Icely v O’Brien [2003] NTSC 105

PARTIES:	IAN ROSS ICELY

	v

	JAMIE THOMAS O’BRIEN

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	20308726 (JA 31/2003)

DELIVERED:	30 OCTOBER 2003

HEARING DATES:	14 OCTOBER 2003

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:
	Appellant:	R Goldflam 
	Respondent:	C Roberts 

Solicitors:
	Appellant:	NTLAC
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	Mil03313
Number of pages:	9

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

Icely v O’Brien [2003] NTSC 105
No. 20308726 (JA 31/2003)

	BETWEEN:

	IAN ROSS ICELY
	Appellant

	AND:

	JAMIE THOMAS O’BRIEN
	Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 30 October 2003)

[1]	This is an appeal against sentence from the Court of Summary Jurisdiction.  The appellant pleaded guilty to two counts of assaulting police in the execution of their duty, contrary to s 189A of the Criminal Code; going armed in public within the boundaries of a town, contrary to s 78(2) of the Firearms Act; having in his possession a firearm he was not licensed to possess, contrary to s 58 of the Firearms Act; possessing an unregistered firearm, contrary to s 59 of the Firearms Act; and, being in possession of a firearm, failed to comply with the storage and safekeeping requirements of that firearm, contrary to s 46 of the Firearms Act.  The maximum penalties applicable were as follows:
(a)	For the breaches of s 189A of the Criminal Code, 5 years’ imprisonment, but with a jurisdictional limit of 2 years if tried summarily.
(b)	For the breach of s 78(2) of the Firearms Act, 20 penalty units or 6 months’ imprisonment.
(c)	For the other breaches of the Firearms Act, 50 penalty units or 12 months’ imprisonment.
A penalty unit is defined by the Penalty Units Act to be an amount of $110.  Therefore, 50 penalty units amount to $5,500 and 20 penalty units to $2,200.
[2]	The learned Deputy Chief Magistrate imposed an aggregate sentence of imprisonment for 12 months on the assault police charges, and ordered that that sentence be suspended after 6 months and be subject to supervision after his release.  On the firearms charges, the appellant was convicted without further penalty.
[3]	The grounds of appeal are:
1.	That the sentence was manifestly excessive.
2.	That the learned magistrate erred in failing to comply with s 103 of the Sentencing Act.
3.	That the learned magistrate erred in speculating that the offender caused substantial psychological damage to the victims.
Ground 2 – failure to comply with s 103 of the Sentencing Act
[4]	It is not in dispute that the learned magistrate did not have the benefit of any report from the Director of Correctional Services as to the appellant’s suitability for supervision.  Section 103 of the Sentencing Act provides:
“(1)	A court shall, before imposing a sentence on an offender that requires the offender to be under the supervision of a probation officer, have regard to a report of the Director as to the suitability of the offender to be under supervision.
(2)	A report under subsection (1) may be in writing or given orally to the court.”
[5]	During the course of the hearing of the appeal, I was informed by counsel that an officer of the Director responsible for providing such reports was present in court and considered the appellant to be suitable for supervision.
[6]	There is no substance to this ground.  Despite the use of the word “shall” in s 103(1), it is clear that the failure to comply with the requirements of s 103(1) has no legal consequences.  None are prescribed by the Act.  The requirements of s 103 are purely procedural.  Section 110 of the Act provides that the failure to comply with a procedural requirement of the Act does not invalidate any sentence imposed by it.  Furthermore, the matter of the obtaining of a report has now been attended to, so that no injustice has been done.  Of course, this does not mean that courts can deliberately fail to comply with s 103(1).  Clearly, the legislature expects that the courts will do their best to comply.
Facts
[7]	Before dealing with the remaining grounds, it is necessary to outline the facts.  They were summarised by his Worship as follows:
“The facts in short compass are that following a domestic situation that had arisen on 8 June of this year in Tennant Creek, the defendant was ordered to leave the house of the person with whom he had been living for the last few months.  He apparently declined to do so and the police were called.  When the police arrived the defendant approached them brandishing a pump-action shotgun.
And, in the presence of the police and while it was pointed at them in their direction, he cocked the weapon and placed his finger upon the trigger.  The police officers ran for safety.  Ultimately the defendant left the premises, carried the firearm through the streets of Tennant Creek and ultimately got rid of it in a nearby paddock and then returned to surrender to the police.
The defendant is aged about 30.  He is an under-performer in society with substantial offending in four States, but no real history of assault.  In Queensland he has obstructed the police in the execution of their duty in the year 2000.  In New South Wales he resisted arrest and has four convictions for that in 1992 on two separate occasions.
He has had a domestic violence order against him in Queensland and in the year 2000 has breached it.  He has also obstructed the police in the execution of their duty in Queensland in the year 2000 and breached a domestic violence order in the year 2001.  He has convictions suggesting he is a drug user.”

[8]	His Worship accepted that the appellant intended no harm to the police.  The weapon was not loaded. 
[9]	No victim impact statement was tendered by the prosecutor, the only evidence being that, at the time the weapon was cocked and pointed in their direction, the two police officers feared for their lives and, believing that the appellant was about to shoot, took cover.
Ground 3 – the learned magistrate speculated about the damage to the victims
[10]	During his sentencing remarks, his Worship said:
“The police involved must have had a huge shock when confronted with a firearm capable of killing them.  It was cocked in their presence and the defendant’s finger was on the trigger, it would be surprising if the police officers concerned did not suffer substantial psychological problems as a result.”
[11]	The Sentencing Act now makes provision for the tendering of victim impact statements and victim reports:  see subdivision 2 of Part 6 of the Act.  There are provisions which govern the admissibility of such statements and reports:  see for example s 106B(7) and (8).  Section 106B(6) provides:
“A court shall not draw an inference in favour of an offender or against a victim because a victim impact statement or victim report is not presented to the Court.”
Section 106B does not prevent the court drawing an inference adverse to the offender and in favour of the victim where an victim impact statement or victim report is not presented to the court.  However, when imposing sentence, the inference must be one capable of being drawn from the accepted facts, or must be the subject of evidence:  see for example the observations of Southwell J in The Queen v Gray (Court of Criminal Appeal of Victoria, 30/9/04 unreported, BC9401279 at 8).
[12]	I do not doubt that the learned magistrate was entitled to draw the inference that the police would have had a huge shock when confronted with the weapon.  That is a matter of common experience.  However, I do not think that it was open for his Worship to have found that, as a result, the police suffered substantial psychological problems.
[13]	Counsel for the respondent submitted that there was no such finding, but that his Worship was merely was pointing out the potential for harm which the use of the weapon had in the circumstances.  I accept this submission.  I consider that his Worship fell short of making a finding adverse to the appellant.  This ground must be dismissed.
Ground 1 – the sentence was manifestly excessive
[14]	The principal authorities of this court relating to assaulting police in the execution of their duty, contrary to s 189A of the Criminal Code, were reviewed by me recently in Bellis v Burgoyne (unreported, 24/10/03, NTSC 103) and need not be repeated.  The appellant does not contend that the magistrate erred in imposing a sentence of actual imprisonment.  His counsel’s principle submission was that the sentence was manifestly excessive, having regard to the length of the head sentence, the length of the unsuspended period of the sentence, and the length of the operational period of the suspended portion of the sentence.
[15]	In this case, there are aggravating features which clearly warranted an actual custodial sentence.  As to the objective facts, the appellant had, in the presence of the police and whilst pointed at them, cocked the weapon and placed his finger on the trigger.  Even if the weapon was not loaded, the purpose of this was to engender in the minds of the police fear for their own safety and to enable the appellant to avoid having to deal with the police.  It is no comfort to the police that the weapon was not loaded; they were in no position to know whether it was or not.  Cocking any weapon and pointing it at another is obviously dangerous, even if the offender honestly thinks that the weapon is safe.
[16]	Counsel for the appellant referred me to other cases where courts have imposed sentences upon persons who have assaulted police with a weapon, with a view to showing that a sentence of imprisonment for 12 months was manifestly excessive.  Each of the cases referred to is distinguishable.  In R v Prindable (1979) 23 ALR 665, the appellant faced a charge of shooting at police with intent to resist or prevent his lawful apprehension.  A Crown appeal against inadequacy of sentence resulted in a sentence of 4 years with a non-parole period of 18 months.  That was obviously a far more serious case than the present.  In  Thomson v Mamarika (Supreme Court of the Northern Territory, Martin CJ 23/12/93, unreported), the respondent received a sentence of 18 months with a non-parole period of 9 months for a dangerous act, viz., discharging a weapon at a police vehicle, as well as two counts of unlawful assault with an offensive weapon (a 12-guage shotgun).  On each of these counts he received 6 months’ imprisonment concurrent with each other and with the sentence of 18 months.  A Crown appeal resulted in concurrent sentences of 2 years 6 months, 12 months and 12 months respectively with a non-parole period of 15 months.  Of course, being Crown appeals, the sentences imposed by Martin CJ would be less than that which the respondent should have been awarded in the first place.  There is nothing in these sentences which persuades me that the sentences Mr Icely received are manifestly excessive.
[17]	The case of The Queen v Gray (Court of Criminal Appeal, Victoria, 30/9/94, unreported, BC9401279) was also a much more serious offence and resulted in a much longer sentence than the appellant received in this case.  It is unhelpful except on one issue.  In that case, there was evidence that the appellant’s motivation for the offence was to commit suicide.  The Court accepted that that was a matter which affected, to some extent, the appellant’s moral culpability.  In the present case, the learned magistrate dealt with a submission that the appellant intended to provoke the police into shooting him dead by saying that he did not believe this to be a very mitigating factor because it was cowardly and, had it occurred as intended, the police officers would have been put through a tremendous ordeal.  I agree with the learned magistrate.  Had the police shot the appellant, they would almost certainly have faced a tremendous ordeal, not only of a psychological kind, but also as a result of having to relive the events by giving evidence at the inevitable inquest with its attendant publicity.  I do not consider that the facts in this case compelled the learned magistrate to treat this factor as mitigating.  Although the appellant has a history of depression and of epilepsy, there was no evidence that his ability to control himself was lessened in any way by his mental state at the time of these events.  His counsel submitted that the appellant was in a state of extreme agitation and distress at the time, which was apparently the result of a domestic argument over whether or not he had stolen $40 from his de facto’s purse.  However, there was nothing to relate this to any mental disorder the appellant was suffering:  see McKay v The Queen (Court of Criminal appeal of the Northern Territory, [2001] NTCCA 3; BC200103352).
[18]	Finally, counsel referred me to a sentencing transcript in The Queen v Brown (unreported, Bailey J 21/6/02).  Again, that was a much more serious case than the present one, and the defendant in that case received a much longer sentence than in the instant case.  I did not find that case to be of any help to the appellant.
[19]	In the present case, the appellant had pleaded guilty, but he also had a number of prior convictions in New South Wales, Queensland and Western Australia, albeit none for assaulting police.  Nevertheless, he has priors for resisting arrest, obstructing police and for breaching domestic violence orders.  I consider that, in the circumstances, it has not been shown that the sentences imposed were manifestly excessive.
Conclusion
[20]	The appeal is dismissed.
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