PARTIES:					CLIVE MAWSON

						v

						WAYNE KEITH NAYDA

TITLE OF COURT:			SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:				APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO:					No. JA13 of 1995

DELIVERED:				Darwin 31 October 1995

HEARING DATES:				30 October 1995

JUDGMENT OF:				Kearney J

CATCHWORDS:

APPEAL - general principles - appeal against sentence

	Salmon v Chute (1994) 94 NTR 1, followed
	Goddard v Bell (unreported, Supreme Court (NT), Kearney J, 8 March 1994), followed

APPEAL - general principles - sentencing - relevance of 
	ethnic, environmental and cultural matters

	Neal v The Queen (1982) 149 CLR 305, applied
	R v Iginiwuni (unreported, Supreme Court (NT), Muirhead J, 12 March 1976), followed

CRIMINAL LAW AND PROCEDURE - sentencing - significance
	of maximum penalty when magistrate hearing summarily an offence punishable on indictment 

	Maynard v O'Brien (1991) 57 A. Crim. R. 1, followed

CRIMINAL LAW AND PROCEDURE - appeal - whether sentence
	manifestly excessive - desirability of providing relevant statistical information

	Marshall v Llewellyn (unreported, Supreme Court (NT) Kearney J, 3 May 1995), followed
	Gadatjiya v Lethbridge (1992) 106 FLR 265, followed

	Nabanardi v Minner (1992) 107 FLR 172, followed

CRIMINAL LAW AND PROCEDURE - hardship to offender's
	family - whether a factor to be taken into account in mitigation of punishment - requirement to produce cogent evidence to the sentencing Court to establish exceptional hardship

	R v Nagas (unreported, Court of Criminal Appeal (NT), 13 October 1995), applied
	R v Wirth (1976) 14 SASR 291, referred to

CRIMINAL LAW AND PROCEDURE - general principles - magistrates
	- remarks on sentence - whether appellate Court may assume that magistrate has considered all matters put to him

	Janima v Edgington (unreported, Supreme Court (NT) Mildren J, 28 August 1995), followed
	R v Reiner (1974) 8 SASR 102, referred to

CRIMINAL LAW AND PROCEDURE - general principles - sentencing
	- relevance of consideration of general deterrence to sentence for assault involving use of offensive weapon - applicability in "domestic violence" situations

	Najpurki v Luker (unreported, Supreme Court (NT) Martin CJ, 6 August 1983), followed

REPRESENTATION:
Counsel:					
	Appellant:			D. Dalrymple
	Respondent:			P. Elliott

Solicitors:				

	Appellant:			Katherine Regional Aboriginal Legal Aid Service Inc.
	Respondent:			Office of the Director of Public Prosecutions

Judgment category classification:	A
Court Computer Code: 
Judgment ID Number:				kea95039.DIS
Number of pages:				14

kea95039.DIS

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. 13 of 1995

						IN THE MATTER OF the Justices Act

						AND IN THE MATTER OF an appeal against a sentence imposed by the Court of Summary Jurisdiction at Borroloola

						BETWEEN:

						CLIVE MAWSON
							Appellant

						AND:

						WAYNE KEITH NAYDA
							Respondent

CORAM:   KEARNEY J

	REASONS FOR JUDGMENT

	(Delivered 31 October 1995)

		The appeal
		On 11 January 1995 the appellant appealed, pursuant to s163(1)(a) of the Justices Act, against the severity of a sentence of 6 months imprisonment imposed on him earlier that day by the Court of Summary Jurisdiction at Borroloola ("the Court"), after he was summarily convicted on one count of aggravated assault.  That was an offence under s188(2)(a), (b) and (m) of the Criminal Code; the person assaulted was a female, threatened by a dangerous weapon by the offender, a male, who suffered bodily harm when he struck her with it.  It carries a maximum punishment of 5 years imprisonment.  On summary conviction, as here, the maximum is 2 years imprisonment; that is not however the punishment reserved for the 'worst' category of cases to come before the Court - see Maynard v O'Brien (1991) 57 A.Crim.R. 1 at p6.  

		Two grounds of appeal are set out in the Notice of Appeal, viz:-
		(1)	that the sentence of 6 months was manifestly excessive;
		(2)	that the Court when sentencing failed to give sufficient weight to the appellant's family circumstances.
The appeal was argued yesterday.  I rule on it today.

		The proceedings in the Court
		(a)	The admitted facts of the offence
		The appellant pleaded guilty to the charge, and through his counsel, Mr Dalrymple, "substantially admitted" that the following facts were correct:-
		"- - - during the morning of Sunday, 27 November 1994, the defendant [that is, the appellant] attended the Borroloola Inn.  He started drinking VB beer with friends.  Shortly after lunch the defendant was informed that his 7-year-old daughter had been 'medi-vacced' out to Katherine Hospital.  He continued drinking before returning to his residence at Garawa Number 2 Camp at about mid-afternoon.

		Upon arrival, he located his de facto, Roxanne Jupiter, and was informed that she had been too intoxicated to fly out with their daughter.  He became upset upon hearing this.  Both the defendant and his de facto then continued drinking during the remainder of the afternoon and into the night. Both were drinking with friends.

		At approximately 9pm the defendant demanded that his de facto locate and find a key in order to open a can of tinned meat.  She refused.  The defendant then became angry and stood up.  He then hit his de facto across the back of the head several times whilst holding a can of tinned meat.  He then picked up a nearby broom handle and proceeded to hit into the de facto's legs which were stretched out in front of her as she was seated.

		The defendant repeatedly hit - - - his de facto's [legs] - - -.  Shortly afterwards he assisted his de facto into their bedroom and both went to sleep.  The following morning Roxanne Jupiter was unable to walk from her bedroom and several friends had to assist her in order to convey her to the health clinic.  She was subsequently flown out to Katherine Hospital where X-rays confirmed that her right leg had been broken.  

		At approximately 9 am on 21 December 1994, the defendant voluntarily attended the Borroloola Police Station.  An electronically-recorded interview was conducted during which the defendant admitted his actions.  When asked if he had any reason for his actions, [he] stated, 'I was upset because Roxanne was drunk and couldn't fly out with her daughter.'  The defendant further stated that he was 'full-drunk' at the time; however, did not intend to break Roxanne Jupiter's leg.

		At the completion of the interview the defendant was formally charged with the stated offences, processed and bailed.  At the time of the offence the defendant did not either consent to assault Roxanne Jupiter in any way (sic).  As a result of his actions she sustained a broken right leg."
The appellant's prior criminal history was treated as of little relevance to the present offence.  It showed that he had been before the Court on 4 previous occasions since 1986, but not since 1989.  For those offences he had been fined.  He had one prior conviction for an assault in January 1989; his Worship treated it as "a relatively minor matter".  Mr Dalrymple said that it indicated "a problem with anger control".  
		(b)	The submissions in mitigation
		In mitigation, Mr Dalrymple canvassed the nature of the offence and the appellant's circumstances, viz:-
		"- - - my client had only actually drank at the [Borroloola Inn] for an hour or so, perhaps two hours at the most.  It wasn't as if he had been drinking there for a large number of hours, and in fact he stopped drinking when he was given the news that his daughter had been 'medi-vacced' out to Katherine Hospital.  He assumed at that time that his wife had gone on the plane as well, and there was nothing much more that he could do about it to assist his daughter at that time, or so he understood; and that's why it was some time afterwards before he actually went back to his home.

		When he arrived back at his home, his wife was not in fact there, and it's not in fact agreed that they continued drinking together during the afternoon.

		- - - 

		- - -  All he's saying is that he got back home; she wasn't there.  He did not continue drinking.  He stayed there, and he was pretty upset about the fact that she hadn't gone with the plane and that she wasn't then at home.

		Later in the night she came back.  She was pretty drunk.  He asked her to find the key to open the tin of meat.  She refused to, and probably wasn't in a fit state to find it anyway;  that's his sort of retrospective view.  It wasn't so much the fact that she was refusing to get the tin of meat that angered him.  It was more the fact of the condition she was in, and the fact that the little girl had had to be flown out without the mother that really enraged him; and so I suppose it was something he'd been brooding on all afternoon, and it was triggered off again by her obvious state at that time, still severely intoxicated.

		So he then assaulted her in the way that's been described in the precis.  He doesn't resile from that, and obviously he acknowledges that it was a seriously wrong thing that he did.  However, he does note that she was able to walk, herself, into the bedroom afterwards; and he didn't appreciate at that time - - - that she had received a broken leg.

		I would submit that his remorse and concern about it is to a certain extent indicated by the fact that he himself went to the police station and spoke to the police about what he'd done; and of course he told the police straight away that he was upset because his wife was drunk and couldn't fly out with the daughter".
I note in passing that the offence occurred on 27 November 1994 and the appellant was interviewed by the Police 3½ weeks later, on 21 December.  Mr Dalrymple continued:-
		"Assaults of this nature of course generally attract at least consideration of a custodial sentence.  In my submission, there are a number of factors that should militate towards persuading you to suspend such a sentence.  The first being my client's record; he has one previous conviction for assault but, as I said, he certainly doesn't present as a man with a long-term history of domestic violence, assaults, who hasn't been able to obtain any benefit in the past from bonds or other manners of penalty other than custodial sentences.

		There is also the fact that they do have - - - two children, actually; [aged] 7 and 3, - - - .  It would appear, on my instructions anyway, that the wife by herself, because of her drinking, is perhaps not - well, it would be better to have both parents there in terms of looking after the children, [rather] than just the wife.

		They reside at Garawa 2 Camp which is across the river, so for the kids to go to school and stuff like that, they need assistance from adults to bring them [to] this side of the river. - - - [What] I would draw your attention to again is his plea of guilty and the fact that he himself contacted police, which I think is indicative of remorse on his part.  All those things combined, - - - indicate the appropriateness of a suspended sentence rather than an actual custodial sentence for this assault, and I would be asking Your Worship to take that course."  (emphasis mine)

		(c)	His Worship's remarks on sentence
		In proceeding to sentence the appellant immediately his Worship said:-
		"Clive Mawson, you've pleaded guilty at the first opportunity to aggravated assault.  That's an aggravated assault on three bases: first of all, it was a woman that you struck - - -.  It can't be said that all women are weaker and less able to defend themselves than all men.  It may be as a general rule that this is still a proper thing, to be a circumstance of aggravation in these days of equality, though I question it.  At any rate, that is the minor part of it, that it was a woman.

		You used a weapon, indeed, two weapons, particularly the broom handle.  There's no great complaint made of the fact that you struck her on the head several times while you were holding a can of meat in your hand.  There's no suggestion that you lacerated her scalp or anything.  But you beat her a number of times with a broom handle about the legs, and in the course of that, you broke one of her legs.  Maybe it wasn't a bad break.  No-one seems able to tell me what sort of a break it was, and I find that remarkable.

		I am going to assume in your favour that it was something less than a compound fracture because I am quite sure that if it had been a compound fracture, you and she would have known all about it before she was put in her bed.  I am not going to assume that it was just a minor chip of bone.  She got into bed with your help, and apparently she slept the night, but in the morning it was too painful for her to get out of bed and she had to be helped to the clinic.

		This was a couple of months ago - - -.  The reason for it: your daughter had been 'medi-vacced' while you were down [at] the pub.  You assumed that [your de facto] had gone with the daughter, but when you caught up with the daughter [sic, your de facto] she had been out drinking too and had indeed been too intoxicated to fly out.  This angered you.  This must have been simmering, it would seem; and it was then, at 9 o'clock at night - - - you demanded that she find the key to a can of meat.

		Now, that, regrettably, Mr Mawson, is in my experience a much more common reason for violence to wives than their failure to take children on planes to hospital.  In my experience, women are much more likely to get flogged, as you flogged this woman, for refusing to cook their husband's supper when he comes in dead drunk.  So I guess I do give you some credit for having what might be called "a better reason"; but, goodness me, Mr Mawson, I do not give you very much credit.

		You were, if not drunk, you at least had been drinking, and you knew perfectly well the sort of wife that you had.  I take it you would have been quite happy for the child to have gone into hospital in Katherine with Mum, leaving you to look after the other one.  That is what I'm supposed to take from that submission, I think.  

		You've only one conviction for assault and it was a relatively minor matter.  You were fined $300 back in 1989.  This is quite different.  It is much more serious.  - - - a flogging like this, does call for a strongly deterrent sentence.  If you had beaten her about the head with the force needed to break the leg, I think the chances are pretty good we'd be talking manslaughter or murder here.

		The question is whether that sentence of imprisonment which the offence deserves, should be wholly or in part suspended, and I do take into account your plea of guilty at the first opportunity.  I do take into account that you co-operated with the police and that there is some evidence there of remorse.  I think the message has to go out, and go out clearly, to you, to other men like you, and to the women in these communities.  I am not prepared to suspend the sentence.  You are convicted and you are sentenced to six months gaol with effect from today."  (emphasis mine) 
Clearly enough, in the passage last emphasized, his Worship was stressing the need for the sentence to reflect an element of personal and general deterrence.

		The submissions on appeal
		(a)	The submission by the appellant
		In support of the 'manifestly excessive' ground Mr Dalrymple referred to the sentences in the 4 cases of offences of this type - assaults by males on females, causing bodily harm - which were handled by KRALAS in 1994.  The severity of the assaults and the degree of the resulting harm varied, as did the prior criminal records of the respective defendants; the sentences were 6 months imprisonment, 6 months fully suspended, 3 months and 4 months.  The cases are of some utility, but the sample is too small to indicate any kind of 'tariff' for this offence.  I observe that the policy of the courts is to penalize resort to weapons in the course of an assault, by imposing a heavier penalty; the nature of the weapon - here a broom handle - and the use to which it is put, are important in that regard.
		Mr Dalrymple submitted that since KRALAS dealt with only 4 such cases in 1994, it could not be said that the offence was prevalent, and that was another factor pointing to the 'manifestly excessive' nature of the sentence.  I reject the first proposition.  I consider that the level and frequency of violence inflicted by aboriginal men on aboriginal women in communities in the Territory is notorious, unacceptable, and a topic about which the courts have voiced their concerns for years.
		Mr Dalrymple also referred to Najpurki v Luker (unreported, Supreme Court (NT) (Martin CJ), 6 August 1993).  That was an aggravated assault in which the offender used a knife on his wife, cutting her badly,; he received a sentence of 18 months imprisonment, with a nonparole period of 9 months.  Mr Dalrymple submitted that the difference between the sentence for the present, less serious, offence (6 months) and the 18 months sentence in Najpurki, was insufficient to reflect the difference in the seriousness of the 2 cases.  I reject that proposition.
		In support of ground 2, Mr Dalrymple referred to submissions he had made to the Court, set out at p5.  He submitted that his Worship had not taken that factor into account when sentencing, or had given it insufficient weight.
		I observed that the appellant had never been sentenced to a term of imprisonment before. Mr Dalrymple did not submit that his Worship had not taken that factor into account, but submitted it should be given weight when considering whether the sentence was manifestly excessive.
		(b)	The submissions by the respondent
		Mr Elliott of counsel for the respondent referred to the burden which the appellant bore, in challenging the exercise of the Court's sentencing discretion; see, for example, the authorities cited in R v Bird (1988) 56 NTR 17 at pp20-1.
		As to the fact that the appellant had not been sentenced to a prison term before, Mr Elliott noted that he was not a first offender, having been before the Courts on 4 previous occasions.  I accept that, but the approach to sentencing a first offender - that all other possibilities should be exhausted before the decision to impose a sentence of immediate imprisonment is reached - also applies where a custodial sentence has never previously been imposed on the offender.
		Conclusions on the appeal
		The general principles applicable to appeals against sentence are set out in the authorities cited in Salmon v Chute (1994) 94 NTR 1 at p24 and Goddard v Bell (unreported Supreme Court (NT) (Kearney J), 8 March 1994) at p13.  An appellant must show that the exercise of the Court's sentencing discretion has miscarried. 
		The same principles apply to the sentencing of aboriginals as these which apply to non-aboriginals.  Since these principles allow for ethnic, environmental and cultural matters to be taken into account, the actual disposition of an aboriginal offender may be different from that of a non-aboriginal; see Neal v The Queen (1982) 149 CLR 305 at p326 per Brennan J, and R v Iginiwuni (unreported, Supreme Court (NT) (Muirhead J), 12 March 1975), at pp23-5.  For example, it is notorious that in many aboriginal communities alcohol abuse to a significant degree is accompanied by violence, frequently to women.  The remedy lies outside the province of the criminal law, but where abuse of alcohol reflects the socio-economic circumstances in which an offender grew up, his drunkenness may be treated as a mitigating factor.  
		The task of the sentencing court always is to assess, objectively, the seriousness of the offence, with reference to the particular community in which it is committed, and to take into account the interests of the wider community and the subjective circumstances of the offender.  Its purpose in doing so is to endeavour "to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be", as Napier CJ put it in Webb v O'Sullivan [1952] SASR 65 at p66.
		To establish that this sentence was manifestly excessive, it was desirable to provide this Court with sufficient relevant statistical information, if available, to show that 6 months imprisonment for such a common offence as an 'aggravated assault' of this type, is manifestly excessive, in that it exceeds the 'tariff'.  See Marshall v Llewellyn (unreported, Supreme Court (NT) (Kearney J), 3 May 1995) at p16, Gadatjiya v Lethbridge (1992) 106 FLR 265 at pp272-3 and Nabanardi v Minner (1992) 107 FLR 172 at pp179-180.  The information supplied about the 4 cases is insufficient for that purpose.  
		As to ground 2 of the appeal, it is clearly a negative effect of imprisonment that it affects the personal lives of the members of the prisoner's immediate family.  In R v Nagas (unreported, Court of Criminal Appeal (NT), 13 October 1995) at pp17-19, their Honours said:-
		"It has been stated on many occasions that the hardship caused to the offender's wife and children is not normally a circumstance which the sentencer may take into account, but the policy appears to be subject to three recognisable exceptions.  Family hardship may be a ground for mitigation of the sentence where the particular circumstances of the family are such that the degree of hardship is exceptional and considerably more severe than the deprivation suffered by a family in normal circumstances by a result of imprisonment.

		- - -

		The third situation in which family hardship may mitigate a sentence is where - - - other family circumstances mean that the imprisonment of one parent effectively deprives the children of parental care." (emphasis mine)
This approach was sought to be rationalized in R v Wirth (1976) 14 SASR 291 at p294; Bray CJ said that the general principle is that if imprisonment bears with special hardship on a prisoner - and it may do so because of its effect on his family - that fact may be taken into account in mitigation.  
		To establish one of the exceptions set out in Nagas (supra) it is necessary in my opinion that a defendant produce cogent evidence to the sentencing Court to establish that his imprisonment would impose exceptional hardship upon his family, one which is considerably more severe than normal for a family where the father is imprisoned; or that his imprisonment would effectively deprive his children of parental care.  No adequate evidence directed to these matters was placed before the Court; Mr Dalrymple, in the passage emphasized on p5, appeared to submit to the Court that the appellant's de facto wife might not be capable of looking after their 2 children on her own, "because of her drinking".  Accepting that she might not be so capable does not go far enough to establish that there were "particular circumstances" in the appellant's family which demonstrated that an "exceptional" degree of hardship would flow from the appellant's imprisonment, or that it would effectively deprive his 2 children "of parental care".
		I note that his Worship did not expressly allude to this submission in his sentencing remarks.  In that connection, as with the fact that his Worship did not mention that the appellant had not been sentenced to imprisonment before, I bear in mind Mildren J's observations in Janima v Edgington (unreported, Supreme Court (NT) (Mildren J), 28 August 1995) at p5:-
		"His Worship's remarks in sentencing were very brief.  As stated by Muirhead J in Hill v Arnold (1976) 9 ALR 350 at 357, this court is appreciative of the difficulties and pressures under which Magistrates are working, but it is important that they give at least a succinct account of their main reasons for decisions, especially when sentencing a person to prison.

		Nevertheless, remarks on sentence are not to be analysed as critically as the words in a considered reserved judgment: see Jambajimba v Dredge (1985) 33 NTR 19, at 22 per Muirhead ACJ; and an appellate court is entitled, when considering the evidence and the reasons given, to assume that the Magistrate has considered all matters which are necessarily implicit in any conclusions which he had reached: see Bartusevics v Fisher (1973) 8 SASR 601 per Bright J." (emphasis mine)
See also R v Reiner (1974) 8 SASR 102 at p106 per Bray C.J.
		Clearly, his Worship stressed that the sentence should reflect the need for personal and general deterrence.  He was not wrong to do so.  I respectfully agree with, and apply to the circumstances of this case, mutatis mutandis, the observations of the Chief Justice in Najpurki v Luker (supra) at pp6-7, viz:-
		"Until such time as it is demonstrated to me that people who are minded to take up a weapon with a view to assaulting some person with whom they have a grievance are not deterred by the knowledge that others who have done similar things have spent time in gaol, then the element of general deterrence remains a meaningful factor in the sentencing process for such offences.  If it is emphasised by the Courts often enough and firmly enough, then the message must start to get through, or be reinforced, [and] the community and individuals within it will be to some extent relieved of the threats the real tragedy and distress caused by assaults with offensive weapons.  That has been a concern of this Court for many years and reference to its records in relation to the sentencing of persons convicted of offences such as this discloses that it is by no means out of the ordinary for substantial head sentences to be imposed - - -."

		- - -

		A review of the sentences imposed in this Court for unlawful assault involving the use of weapons such as a knife, a rock, broken bottles, a nulla nulla or other implements capable of inflicting serious wounds show that although the sentence imposed by his Worship may be at the upper end of the scale it was not out of the range of disposition of the offenders.  There can be no doubt that his Worship was, as well, aware of the frequency of offences of this general type when considering the sentence to be imposed on this appellant.  It is undoubtedly the case that the Courts of Summary Jurisdiction are called upon to deal with offences of this nature more often than in this jurisdiction.  It has not been shown that the learned Stipendiary Magistrate's discretion miscarried nor has it been shown that the sentence which he imposed was manifestly excessive. It may well be at the higher end of the scale, but even if this Court were inclined [to] impose a lighter sentence that is not the test.  

		- - - 

		Too often, situations such as this can be hidden under the euphemism of "domestic violence" as if it having occurred in a domestic situation rendered it less criminal.  That is not the case."
		I do not consider that the sentence of 6 months imprisonment, while severe in light of the fact that the appellant had not been subjected to custodial imprisonment before, can be said to be manifestly excessive.  There is no substance in the second ground of appeal.  The appellant has therefore failed to show that the exercise of the Court's sentencing discretion miscarried.  Accordingly, I dismiss the appeal and confirm the sentence imposed.
		Order accordingly.

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