Title: PARTIES: –––––
Author: Alison Ward
Last saved by: Bronwyn King
Company: NTG

PARTIES:	REGGIE GALLAGHER

		v

		JOSEPHINE SALZMAN

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE
		NORTHERN TERRITORY
		exercising Territory jurisdiction

FILE NO:	9706909

DELIVERED:	10 November 1997

HEARING DATES:	5 November 1997

JUDGMENT OF:	Thomas J

REPRESENTATION:

Counsel:

	Appellant:	Mr Bamber
	Respondent:	Mr C. Roberts

Solicitors:

	Appellant:	CAALAS
	Respondent:	Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:	tho97012
Number of pages:	10

tho97012

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

No. 9706909

		BETWEEN:

		REGGIE GALLAGHER
			Appellant

		AND:

		JOSEPHINE SALZMAN
			Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 10 November 1997)

	This is an appeal against sentence imposed on the appellant in the Court of Summary Jurisdiction on 15 September 1997.

	The sentence followed conviction upon a plea of guilty by the appellant to the following charge:

	At Areyonga in the Northern Territory of Australia.
	Unlawfully assaulted Peggy Gallagher.
	AND THAT the said unlawful assault involved the following circumstance of aggravation, namely:

	(1)	That the said Peggy Gallagher was a female and the said Reggie Gallagher was a male.

	(2)	That the said Peggy Gallagher was threatened with an offensive weapon, namely a rock.

Contrary to Section 188(2) of the Criminal Code.

	The maximum penalty for this offence is 5 years imprisonment or upon being found guilty summarily as happened in this case, then the maximum is 2 years imprisonment.

	The learned chief magistrate imposed a sentence of 9 months imprisonment commencing on 12 September 1997.  The sentence to be suspended after 3 months and a good behaviour period of 12 months was specified under s40(6) of the Sentencing Act.

	The Notice of Appeal states the grounds of appeal are:

	a)	That the said sentence imposed by the learned stipendiary magistrate was in all the circumstances manifestly excessive.

	b)	That the learned stipendiary magistrate gave too little weight to the lack of relevant prior convictions of the appellant when sentencing.

	c)	That the learned stipendiary magistrate imposed a sentence of imprisonment which was not proportional to the objective circumstances of the offence.

	The agreed facts found proved by the learned chief stipendiary magistrate are as follows:

“On Tuesday 18 March 1997 at around 11.30 pm the defendant picked up a rock about the size of a baseball from outside of where his wife was staying in the Areyonga community.  Walked into the house and into the bedroom where his wife was sleeping.  He accused his wife of drinking with his money the previous weekend.  And with the rock hit her to the rear right-hand side of the head.  He then dropped the rock, punched the victim with a clenched fist to the stomach.  He then ran outside the house.  He was apparently spoken to on 25 March where he made full admissions to the offence.  Whilst the victim was treated, it doesn’t appear that there was any noticeable or any serious injury.”

	A record of prior convictions was tendered in the Court of Summary Jurisdiction and on this appeal (Exhibit P1).  Mr Gallagher has convictions for traffic offences and other matters not relevant to the charge of assault.  He has no convictions for any offence of violence.

	In sentencing the offender on 15 September 1997, his Worship stated his reasons as follows:

	“This is another assault charge.  They’re common.  This, of course, is an offence which is extremely prevalent; that is, a male on female assault often involving a rock.

	Here the defendant goes into the bedroom, his wife is asleep; that’s the admitted fact.  He presumably wakes her up and there’s an argument.  He hits her to the right-hand side of the head with a rock the size of a baseball.  He drops that.  He then punches her with a clenched fist to the stomach.  That was in relation to an argument over money.  A very common background to these kind of charges.

	It is said every day, and of course it’s depressingly repetitive, but it must be said again that the court - the law says that if you do this - and Mr Gallagher must know this - that if you do this to a woman, you are committing a serious offence and the message has to be loud and clear that if you hit a woman with a rock and then particularly if you do something else like punch her, as he did, to the stomach - and I infer that she was not fighting back and relatively defenceless - if you do that you are committing a very serious offence.

	There is simply no other way to send a message than to impose a custodial sentence.  General deterrence has to have emphasis in these matters.  Whether it achieves anything is, of course, very speculative but it must be done.  There must be a prison sentence.  Mr Gallagher must know that to hit his wife with a rock on the head and to punch her in the stomach was utterly and totally without justification, excuse or provocation.

	It is not the worst assault.  She was not seriously injured.  He has pleaded guilty, that will effectively reduce the sentence by approximately 3 months.  But it’s a serious assault, a very common prevalent offence and the sentence would have, in my view, been approximately 12 months.  It will be reduced to nine.  Twelve months in the absence of a plea of guilty, reduced to nine and I propose to suspend it after 3 months.

	The reason for that is that, in fact, this man’s record is, in fact, a good one.  I accept that the family has resolved the problem by them separating, but of course it took them to separate.  She had to get a DV order to ensure that she was protected.  So whilst they have resolved it, they have resolved it through a mechanism which provides protection for her.  That’s a good result in that sense, and they are now able apparently to communicate, but she is no longer with him.

	They had a long marriage and it’s a very sad event to occur after a long marriage.  But the fact is this man has no serious record for violence at all, so the sentence will be suspended after a period and it will be 3 months.  That will be intended to make the message clear to him as well as others.  That’s the specific deterrence element in the sentence.”
	The submission of Mr Bamber is that the learned chief magistrate fell into error when he said “There is simply no other way to send a message than to impose a custodial sentence.”  Mr Bamber further submitted that the learned chief magistrate failed to give the appellant sufficient credit for the fact that he and his wife had been married for 21 years with no suggestion of previous problems between them, that he was a man 44 years of age with no record of violence.  He was a man of good character and had contributed to the community including being a past president of the Areyonga Council.  At the time of the commission of this offence he was unemployed.

	In these circumstances Mr Bamber submits both that the head sentence of 9 months is too long and that the magistrate was in error in not suspending the sentence totally given the appellant’s good record.

	Counsel for the appellant referred to two recent decisions of the Supreme Court R v Peter Jackson No. 9512183 delivered on 12 September 1997, decision of Bailey J and R v Stephen Spencer No. 9508029, delivered on 26 September 1997 decision of Bailey J.

	Both these matters involved acts of violence which resulted in a conviction for dangerous act causing death under the provisions of s154.  In both cases sentences of imprisonment were imposed and totally suspended.  I agree with the submission made by Mr Roberts, counsel for the Crown, that these sentences are not of great assistance in this matter.  Offences of dangerous act do not involve an element of intent.  One of the serious aspects of the offence of assault is that there was a deliberate intent by the appellant to assault his victim.  Whilst it was not in the most serious category of assault, it was nevertheless serious.  The appellant was angry with his wife for what he perceived to be her reasons for travelling into town.  His anger provides no excuse for attacking his wife and assaulting her.  He used a weapon, being a rock, to strike her to the side of the head.  The use of a weapon is an aggravating circumstance to which he pleaded guilty.  This is not a situation of one blow struck in anger.  The appellant followed up the striking with the rock by punching his wife in the stomach.  His wife was vulnerable and defenceless.  She clearly took the situation seriously because as a consequence of this offence she separated from her husband after 21 years of marriage and obtained a restraining order.

	I was also referred to a recent Justices Appeal, No. 14 of 1997, Hill v Pryce decision of Martin CJ delivered on 2 May 1997.  This involved an appeal from a sentence of a magistrate for aggravated assault under s188(2) of the Criminal Code.  It involved the use of a knife and one man stabbing another man.  In the course of his reasons for judgment, Martin CJ stated:

“I do not resile from what has been said about the need for general deterrence in sentencing for offending of this type.  However it must not be permitted to override, in appropriate cases such as this, the effect of mitigating circumstances.”

	With respect I accept this as a principle to be applied on this appeal.  See also Martin Allen Elley v John Andrew Waller No. 94/93 decision of Angel J delivered 20 August 1993.
	It was before the sentencing magistrate that the appellant had been married to Peggy for 21 years.  They have two adult children, a son and a daughter and one grandchild.  All the family still live in Areyonga.

	Following the commission of this offence, Peggy obtained a restraining order under the provisions of the Domestic Violence Act.  The application for a restraining order was not opposed by her husband.  I accept this order was taken out by Peggy to obtain protection in the future.  The appellant and his wife are now separated, although they still maintain communication for the purpose of their relationship with other family members.  I accept that Peggy has taken steps to resolve the situation and there is no suggestion of any continuing problems.

	The consequences of the assault were not serious.  Peggy did attend the clinic and it was conceded by Mr Bamber before the learned chief stipendiary magistrate that she suffered some pain but nothing of a serious or lasting nature.

	I accept the principle expressed in Yardley v Betts (1979) 22 SASR 108 at 112 -113:

  “To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm.  Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes.  But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.  They are summed up, in the aspects relevant to the present discussion, by Napier CJ in Webb v O’Sullivan [1952] SASR 65 at 66:
		“The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be.  Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy.  We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.”
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.”

	In deciding this appeal I also apply the principle applied in Yardley v Betts (supra) that cases of assault require individual assessment and treatment.  There is no presumption one way or the other as to whether imprisonment is the appropriate way of dealing with a particular case.  There is no principle of sentencing which requires that a sentence of imprisonment must be imposed for an offence of assault or in respect of an offence that is prevalent.

	In his reasons for sentence, the learned chief stipendiary magistrate referred to the prevalence of this offence.  This Court is also well aware of the prevalence of such offences.  It was an act of domestic violence.  Domestic violence is causing increasing concern and agitation within the community.  A great deal of publicity is given to the fact that acts of domestic violence are serious and will be dealt with severity in the Court.  As the learned chief stipendiary magistrate stated, the law states that if a man does this to a woman then he is committing a serious offence.

	I do not interpret the magistrate’s statement “There is simply no other way to send a message than to impose a custodial sentence” as an infringement of the principle expressed in Yardley v Betts (supra) to which I have referred.  Rather a total reading of the magistrate’s reasons for sentence indicates he has weighed the gravity of the offence, the need for general deterrence and the mitigating factors relevant to the defendant and determined that this offence warrants a sentence of imprisonment, part only of which should be suspended.

	I am not prepared to find that in coming to this conclusion he was in error.

	Courts have recognised that prevalence of an offence is a factor to be taken into account in reaching a decision in a particular case, Ryan & Vosmaer 1988 33 A Crim R 288:

“..... it must be accepted that the prevalence of a particular offence in a particular locality or generally at the time of the commission to be dealt with must play some part in the sentencing process, particularly in emphasising the importance of general deterrence.  But this cannot be taken too far.”  Lance Joseph Peterson 11 A Crim R 164 Burt CJ at 167.

	Mr Bamber, counsel for the appellant, submits that his Worship did not place sufficient weight on the mitigating factors, in particular the appellant’s age, his prior good character, his contribution to the community, the long period of his marriage without problem and the absence of any history of violence.  I do not accept this submission.  In his remarks on sentence the learned chief stipendiary magistrate has clearly considered all of those factors.

	The penalty imposed may 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 (Peter Najpurki v Luker (unreported) 76/93, a decision of Martin CJ delivered 6 August 1993).  I rely also on the following statement:

“the Court should not interfere with the sentence imposed at instance by substituting its own judgment, unless it is first satisfied that his Worship erred and improperly exercised his sentencing discretion.”  Carlien Nabaltjeri Cook & John Henry Chute (unreported) No. 23 of 1997 a decision of Kearney J delivered 16 June 1997.

	I adopt with respect the following comment by Martin CJ at p7 of the decision of Najpurki v Luker (supra):

“Assaults with weapons which have the capacity to main, mutilate, disfigure, incapacitate or disable another are of a most serious kind.  Such an assault is aggravated if the person perpetrating it goes out of his or her way to become armed with the weapon, and it is worse if the person upon whom the assault is perpetrated is defenceless for whatever reason.  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.”

	Whilst this Court always views with anxious consideration the concept of sentencing a first offender to a term of actual imprisonment, I am not persuaded that in this case the learned chief stipendiary magistrate fell into error nor that his sentencing discretion miscarried.  The appellant has not demonstrated that the sentence imposed is manifestly excessive, either in imposing 9 months head sentence or in not suspending the total sentence and making orders that the appellant serve 3 months imprisonment.

	Accordingly the appeal is dismissed.