Parry Jnr v Hales [2003] NTSC 83

PARTIES:	JOSEPH WILLIAM PARRY JNR

	v

	PETER WILLIAM HALES

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	JA 110/03, 111/03, 112/03 (20216451, 20300301 & 20303841)

DELIVERED:	23 July 2003

HEARING DATES:	17 July 2003

JUDGMENT OF:	THOMAS J

CATCHWORDS:
CRIMINAL LAW – offences against the person and disorderly conduct - judgment and punishment – appeal against decision not to suspend sentence – whether sentence manifestly excessive – whether insufficient weight to factors in mitigation
Criminal Code 1983 (NT) 188(2)(a)
Summary Offences Act 1996 (NT) 56(a)
Cransson v The King (1936) 55 CLR 520; R v Richards (1981) 2 NSWLR 464; Innes Wurramara v R (1999) 105 A Crim R 512, considered

REPRESENTATION:

Counsel:
	Appellant:	B Cassells
	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:	tho200327
Number of pages:	12

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

Parry Jnr v Hales [2003] NTSC 83
Nos. JA110/03, 111/03, 112/03  (20216451, 20300301 & 20303841)

	BETWEEN:

	JOSEPH WILLIAM PARRY JNR
	Appellant

	AND:

	PETER WILLIAM HALES
	Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 23 July 2003)

[1]	This is an appeal from a sentence of a learned stipendiary magistrate sitting in the Court of Summary Jurisdiction at Daly River.
[2]	The appellant had entered pleas of guilty to two charges of aggravated assault.  In each case the circumstance of aggravation was that the appellant was a male and the victim was a female.  He also pleaded guilty to a charge of resist arrest and one charge of  behave in a disorderly manner in a public place, namely, un-named streets in the Nauiyu community and the verandah of house 94 in the Nauiyu community.
[3]	The facts with respect to the first offence of assault and the offence of resist arrest are as follows:
“The defendant is in a de facto relationship - the victim in this matter Anne Louise Liddy, they have one 3-year old son Jamen(?) Parry.  The defendant is employed by the Nauiyu Community workshop and is a permanent resident of the Nauiyu community.  The defendant has direct family in Daly River and is culturally linked to Woodykupuldiya Outstation.
During the evening of Monday 4 November 2002 the defendant Joseph William Parry was at the drinking paddock within the Nauiyu community, the defendant with some friends consumed an unknown amount of VB beer whilst at the paddock.  The defendant became intoxicated and returned to the Nauiyu community.  At about 11:30 pm the defendant returned to house 94 within the Nauiyu community Daly River NT.
Upon arrival at his residence the defendant had a shower and was spoken - and was later spoken to by the victim in this matter Anne Louise Liddy.  After the defendant’s partner inquired what he had been up to during the evening, the defendant became angry with the lack of trust shown and he argued with the victim.
Whilst in the shower the defendant splattered the victim’s face with soapy water and pushed her once in the chest.  The victim left the bathroom and walked down the hallway, the defendant followed the victim and continued to argue with her on route to the living room.  Once the pair arrived in the living room the victim turned to face the defendant, using his right hand the defendant grabbed the victim around the throat and started to squeeze tightly.
The victim struggled to breathe and could not shout for help, she continually attempted to break free from his grasp, but the defendant maintained a firm grip on her throat.  The victim placed her arms around the back of the defendant’s head and wrapped one of her legs around the defendant’s thigh in order to trip the defendant quickly.
The defendant maintained his position and continued to squeeze the victim’s throat whilst arguing with her about the lack of trust in the relationship.  After choking the victim for a short while the victim was held to the floor, an unknown amount of time passed, and the defendant was leaning on top of her.
As the victim cried openly and feared for her safety the defendant forcefully and continuously slapped the victim about the face using both open palms.  He did this a number of times, each strike to cause the victim’s face to sting with pain, the victim eventually freed herself from his grasp and got to her feet.  Upon hearing the son Jamen crying the victim rushed to his bedroom again the defendant followed the victim down the hallway but he return to the bathroom at the victim’s request.
As he was in the bathroom the victim collected her son and rushed out the backdoor of the house, she ran to the Aboriginal Community Police Officer residence within the community for assistance.  At about 12.10 am police located the defendant on the verandah of house 94, it was observed that he was highly intoxicated, he was informed of his arrest and asked to accompany police to their vehicle.
Whilst in attendance the defendant became verbally abusive and non-compliant, he was physically restrained and directed to walk down the stairs.  He refused and locked his legs around the metal bars of the verandah whilst swivelling his body from side-to-side.  The defendant’s grasp was eventually released from the railing and he was handcuffed, he requested that clean clothing be obtained before leaving his residence, members accompanied him inside the house where he attempted to pull away from the attending police.
Again he was forcefully escorted out the front door, the defendant was lodged in the rear cage and continued to shout these obscenities - to shout obscenities while standing in on an un-named sealed road outside house 94.  He was conveyed to the police station where he was held utilising the provisions of section 137 Police Administration Act for intoxication.
Whilst on route the defendant repeated the above both within the community and the police station.  At 10.59 am on Tuesday 5 November 2002 the defendant participated in a formal audio tape record of interview where he spoke freely about the incident.  During this conversation the defendant made admissions to slapping the victim repeatedly and also choking her.
When asked if he had a reason for slapping and choking the victim the defendant stated no.  The defendant also stated that it was wrong to assault the victim but offered no reason why, he also stated that he could have stopped the incident occurring at any time by talking to her.  The defendant was later charged with the offences and bailed.
At no time did the defendant have permission to assault the victim, as a result of this incident this victim suffered swelling and small amount of bruising around her face and neck, and these areas were also tender to touch.
The un-named roads within the community were public places open to and being used by the public, there are a number of dwellings adjacent to the defendant’s residence.”
[4]	Whilst on bail for this offence the appellant committed a further offence of aggravated assault, the facts of which are as follows (tp 5 - 6):
“During the afternoon of Thursday 14 day of December 2002 the defendant was situated within the Woodykupuldiya Community celebrating his nieces 1st birthday, along with the defendant was the victim Marcy Parry and about 10 other family members.
During the afternoon and evening the defendant consumed an unknown amount of alcohol within the community, he became intoxicated.  Between 9 pm and 10 pm the defendant became angry with his sister for accusing him of stealing his alcohol.  The defendant shouted and swore at the victim while slapping the right side of her face with an open hand, the defendant made contact with the victim’s face 3 times, the victim ran from the defendant in fear of her safety.
As the victim walked around the community she observed a white Toyota Hilux driving around, the victim thinking the defendant was driving attempted to hide, however the Hilux turned towards her.  The defendant alighted from the drivers side of the Hilux and approached the victim, as he approached the victim the defendant located a piece of wood approximately half a metre in length.  The victim reluctantly started to walk to the aforementioned residence, the victim ran to a nearby vehicle which drove to a family members residence.
The defendant later located the victim and again argued with her about the incident, he then went about his own business.  On Monday 6 January - - - 2003 - - - The police attended the Woody outstation however the defendant declined to participate in a formal record of interview, he was informed that he would be summonsed in relation to the matter.
At no time did the defendant have permission to assault the victim, as a result of this incident the victim sustained a small amount of swelling around her cheeks.”
[5]	The facts relating to the behave in a disorderly manner, are as follows (tp 6 - 7):
“During 9, 10 and 11 March 2003 there were a number of incidents involving youth gang violence at the Nauiyu community on the 10th and 11th police issued warnings to the parties involved that this on-going trend would not be tolerated.
On the evening of 11 March 2003 the defendant consumed alcohol in a number of locations in about the Nauiyu community and as a result became intoxicated.  He and at least 2 co-offenders approached Betty Daly’s house - 21 - as their juvenile opponent in the aforementioned squabbles Jack Daly was located inside.
The defendant and his cohorts yelled abuse loudly towards Betty’s house using language such as ‘Come outside you yellow cunt’ and ‘We’re going to get you, you yellow cunt’, as they flailed about in the street picking rocks up and throwing them and waiving their arms in the air.
The fracas could be heard across the oval and to the detriment of the defendant attracted the attention of Aboriginal Community Police Officer Casey.
The co-offender in this matter was arrested shortly thereafter and the defendant’s progress was monitored as he continued through the streets of the community.  A short time later police were alerted to the fact that the defendant was at his house number 94, police attended and the defendant yelled out loudly from his balcony ‘What do you cunts want?’
As police waved to the defendant on his balcony he continued to yell and swear loudly shouting at both police and a number of other (inaudible) in the near vicinity.  The defendant was arrested and conveyed to the Daly River police station, during the trip home the defendant continuously yelled through the cage and swore at the extended members of the Daly family.
Passing remarks about their heritage, sexual habits and general hygiene, the defendant spent the evening in the cells and the following morning he was charged and bailed to appear on the matter now before the court.
At the time of the incident the streets of the Nauiyu community were public places open to and being used by the public, there was a large number of people both adult and juvenile on the streets.”
[6]	The learned stipendiary magistrate sentenced the appellant to seven months imprisonment with respect to the offence of assaulting his de facto wife with one month concurrent for the offence of resist arrest.
[7]	With respect to the offence of assault upon his sister, Marcy Parry, the learned stipendiary magistrate imposed a sentence of two months imprisonment cumulative upon the sentence for the first assault.  For the offence of disorderly behaviour the learned stipendiary magistrate imposed a sentence of one month imprisonment cumulative.  He then directed that the sentence be suspended after the appellant had served four months and noted the appellant would have six months hanging over him on his release.  The sentence dated from 7 June 2003 being the date the appellant had been in custody.
[8]	The grounds of appeal as set out in the amended notice of appeal are as follows:
“1.	That the sentence in relation to disorderly behaviour was manifestly excessive.
2.	That the learned Magistrate failed to properly consider the principle of totality.
3.	That the learned Magistrate erred by failing to properly recognise the effect of imprisonment on the defendant as a sentencing disposition.
4.	That the learned Magistrate gave insufficient weight to rehabilitation.
5.	That the learned Magistrate erred by failing to properly consider whether to suspend the sentences of imprisonment, taking into account times spent in custody.”
[9]	I will deal with each of these grounds.
Ground 1:  That the sentence in relation to disorderly behaviour was manifestly excessive.
[10]	Mr Cassells on behalf of the appellant submitted that a sentence of imprisonment for the offence of disorderly behaviour is very unusual.  Mr Cassells produced some statistical comparison of sentences imposed in South Australia for the offence of behave in a disorderly manner.  This table demonstrates that the overwhelming majority of such offences are dealt with by way of fine in South Australia.  A small minority are dealt with by a sentence of imprisonment.
[11]	This comparative table was submitted in support of Mr Cassells’ argument that a sentence of one month imprisonment for an offence of behave in a disorderly manner was per se manifestly excessive (see Cransson v The King (1936) 55 CLR at 520).
[12]	I do not accept this submission.  The maximum penalty for this offence under the Summary Offences Act is six months imprisonment or a fine of $2000.
[13]	The magistrate has not been shown to be in error in categorising this as a serious example of behave in a disorderly manner.  The appellant’s behaviour was directed towards a number of persons in the Nauiyu community.
[14]	The magistrate noted that it was even more serious because the appellant was drunk despite a condition of his bail that he not consume alcohol.  He was at the time on bail for the offence of assault.
[15]	His Worship stated (tp 25):
“It’s for that reason perhaps more serious than it would be just on the bare bones of the offence, but given circumstances in this community at that time even the bare bones of the offence are serious enough.”
[16]	His Worship was correct in stating that reoffending while on bail and breaching another condition of bail made the offence even more serious (R v Richards (1981) 2 NSWLR 464 Street CJ at 465 cited with approval Innes Wurramara v R (1999) 105 A Crim R 512 at 524).
[17]	Mr Cassells further submitted that the learned stipendiary magistrate had taken into account a situation prevailing at Daly River which was not the subject of evidence and which in any event was not of the appellant’s making.  Mr Cassells refers to the following passage in his Worship’s reasons for sentence (tp 24):
“There was a lot of trouble happening at Daly River at that time disputes between the Parry family and another family, and lots of young men were getting into lots of fights, some people were seriously hurt during that time.  The responsible members of this community were at their wits end trying to work out a way of stopping this endless violence that’s happening between young men.”
[18]	I am not persuaded the learned stipendiary magistrate has been shown to be in error.  His Worship did go on to note that he did not know how much of that situation the appellant had known about and acknowledged that the appellant had been away most of the time.  I do not consider that the learned stipendiary magistrate was punishing the appellant for the sins of others as Mr Cassells submits.
Ground 2:  That the learned magistrate failed to properly consider the principle of totality.
[19]	The learned stipendiary magistrate did not make specific reference to the principle of totality.  In constructing a sentence of 10 months imprisonment in respect of a total of four offences with a provision that the appellant be released after four months, the learned stipendiary magistrate was looking at the whole picture of the appellant’s offending.  I am satisfied he did apply the principle of totality even though he has not made specific reference to that principle.  The learned stipendiary magistrate was sentencing the appellant for four offences, two of which were serious assaults.  The totality of 10 months imprisonment was within the range of a sound discretionary decision.
Ground 3:  That the learned magistrate erred by failing to properly recognise the effect of imprisonment on the defendant as a sentencing disposition.
[20]	Mr Barlow, who appeared for Mr Parry in the Court of Summary Jurisdiction had made some submissions (tp 16) as to prison being a miserable experience, that it was harsh on young people, effected their future, their self esteem and was a crushing experience.  There is nothing in the learned stipendiary magistrate’s reasons for sentence that form the basis for this ground of appeal.  During the course of Mr Barlow’s submissions there was an interchange between his Worship and Mr Barlow in which his Worship stated he did not accept there was sufficient research to support that statement made by Mr Barlow.  His Worship noted that there were cases where aboriginal men had been horribly affected by being placed in gaol and others where their lives have been saved by going to gaol.  His Worship was merely pointing out that the research on this topic is inadequate to form any conclusions about the effects of imprisonment.  The learned stipendiary magistrate stated (tp 16):
“But there are very few cases either way.  What happens with the great mass of the matters I’ve just got no idea, and the results aren’t available, there’s no studies.”
[21]	I do not consider there has been any error demonstrated in this observation.  It did not in any event form part of his reasons for sentence.  His Worship did make reference to the provisions of s 78B(a) of the Sentencing Act and indicated that irrespective of these provisions he considered a sentence of imprisonment to be the appropriate penalty with respect to the two offences of assault.  There has been no error identified in this aspect of his reasons for sentence.
Ground 4:  That the learned magistrate gave insufficient weight to rehabilitation.
[22]	The learned stipendiary magistrate made the following comments during the course of his reasons for sentence (tp 25):
“It’s put to me Mr Parry that you have substantially rehabilitated yourself since the first offence against your wife on 4 November, I don’t see why I should accept that submission.  I think it’s absolutely clear from her evidence that you have gone a long way towards doing the right thing to try and sort out the troubles between you and her.  And you’ve gone along way towards trying to put yourself in a position where eventually you and she can get back together and you can be a proper father for your son.
You deserve credit for that - but in terms of rehabilitating yourself and staying out of other trouble I don’t think there’s any sign of that at all.  You committed another offence within a few days of the assault on your wife, but the offence in March seems to me much more of a problem to anyone saying you’ve straightened yourself out or used this time at Woodykupuldiya to make a new man of yourself.
Because of the occurrence of that offence shows you just being stupid, drunk and committing offences against the peace of this community in a way that doesn’t suggest you’ve really done anything to turn your life around in the meantime.”
[23]	His Worship then went on to note that the appellant is still a young man aged 23, that he had worked hard and had a good work record in the community which was unusual for persons who committed assaults.  His Worship referred to the letter submitted by the appellant’s mother concerning the difficulties for young men in the community.  His Worship then stated (tp 26):
“I have read with great interest and respect the comments of your mother and I’ve heard the evidence of your wife, and I must have what regard I can for what she said about what she wants me to not do with you which is to not send you to gaol.”
[24]	There has been no error demonstrated in his Worship’s sentencing remarks.  Counsel for the appellant submitted that his Worship did not pay sufficient regard to the evidence of the appellant’s wife who did not want him to go to gaol.  I do not accept this submission.  His Worship did take into account the evidence given by the appellant’s wife and that she had not wanted the appellant to go to gaol.  The wishes of a victim should be taken into account but are not determinative of whether an offender goes to gaol.
[25]	I consider the learned stipendiary magistrate adequately and appropriately dealt with the issue of rehabilitation.
Ground 5:  That the learned magistrate erred by failing to properly consider whether to suspend the sentences of imprisonment, taking into account times spent in custody.
[26]	The appellant has been in custody with respect to these matters since 7 June 2003.  He was sentenced in the Court of Summary Jurisdiction on 11 June 2003.  The appeal against sentence was heard on 17 July 2003.  The submission on behalf of the appellant is that the sentence of imprisonment should have been to the rising of the Court.  Counsel for the appellant states that as this is not an option in view of the length of time since the appellant was sentenced he should be released either immediately or at a time earlier than the period of four months actual sentence he was ordered to serve.
[27]	I do not consider that the appellant has substantiated the submission that the sentence imposed by the learned stipendiary magistrate was manifestly excessive.  Neither has there been any error demonstrated in his Worship’s reasons for sentence.  His Worship did in fact suspend six months of a 10 month sentence of imprisonment.  I am not persuaded this was outside the limits of a sound exercise of his discretion.
[28]	The appeal is dismissed.  The sentence of the learned stipendiary magistrate is confirmed.
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