Ross v Pryce [2003] NTSC 39

PARTIES:	THELMA ROSS

	v

	LEONARD PRYCE

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	66/02  (9926981)

DELIVERED:	17 April 2003

HEARING DATES:	21 March 2003

JUDGMENT OF:	THOMAS J

CATCHWORDS:

CRIMINAL LAW - offences against the person - judgment and punishment - appeal against decision not to suspend sentence.
Criminal Code 1983 (NT), s 188(2)(a), 181(2)(m)
Summary Offences Act 1996 (NT) s 56A
Brian Liddington (1997) 97 A Crim R 400, applied.
R v Simoni (1981) 35 ALR 265, considered.

REPRESENTATION:

Counsel:
	Appellant:	S O’Connel
	Respondent:	R Noble
Solicitors:
	Appellant:	Central Australian Aboriginal Legal Aid Service
	Respondent:	Office of the Director of Public Prosecutions (Alice Springs)

Judgment category classification:	C
Judgment ID Number:	tho200317
Number of pages:	9

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

Ross v Pryce [2003] NTSC 39
No. 66/02  (9926981)

	BETWEEN:

	THELMA ROSS
	Appellant

	AND:

	LEONARD PRYCE
	Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 17 April 2003)

[1]	This is an appeal from a sentence of the Deputy Chief Magistrate imposed on 13 November 2002 in the Court of Summary Jurisdiction in Alice Springs for an offence of aggravated assault.
[2]	On the abovementioned date, the appellant entered a plea of guilty to the following two charges:
"On the 27th  day of November 1999 and 27th day of November 1999 at Alice Springs in the Northern Territory of Australia.
1.	unlawfully assault Emily Wilson.
AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:
(i)	That the said Emily Wilson suffered bodily harm
Contrary to Section 188(2)(a) of the Criminal Code.
AND FURTHER
On the 27th day of November 1999 and 27th day of November 1999 at Alice Springs in the Northern Territory of Australia.
2.	did without lawful excuse, possess and carry an offensive weapon, namely, a pocket knife:
Contrary to Section 56A of the Summary Offences Act."
[3]	The maximum penalty on Count 1 is five years imprisonment.  The maximum penalty on Count 2 is 1 years imprisonment.
[4]	The agreed facts in support of the charge are as follows (tp 2):
"… on Friday, about 10:30 am 27 November '99 the defendant was in Alice Spring.  She went to the Army store in Todd Mall, Alice Springs and purchased a pocketknife, (inaudible 12:25:40), 10 centimetre blade.  She then walked up the Todd Mall to the Todd Tavern about 11 am and entered the Riverside Bar.
In the Riverside Bar the defendant was looking for Emily Wilson.  She found Emily, approached her with the knife she had purchased earlier.  Raised the knife above her shoulder and stabbed the victim in the left arm, the stabbing being so forceful the blade was all the way to the hilt, to the handle, and gone right through the left upper arm.
Apprehended by hotel security until police arrived.  Conveyed to – the victim was conveyed to hospital by ambulance and the knife was lodged in her arm and later underwent surgery to remove the knife.  As a result the …
… victim was admitted to hospital.  And she had no permission to do what she did.  And she declined a record – sorry, a record of interview was conducted and she made full admissions. …"
[5]	The Deputy Chief Magistrate imposed a sentence of six months imprisonment and declined to suspend any part of the sentence.
[6]	The Amended Grounds of Appeal are as follows:
"Ground 1
That the Stipendiary Magistrate erred in that she failed to give adequate weight to the Appellant's lack of relevant prior convictions, her prospects for rehabilitation and her gender.
Ground 2
That the Stipendiary Magistrate erred in that she escalated the seriousness of the Appellant's actions to a point not available on the agreed facts.
Ground 3
That the Stipendiary Magistrate erred in that she failed to properly consider whether the sentence of imprisonment should have been suspended.
Ground 4
That the said sentence imposed by the learned Stipendiary Magistrate was in all the circumstances manifestly excessive."
[7]	It is conceded by Mr O'Connell, counsel for the appellant, that the objective facts of the assault warranted a term of imprisonment.  The real gravamen of this appeal is that the sentence of imprisonment should have been wholly or partly suspended.
[8]	I accept the submission made on behalf of the appellant that there is a two step process required in deciding whether or not to suspend a term of imprisonment (Brian Liddington (1997) 97 A Crim R 400).  The Court must take into account all of the factors relevant to sentence before deciding that a term of imprisonment is appropriate and the length of that period of imprisonment. The second step requires the Court to consider all of the relevant factors again and to then decide whether that term of imprisonment should be suspended either fully or partially.
[9]	The learned Deputy Chief Magistrate had a difficult sentencing exercise because of the paucity of information that was presented to her.  The fact that the knife penetrated right through the victim's upper left arm is in itself an appalling scenario .  The Deputy Chief Magistrate was quite correct to emphasise the aspect of general and specific deterrence.  In the course of her remarks on sentence her Worship said as follows (tp 6):
"You deliberately, apparently, bought the pocketknife.  You deliberately went looking for the victim.  And you caused a very serious injury.  From the description it is probably very lucky that you did not actually end up killing her.  The way that you stabbed down could quite easily have hit her in the main part of the body, rather than just the arm.  And to have forced the knife right through the arm you must have used a lot of force."
[10]	The first two sentences of those comments are supported on the Crown facts.  However, there was nothing before the Deputy Chief Magistrate as to how the victim was positioned at the time of the stabbing, i.e. whether she was sitting or standing and whether her arms were outstretched or by her sides.  There was no evidence as to the trajectory of the blow with the knife.  There was no medical report.  There was no victim impact statement.  There was no statement as to the actual injury sustained by the victim to her upper left arm or the treatment that was required apart from the removal of the knife.  On the limited facts presented to the Court, I do not think it was open to the Deputy Chief Magistrate to find that "The way that you stabbed down could quite easily have hit her in the main part of the body rather than just the arm".  That this could have occurred is of course possible, however, the very scanty facts presented to the Court did not justify the weight that those comments would indicate were given to such a possibility.  Similarly, with the comment (tp 6): “it is probably luck you did not actually end up killing her”.
[11]	There was no evidence as to the sharpness of the knife, the angle at which it penetrated or how the left upper arm was penetrated.  There were insufficient facts to base a finding that there must have been a lot of force used.
[12]	Mr O'Connell, on behalf of the appellant, pointed out that the appellant had not actually been charged with the aggravated circumstance involving the use of the knife.  He referred to the High Court decision of R v De Simoni (1981) 35 ALR 265 and the principle which was established in that authority that in imposing sentence a trial judge may not have regard to a circumstance of aggravation if it had not been specified in the indictment.
[13]	Mr Noble, on behalf of the Crown, conceded that it is usual in these circumstances for the Crown to have charged the appellant with the further circumstance of aggravation that the person assaulted was threatened with a firearm or other dangerous or offensive weapon, namely a knife (s 181(2)(m) Criminal Code).  Mr Noble stated that he was not able to put forward any explanation as to why the Crown had not alleged this further circumstance of aggravation in the indictment.
[14]	The inclusion of this aggravating circumstance would not have increased the maximum penalty which is five years imprisonment.  It was relevant to the seriousness of the offence within the maximum penalty of five years imprisonment.  The omission of this as an aggravating circumstance could have affected the correctness of the exercise of the discretion on sentence.  However, in this particular case I do not consider the error in taking into account a circumstance of aggravation that was not charged in the indictment, has led to a head sentence that was manifestly excessive.  The circumstance of aggravation that the victim suffered bodily harm was alleged in the information.  There was no dispute on the facts that this bodily harm was caused by a knife.
[15]	I do not consider that the matters to which I have referred and the reasons for sentence by the deputy chief magistrate resulted in a head sentence which is manifestly excessive.
[16]	There were a number of other matters also relevant to the exercise of the discretion on sentence.  The appellant was 27 years old, she had no prior conviction for an offence of violence.  She had only one prior matter on her record, a conviction for drive exceed .08 and drive unlicensed on 30 April 1999.  These offences had occurred three years prior to the date she entered a plea of guilty.  In the intervening three years she had not been charged with any offence of violence.  The learned stipendiary magistrate was informed and accepted that the appellant had apologised to the victim of her offending and that the two are now friends.
[17]	On the day the appellant appeared in Court in relation to this matter, she appeared and entered pleas of guilty in relation to two other separate incidents.  There was a charge of criminal damage being an offence that occurred on 23 June 1997 approximately two years before the offence of aggravated assault.  She received a fine in respect of that offence.  The appellant also entered a plea of guilty to offences of failing to provide sample of her breath and drive unlicensed.  These offences occurred on 31 May 2001, some 18 months after the offence of aggravated assault.  For these offences she was fined and an order made for disqualification of licence.  There are no other charges pending and no offences are alleged to have been committed in the 18 months prior to her appearance in court for the disposition of the charge of aggravated assault.
[18]	The learned stipendiary magistrate acknowledged the appellant had pleaded guilty to the offence even though not at an early opportunity but noted this plea of guilty meant the victim did not have to give evidence.  The appellant had made full admissions in her Record of Interview.
[19]	With respect to the issue of consideration being given to a suspended sentence the Deputy Chief Magistrate stated (tp 7):
"….  I am not prepared to suspend the sentence because of the serious nature of the charge."
Her Worship also stated (tp 6):
"So it is not just a matter of a little cut.  It was an extremely serious injury and an injury inflicted by a knife.  Despite the fact that you do not have any other court appearances for offences involving violence I consider that a period of imprisonment should be imposed and I am not prepared to suspend that sentence, even though you have not been in any other sort of trouble."
[20]	I agree with the submissions made by counsel for the appellant that there were other matters which I have already referred to that were relevant to the exercise of the discretion whether or not to suspend all or part of the sentence of imprisonment. I accept that the deputy chief magistrate did not give sufficient weight to those factors in deciding whether or not to suspend the sentence and that to this extent her sentencing discretion miscarried.
[21]	I would allow the appeal.
[22]	Accordingly, I make the following order.
[23]	I confirm the convictions and sentence of six months imprisonment.  I vary the sentence as follows:
[24]	The appellant to be released after she has served two months of the sentence on condition that she be of good behaviour for 12 months.
[25]	Pursuant to s 40(6) of the Sentencing Act, I fix a period of 12 months from the date of her release during which the appellant is not to commit another offence punishable by imprisonment if the appellant is to avoid being dealt with under s 43 of the Sentencing Act.
[26]	The sentence of actual imprisonment to have deducted the amount of time the appellant has already spent in custody with respect to this matter, which is a period of 22 days.
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