Mununggurritj v The Queen [2010] NTCCA 17

PARTIES:	CLINTON DATJAPU MUNUNGGURRITJ

	v

	THE QUEEN

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	CA 15 of 2010 (20924933 & 20829498)

DELIVERED:	30 November 2010

HEARING DATES:	22 October 2010

JUDGMENT OF:	MILDREN, SOUTHWOOD & BLOKLAND JJ

APPEAL FROM:	KELLY J

CATCHWORDS:

CRIMINAL LAW – sentence – principles – whether sentence manifestly excessive – whether mental health a factor in considering sentence – whether too much weight given to protection of society – whether sentencing Judge required to place the offending conduct within a notional range and erred by not doing so – appeal dismissed

Criminal Code, s 181, s 188(1), s 188(2)(b), s 188(2)(m)
Sentencing Act, s 5(2)(b)
 
Hoare v The Queen (1989) 167 CLR 348; Markarian v The Queen (2005) 228 CLR 357; R v Engert (1995) 84 A Crim R 67; Veen v The Queen (No 2) (1988) 164 CLR 465; Wong v The Queen (2001) 207 CLR 584; followed

House v The King (1936) 55 CLR 499; Mununggurr v The Queen [2006] NTCCA 16; Palijan v The Queen [2010] NSWCCA 142; R v AJP (2004) 150 A Crim R 575; R v Johnson [2004] NSWCCA 140; R v Way (2004) 60 NSWLR 168; referred to

REPRESENTATION:

Counsel:
	Appellant:	S Corish and G Lewer
	Respondent:	W J Karczewski QC

Solicitors:
	Appellant:	North Australian Aboriginal Justice Agency
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	B
Judgment ID number:	mil10477
Number of pages:	15
IN THE COURT OF CRIMINAL APPEAL 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Mununggurritj v The Queen [2010] NTCCA 17
No CA 15 of 2010 (20924933)

	BETWEEN:

	CLINTON DATJAPU MUNUNGGURRITJ
	Appellant

	AND:

	THE QUEEN
	Respondent

CORAM:	MILDREN, SOUTHWOOD & BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 30 November 2010)

THE COURT:
[1]	This is an appeal against sentences imposed on the appellant on 24 March 2010.
[2]	The appellant pleaded guilty to one count of unlawfully causing serious harm to MM, contrary to s 181 of the Criminal Code and to one count of aggravated assault against WM, contrary to s 188(1), s 188(2)(b)  and s 188(2)(m) of the Criminal Code.
[3]	In relation to the first count, a term of imprisonment for three years was imposed.  In relation the second count, a concurrent term of nine months imprisonment was imposed.  Both sentences were ordered to commence on 27 July 2009, being the date of the appellant’s arrest.  The learned sentencing Judge ordered a restored period of four months imprisonment to be served cumulatively.  This resulted in a total sentence of three years and four months.  Her Honour set a non-parole period of two years.
[4]	The facts of the matter were not in dispute.
[5]	Just after midday on Monday 27 July 2009, the appellant went to House 10, Recreation Road, Yirrkala.  There he sat on the front balcony with his two aunts.  A conversation ensued in which he threatened one of his aunts, accusing her of killing the appellant’s mother, who was his aunt’s sister.
[6]	The appellant said that he was going to hit her for this.  During the conversation, he also threatened his other aunt and accused her of taking his money and his land.  He then left.
[7]	At about 1:30 pm, the appellant returned to the house with a large garden pitchfork.  He walked up the stairs towards his aunts, who were still sitting on the balcony, waving the pitchfork around with both hands in an aggressive manner.  He pointed the pitchfork at his aunts and yelled, “You take my land and my money”.  He got close to both victims who had nowhere to run.  Both of the aunts feared for their safety and jumped off the balcony railing in order to escape from him.  The top of the balcony railing to the ground is a distance of 1.8 metres.  As the aunt, MM, landed on the ground, she suffered immediate severe pain and a deformity in her right leg and could not get up.  The appellant stayed on the balcony for a short time, yelling at both victims, hitting the railing with the pitchfork.  He then left the house.
[8]	Later, the police found the appellant at House 2, Gurrumurru Road, Yirrkala.  The pitchfork was located and seized.  The appellant told the police, “I was going to kill them with that shovel and she jumped over”.  The appellant was later arrested and charged.
[9]	As a result of the assault, the aunt WM was not injured, but the aunt MM received a severely broken right ankle.  This necessitated two operations.  In one operation, a small nail was inserted and in a later operation, a plate was inserted to fix the ankle.  MM was in a plaster cast and could not walk for some weeks.
[10]	Both aunts completed short Victim Impact Statements.  Both indicated that they were frightened when the appellant came at them with the pitchfork.  In her Victim Impact Statement, the aunt MM stated that she still had pains in her leg and thought it may never be fully good again.  She indicated that she was not walking properly and could not visit family and friends, which makes her sad.  She had to give up work and was not getting enough money.
[11]	The appellant had a lengthy criminal history going back to 1986, which included five convictions for aggravated assault, breaches of a suspended sentence resulting in the restoration of the sentence and also breach of a bond.
[12]	So far as the appellant’s personal circumstances were concerned, the learned sentencing Judge noted that he was 34 years old and was aged 33 at the time of the offending.  He is a Yolngu man from Yirrkala.  Yolngu traditions and beliefs are important to him.  He has had very limited schooling and cannot read or write.  He has never travelled out of the Northern Territory.
[13]	At the time of the offending, the appellant was not drunk or on drugs, but he has a long history of substance abuse involving mainly alcohol, cannabis and kava.  The learned sentencing Judge noted that the appellant had started drinking alcohol and kava and smoking marijuana when he was 15 and that it was clear that he had a serious drug and alcohol problem.  Her Honour noted that unless the appellant dealt with that problem, his chances of offending again were very great.
[14]	So far as the circumstances of the offence are concerned, her Honour noted that she had received a psychiatric report from Dr Walton in which it was noted that the appellant suffered from recurring psychotic episodes and had been diagnosed in the past with schizophrenia and with schizo effective disorder.
[15]	Her Honour said that it seemed that the appellant was probably suffering from delusional thinking when he attacked his aunts.  However, Dr Walton’s opinion was that his mental illness did not stop him knowing that what he did was wrong and that delusional thinking did not stop him from planning to go and get the pitchfork and come back and attack his aunts.  Her Honour concluded that she did not think that the appellant’s mental illness greatly reduced the moral blameworthiness of what he did; nor did it seem that his mental illness was likely to make prison harder for him than for a person without a mental illness.
[16]	Some of the other matters to which her Honour referred during the course of her sentencing remarks were that the appellant understood that what he did was wrong and so there was a need to deter him from doing this sort of thing again.  On the other hand, his mental illness was a trigger for aggressive behaviour and others who suffer from a similar problem are not likely to be deterred because the appellant was punished for what he did and so that meant that general deterrence was not a significant factor in sentencing him.
[17]	On the other hand, her Honour considered that community protection must be an important consideration in sentencing the appellant.  Her Honour said that it is clear that the general public including the appellant’s own family is in need of protection from him.
[18]	Her Honour gave the appellant a 25 per cent discount for the appellant’s plea of guilty.
[19]	So far as the breach of the suspended sentence is concerned, the appellant had been sentenced to 12 months imprisonment for aggravated assault and that sentence was suspended after eight months on conditions, which included that the appellant be subject to the supervision of Community Corrections and that he does not drink alcohol, use cannabis or kava or sniff petrol.  A day after his release from prison he breached that suspended sentence by drinking alcohol.  He was remanded in custody for a few days, but no further action was taken in relation to that breach.  One of the directions given to the appellant by Community Corrections was that he was not to leave Yirrkala community without the permission of a parole officer or the police and at any time that he left Yirrkala with permission he had to be accompanied and supervised by an adult member of his family.  The breach that was alleged at the time of sentencing was that on 14 July 2009, the appellant went to Nhulunbuy without permission and alone.
[20]	 The appellant’s counsel conceded at the sentencing hearing that it would not be unjust to restore the whole of the remaining four months of the appellant’s sentence and her Honour ordered that it be restored.
[21]	In relation to the fixing of the non-parole period, her Honour noted that the appellant’s counsel had suggested that a non-parole period ought not to be fixed because the appellant was unlikely to be granted parole.  Her Honour disagreed with that submission, noting that the total sentence of three years and four months was a long time and that the appellant might take advantage of rehabilitation programs in prison to help him deal with his drug and alcohol problems.  She said that it might be considered desirable to have a period of supervision before the appellant was finally released unconditionally into the community; but it was not appropriate for her to make a definite decision about those matters now and that it was better to leave the decision of whether or not the appellant should be released on parole to the Parole Board which can make that decision in the light of all of the circumstances at the appropriate time.
Ground 1 – the learned sentencing Judge erred in her assessment of the seriousness of the offence
[22]	The only comment that her Honour made relating to the seriousness of the offending was that “these are serious offences, especially the offence of causing serious harm to the aunt who broke her ankle”.  Before expressing this opinion, her Honour referred to all of the objective circumstances of the case.
[23]	Section 5(2)(b) of the Sentencing Act requires the Court to have regard to “the nature of the offence and how serious the offence was, including any physical, psychological or emotional harm done to a victim”.
[24]	It was submitted that her Honour erred in not embarking upon an analysis of the relevant factors with a view to placing the offender or the offending conduct anywhere in a notional range of offending conduct.  It was submitted that the assessment of the seriousness of the offence was an essential step in the exercise of the sentencing discretion.  Mr Corish referred to a number of authorities from New South Wales in support of that proposition, but as was pointed out by Mr Karczewski QC on behalf of the respondent, the Crimes (Sentencing Procedure) Act 1999 (NSW) has peculiar provisions in it not reflected in the Northern Territory Sentencing Act, which requires this course to be undertaken.
[25]	Mr Corish submitted that although there was a focus in NSW on that process, it did do not more than what was required by the decision of the High Court in Hoare v The Queen.  In that case, in the joint judgment of Mason CJ, Deane, Dawson Toohey and McHugh JJ, their Honours said:
Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v R (No 2)).  It would represent a departure from that basic principle if a judge, instead of imposing a sentence within the limits of what represented appropriate or proportionate punishment for the crime, were to ‘impose a longer sentence merely because the offender may possibly earn remissions for good conduct’.
[26]	It has never been a settled practice of this Court, so far as we are aware, for sentencing judges to indicate where the level of seriousness of the offending based on its objective circumstances falls within a particular range, although that sometimes is done depending on the circumstances.  No doubt, there are many cases when it would be useful for a sentencing judge to indicate in general terms the level of seriousness of the objective circumstances.  In Markarian v The Queen, it was said:
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is.  The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached.  As has now been pointed out more than once, there is no single correct sentence.  And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
[27]	Their Honours then referred to the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen, in which the Court rejected a mathematical approach to sentencing in which there were the increments to or decrements from a pre-determined range of sentences.  Their Honours noted that it was an approach which departs from principle and should not be adopted because it does not take into account the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender.  Their Honours said:
Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong.  We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.  That is what is meant by saying that the task is to arrive at an “instinctive synthesis”.  This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
[28]	We would therefore reject this ground of appeal.
Ground 2 – the learned sentencing Judge erred in failing to adequately take into account the appellant’s mental health
[29]	Her Honours findings as to the appellant’s mental state are set out in pars [14] and [15] above.
[30]	Mr Corish submitted that the assessment made by Dr Walton was in relation to whether or not the appellant was fit to plead.  It was submitted that an assessment of whether the appellant was capable of appreciating the wrongfulness of his actions for the purposes of an assessment of fitness or even whether a defence of mental illness may be relevant requires different considerations to the consideration of the extent to which mental health factors impact on the assessment of the objective seriousness of the offence and the application of other relevant principles of sentencing.  It was put that the findings that the learned sentencing Judge made in concluding that the appellant’s mental illness did not substantially reduce his moral blameworthiness and the extent to which the learned sentencing Judge linked that finding to an acceptance that the appellant, at the time he committed the offences knew that what he was doing was wrong, was an error.  It was put that the fact that the appellant was fit to plead and not mentally ill at the time of the offending does not mean that his moral blameworthiness is not significantly reduced because of his long-standing mental health problems.
[31]	The difficulty with this argument is that the only evidence which was put before her Honour relating to the appellant’s mental illness was the report from Dr Walton.  Regardless of the reasons why the report was prepared, the report fully justified the comments which her Honour made.  There was simply no basis for her Honour to have found otherwise than as she did.  There was no evidence of a causal connection between his mental illness and the offending.
[32]	The strongest that Dr Walton was able to put it in his report was that he “strongly suspects” that the appellant remains prone to delusional beliefs and that at the time he “strongly suspected” that he was suffering from deluded ideas which were relevant to the generation of angry feelings, but as best as he could determine, he was not in a state where he had lost appreciation of the wrongfulness of his acts.
[33]	Dr Walton was of the view that the appellant is “properly described as a substance addicted person; alcohol cannabis and kava being the principal substances involved” and that “it would seem that (the appellant) had lapsed into a state of anger again directed at his relatives in a context of preceding poly-substance abuse”.  He concluded that he regarded his mental disturbance as a consequence of his substance abuse to be centrally relevant to his misconduct.
[34]	The basis for this opinion seems to be that the appellant accused the aunts of stealing his land and his money and also being responsible, apparently, for the death of one of the aunt’s sisters (the appellant’s mother).  There was no dispute that the sister had died.  Bearing in mind that this was a traditional Aboriginal man, the experience of this Court is that such a claim should be taken with some care.  It is not uncommon for traditional Aboriginal people to blame members of the family of a perpetrator for the acts of the perpetrator.  Whilst some may regard this kind of thinking as delusional, others may see it as simply an expression of a traditional manner of thinking.  In any event, the learned sentencing Judge accepted that the appellant was probably suffering from “delusional thinking” when he attacked his aunts and also accepted that his “mental illness” was a trigger for his aggressive behaviour which meant that general deterrence was not a significant factor in sentencing.
[35]	These findings may have been more favourable than the evidence warranted, but in any event as was pointed out in Mununggurr v The Queen, it is not the law that a person suffering from a mental disorder is on that account alone necessarily entitled to a discount when being sentenced.  The Court referred to the judgment of Gleeson CJ in R v Engert.  Of particular relevance was the passage in the judgment where Gleeson CJ said that:
… in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance.  That was the particular problem being examined by the Court in the case of Veen (No 2).  Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.  In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
[36]	We note that Engert was recently reaffirmed by the NSW Court of Criminal Appeal in Palijan v The Queen.
[37]	We see no error on the part of the learned sentencing Judge in the manner in which she dealt with that aspect of the sentencing discretion and we would reject that ground of appeal.
Ground 3 – the learned sentencing Judge erred in placing too great an emphasis on the protection of the community
[38]	It was submitted that her Honour had gone further than was warranted and had erred in imposing a sentence that served a purpose of preventative detention.  Undue focus on the protection of the community or any concern regarding the danger of the appellant to society should not lead to a heavier sentence than would be appropriate if the applicant had not been suffering from a mental abnormality.
[39]	In Veen v The Queen (No 2) the majority of the Court said:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence.  The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
[40]	It has not been demonstrated that her Honour erred in the manner suggested.  In her sentencing remarks, her Honour said:
The law puts limits on the power of a Court in sentencing people to prison.  You cannot be imprisoned indefinitely as a punishment for these matters, nor until you can be safely released.  The sentence has to be for a fixed term proportional to the offending and to your personal circumstances.
[41]	In our opinion, this ground of appeal has not been made out.
Ground 5 – the overall sentence and non-parole period imposed are manifestly excessive
[42]	It was submitted that the sentence of three years imprisonment, even in the absence of specific error, was excessive and disclosed error in that it was plainly unjust in the House v The King sense.  In support of this ground, counsel for the appellant submitted that the seriousness of the offending conduct should be regarded as towards the lower end of a notional range because of the accepted fact that the applicant was suffering from delusional thinking at the time of the offending; that there was no actual physical contact between the appellant and the victims; that the length of the attack or threat was relatively brief or at least not prolonged; the appellant desisted and there was no suggestion that he pursued or threatened to pursue the victims after they jumped over the balcony rail; the balcony was not especially high off the ground; that the extent of the planning should properly be regarded as minimal; that allowing for a discount of 25 per cent for the guilty plea her Honour must have adopted a starting point of four years imprisonment on count 1 and 12 months imprisonment on count 2, which it was submitted were excessive; and that, although her Honour specifically referred to the totality principle she did not regard the total of three years and four months as disproportionate to the offending as a whole.
[43]	On the other hand, Mr Karczewski QC submitted that in determining the level of seriousness, whilst it is important to note that although there was no physical contact between the appellant and either victim, the basis of the plea was that the appellant foresaw serious harm as a possible consequence of his conduct.  He clearly intended to frighten both women by waving a pitchfork at close and closed quarters and there was no issue that the appellant’s behaviour engendered fear in both women, causing one of them to sustain a significant injury.
[44]	We do not consider that it has been demonstrated that the sentence and non-parole period imposed are manifestly excessive.  We would dismiss this ground of appeal.
Conclusion
[45]	The appeal is dismissed.
------------------------------