Mace v Hales [2002] NTSC 15

PARTIES:	JOSEPH MACE

	v

	PETER WILLIAM HALES

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO:	JA46 OF 2001 (20106934)

DELIVERED:	15 March 2002

HEARING DATES:	11 March 2002

JUDGMENT OF:	RILEY J

REPRESENTATION:

Counsel:
	Appellant:	G.  Bryant
	Respondent:	G. Dooley

Solicitors:
	Appellant:	North Australian Legal Aid Service
	Respondent:	Office of the Director of Public Prosecution

Judgment category classification:	B
Judgment ID Number:	ril0204	
Number of pages:	10

ril0204

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mace v Hales [2002] NTSC 15
No. JA46 of 2001 (20106934)

	IN THE MATTER OF the Justices Act

	AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

	BETWEEN:

	JOSEPH MACE
	Appellant

	AND:

	PETER WILLIAM HALES
	Respondent

CORAM:	RILEY J

REASONS FOR JUDGMENT

(Delivered 15 March 2002)

[1]	On 1 August 2001 the appellant was convicted of assaulting a police officer in the execution of his duty contrary to s 189A of the Criminal Code and also of carrying an offensive weapon, namely a knife, contrary to s 56A of the Summary Offices Act.  The offences arose out of events that occurred on 9 May 2001 and were described by the prosecutor as follows:
“[J]ust after 5pm on Wednesday May 2001 the defendant was drinking cask wine with his wife in Dwyer Park in the The Narrows.  He was intoxicated and arguing with his wife and police were called. Aboriginal Community Police Officers Lewfatt and Devine attended and spoke with the defendant and attempted to take the defendant’s wife into protective custody.
The defendant was seated on the ground and began yelling loudly at his wife and striking the ground with clenched fists.  The defendant, with his right hand, removed a 25 centimetre black-handled kitchen knife from the right-hand side of the waistband of his shorts.
The defendant held the knife against his left forearm and said, ‘I’m going to cut myself’.  He then proceeded to slash his left forearm several times with the knife.
The defendant then placed the point of the knife to his stomach.  Police members there told the defendant to put the knife on the ground.  The defendant stood and brandished the knife at police as he walked towards the member Lewfatt.  He held the knife in a manner which enabled him to slash and stab with the knife.  
He was again called upon by police to drop the knife, but the defendant continued to advance towards police member Lewfatt.  The defendant raised the knife towards the member whilst continuing to advance, and the police member Lewfatt employed his olio-resin capsicum spray on the defendant, spraying his face and disabling his eyesight.
The defendant began slashing blindly towards the member with the knife and raised his left hand to his eyes, rubbing them, whilst continuing to slash out with the knife.  The other police member present then deployed his police baton and struck the defendant’s right forearm, forcing him to release his grip on the knife.
The defendant was restrained and handcuffed and was asked if he had a valid reason for carrying the knife.  The defendant replied, ‘For when people make me mad, ‘cause I’m rubbish man, I can’t fight’.”
[2]	The learned sentencing Magistrate sentenced the appellant to three months imprisonment in relation to the offence of assaulting a police officer.  He sentenced him to one month’s imprisonment on the charge of carrying an offensive weapon and he directed that the sentences be served concurrently.  The appellant now appeals against the sentence on the grounds that it was manifestly excessive in all the circumstances, that the learned Magistrate failed to accord adequate weight to the plea of guilty entered by the appellant and that his Worship failed to consider alternative dispositions to imprisonment.  
[3]	At the time that counsel commenced submissions on behalf of the appellant before the learned sentencing Magistrate his Worship indicated that he was “considering a term of imprisonment that your client will have to serve”.  That was a preliminary observation by his Worship reflecting the seriousness of the circumstances that had been described to him.   The effect of that indication was to invite counsel to make submissions as to why such a penalty should not be imposed or as to other penalties that may be considered.  In response counsel made submissions to his Worship which provided some context for the offending.  He indicated that his client had been consuming cask wine since early that morning and, by the time of the incident, was heavily intoxicated.  He had been arguing with his wife and when police arrived he became upset that they were taking her away.  He was described as being a man of 31 years of age who, when in Darwin, “resides in the long grass at Tiwi”.  He had some employment history but that was limited to “odd jobs on CDEP from time to time”.  He was largely unemployed and lived off unemployment benefits.  Further submissions were made as to the early plea of guilty entered on behalf of the appellant, the fact that the officers did not suffer injury and the limited nature of the prior criminal record of the appellant.  A submission was then made that “if a term of imprisonment was to be considered appropriate in this situation, it would be open to explore the option of having it wholly suspended as of today’s date”.  His Worship sought and obtained further information from counsel for the appellant as to the medical condition of the appellant and as to the level of his consumption of alcohol.  
[4]	His Worship proceeded to sentence the appellant and, in so doing, made the following observations:
“In this matter I take into account the fact that the defendant’s pleaded guilty.  He has not pleaded guilty at the first opportunity, but I see, looking at the file, on 24 May 2001 [the day on which the matter was first mentioned before the court] a plea of guilty was indicated.  The matter was then adjourned off to 14 June.  The defendant didn’t come to court on 14 June but it is before the court today.
He’s pleaded guilty today on the second occasion the matter is before the court after an early indication of a plea.  The appropriate discount is 25%.  I take into account the fact that the defendant has no prior convictions for crimes of violence.  I take into account the fact that no injury was caused to the Aboriginal Community Police Officer. 
I take into account the nature of the situation. It was a very worrying situation.  The defendant failed to attract attention to himself when he slashed his left forearm.  He then took it upon himself to advance on police with the knife. He stood and brandished the knife as he walked towards Aboriginal Community Police Officer Lewfatt.  He held the knife in a fashion which enabled him to slash and stab with the knife.
He was asked or called upon to drop the knife.  He did not.  He continued to advance.  He raised the knife while continuing to advance.  The Aboriginal Community Police Officer Lewfatt was forced to use capsicum spray as part of the process of subduing the defendant.  The other aspect of that process was the other Aboriginal Community Police Officer who struck the defendant on the right forearm, causing the defendant to release his grip on the knife.
This is a worrying situation.  To my mind, there has to be a gaol term.  There’s got to be a gaol term to indicate to people in the community that they cannot take [it] upon themselves to take up a knife and advance on police and cause police to be in fear of their safety.  There has to be a gaol term to get [that] into the defendant’s mind.
I was told by Mr Saylor that sometimes when he drinks he gets angry, gets upset.  He plainly got angry on this occasion.  Something has to be done to get the defendant to think that if he’s going to continue to drink that one of the consequences of his drinking might be that it will disinhibit him so that his angry nature comes to the fore. 
If his angry nature surfaces, somebody could be hurt.  Something’s got to be done to encourage the defendant not to get angry and upset or interfere with the lives of other people should he wish to drink.
Reading between the lines, it would appear that the defendant comes from a straitened and unfortunate socio-economic background.  I heard that he lives in the long grass when he comes to Darwin.  I heard that he was drinking from about 9 o’clock on the day of the incident.  He’s also entitled, it would appear to me, to some leniency by virtue of his background.
The appropriate starting point is a term of imprisonment of four months, with a 25% discount.  That reduces it to three months.  The defendant is convicted on charges 1 and 3.  On a charge of assault police, or assault the Aboriginal Community Police Officer, he is sentenced to imprisonment for three months, such imprisonment to commence on 31 July 2001.
On charge 3, the offensive weapons charge, he’s sentenced to imprisonment for one month which is concurrent with the term of imprisonment of three months.  Leave is granted to the prosecution to withdraw charge 2.  On charge 2 the defendant is discharged.”
[5]	It was submitted on behalf of the appellant that, in assessing the gravity of the offence, his Worship failed to appreciate and give due weight to the fact that the incident “did not involve any actual violence” and no-one was injured. 
[6]	In my opinion his Worship was correct in concluding that, in all the circumstances, a term of actual imprisonment was called for. As the respondent submitted the appellant’s actions amounted to a serious assault.  He was armed, highly agitated and quite determined.  Even after he had been sprayed with the capsicum spray he continued his advance towards the police officer slashing blindly as he went.  The incident only stopped when the other officer present struck the appellant on the forearm with his baton.  Although neither officer was in fact injured this was a violent situation.  
[7]	The appellant submitted that the learned Magistrate, whilst acknowledging that the appellant was heavily intoxicated at the relevant time, failed to find that the offence was one that was out of character, given the appellant’s lack of prior convictions for violence.  The absence of prior convictions for offences involving violence was a matter that was noted by his Worship in the course of receiving the appellant’s criminal history. The criminal history included driving offences and dishonesty offences but, as his Worship noted, included no prior record for violence.  The submission made to this Court that the incident was “out of character” was not made to the court below.   Counsel may have thought it imprudent to do so.  His Worship was informed by counsel that the appellant was a person who “drinks at least once per week and he admits that he was ‘full-drunk’ on this occasion”.  He submitted that the appellant had “tried to cut down on his drinking” and that he became “angry from time to time” when drinking.  The agreed facts included the statement by the appellant that the reason for carrying his knife was “[f]or when people make me mad”.  His Worship did not find that the appellant was accustomed to violence or that he was a man whose conduct called for a sentence that served to protect the community.  He simply observed that the appellant must be encouraged “not to get angry and upset or interfere with the lives of other people should he wish to drink.”.  His Worship specifically referred to the fact that he took into account that the defendant had no prior convictions for crimes of violence.  No error on the part of his Worship has been made out.
[8]	In responding to the submission that the sentence should be wholly suspended his Worship set out the matters that I have repeated above.  He considered the seriousness of the offending and the need to provide both general and personal deterrence in the sentencing process.  His Worship gave full consideration to the “unfortunate socio-economic background” of the appellant but, notwithstanding those matters, determined that a sentence of actual imprisonment was required.  His Worship did not, as the appellant submitted, fail to afford weight to the appellant’s prospects for rehabilitation.  Rather he weighed up all relevant matters and determined that the sentence imposed, a short period of actual imprisonment, was appropriate in all of the circumstances. 
The Guilty Plea
[9]	It was submitted that the learned Magistrate found that the appellant had not pleaded guilty at the first opportunity.  That submission is not borne out by reference to the transcript.  Not only did his Worship specifically take into account the fact that there was a plea of guilty but he also looked back in the court file to determine that such a plea had been indicated on an earlier date.  His Worship went on to note that there was “an early indication of a plea” and he concluded that “[t]he appropriate discount is 25%”.  Contrary to the submission made on behalf of the appellant there was no suggestion that the appellant was in any way penalised because an adjournment of the proceedings had occurred before the plea was entered.  This ground of appeal is without foundation and must be dismissed.  
Failure to Consider Alternative Dispositions to Imprisonment
[10]	The appellant submitted that his Worship failed to consider alternative dispositions to imprisonment and, in particular, a partially suspended sentence or the imposition of a  home detention order.  Given that the appellant described himself as a “long grasser” and no submission was put that suggested a home detention order was sensibly open in the circumstances, his Worship was entitled to put aside the prospect of such an order. As to the imposition of a partially suspended sentence his Worship raised with counsel for the appellant at the very beginning of his submissions the prospect that the appellant was facing a term of imprisonment that would have to be served.  In the circumstances that amounted to an invitation to counsel to provide reasons for the sentence to be suspended or for some other disposition to be favoured.  At the conclusion of his submissions counsel for the appellant urged his Worship to “explore the option of having it wholly suspended”.  His Worship clearly did not agree that suspending the whole or part of the sentence was appropriate.  In his remarks on sentencing he confirmed that in his view “there has to be a gaol term”.  He set out his reasons for reaching that conclusion.  In my opinion his Worship was justified in so concluding. The term of imprisonment was short.  No compelling reason for suspending any part of that sentence was identified.
Manifestly Excessive
[11]	The principles applicable to an appeal against sentence are well known.  The exercise of the sentencing discretion will not be disturbed on appeal unless error in that exercise is shown.  There is a presumption that there has been no error.  The appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence was insufficient or excessive.  It interferes only if it can be shown that the sentencing Magistrate was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing Magistrate said in the course of the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error.  The onus rests upon the appellant to demonstrate the sentencing discretion of the learned Magistrate was improperly exercised.  In order to establish that a sentence was manifestly excessive the appellant may show that the sentence was out of all proportion to any view of the seriousness of the offence which could reasonably be taken: Cranssen v R (1936) 55 CLR 509 at 519-520. The sentence must not just be excessive, it must be manifestly so.
[12]	In my opinion the sentence imposed on the appellant was not manifestly excessive.  Whilst it may be described as stern, the sentence was not disproportionate to the circumstances of the offence or the offender.  As I have already observed this was a serious assault and in my opinion it cannot be said that his Worship erred in imposing the sentence in fact imposed. 
[13]	I dismiss the appeal.

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