprisonment".

The first attack on the learned special magistrate's sentence was that it was manifestly excessive.	By consent, added to that ground by way of amendment before me was an attack based on an alleged error of the learned magistrate in wrongly taking account of under age drinking at the Arnherr. Club.	Whilst under age drinking at the Arnherr. Club was obviously a matter of co cern to the magistrate, he having heard a number of cases that morcing involving offenders with apparently more than nodding acquaintance with the drinking facilities at that club, it would appear from the transcript of the hearing that the learned magistrate was merely voicing his general concern.	There is nothing to indicate that those matters were brought into account in fixing sentence in the present case.		In my view there is nothing in this ground of appeal and I think that

..
the learned special magistrate properly confined his attention to the circumstances of the offence and of the offender and to general sentencing principles.

There is left the ground that the sentence was manifestly excessive.	In urging this ground upon me Mr Cassells, who appeared for the appellant and who said everything that could be said in favour of this ground, frankly conceded that no error or omission was apparent in the learned special magistrate's remarks and that he was bound to submit that by reason of the severity of the sentence alone an error was manifest.	To submit that the learned magistrate's sentence in the present case for an unprovoked assault of the nature mentioned, even in the case of a sixteen year old first offender of good character, was manifestly excessive was, to adopt the words of Bray C.J. in Birch v Fitzgerald (1975) 11 S.A.S.R. 114 at 115 "a manifestly Herculean task".

The present offence seerred to the experienced learned special magistrate, to be one in which the deterrent aspect of punishment should take priority over that of rehabilitation.	I agree.

In Birch v Fitzgerald supra at p.117 Bray C.J. said of violence by young men towards each other:-

...

•1t may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it if they do they may very well be punching, striking, butting or kicking themselves into gaol•.

No error of law or mistake of fact was pointed to.	It cannot be said the learned special magistrate gave too much or too little weight to any factor.	The learned special magistrate made specific reference to the youth of the appellant and the caution to be observed before imposing a sentence of detention on a youthful offender of good character:	McGregor v Steel (1973) 5 S.A.S.R. 222,
R v Weaver (1973) 6 S.A.S.R. 265.	It was said the appellant's participation in the assault was not as great as the others.	If by that it is meant he only hit the victim once that is true.	But he first suggested the assault, struck the first blow and did not back off until all four fled from the scene.		Even if, as it was submitted, "the matter got out of hand", that does not account for much.		Alcohol played its part in this as in many other assaults.	The victim did nothing to incite, far less warrant, what befell hi	at the hands of the appellant and his cohorts.		The appellant in darkness and in company, actively participated in a planned unprovoked assault of sufficient severity to hospitalise the victim who at the time was lawfully walking along a public thoroughfare.
There was nothing compulsive about the appellant's actions.

Deterrence aside, the detention imposed by the experienced learned special	agistrate vindicated the law and condemned the appellant's actions for what they were:	reprehensible acts outside the law.

Two of the appellant's co-offenders (adults respectively aged seventeen and eighteen) were both sentenced to 5 months imprisonment, to be released after 2 months on entering into a bond to be of good behaviour for 12 months.	No disparity in sentencing was or could be called in aid of the appellant's case, cf. Sellen v Chambers (1974) 7 S.A.S.R. 103.

In light of the circumstances of this offence it cannot be said that in sentencing the sixteen year old first offender of good character as he did the learned special magistrate exceeded the bounds of his sentencing discretion.

The appeal is dismissed.