Palmer-Peckham v Westphal [2012] NTSC 74

PARTIES:	NATHAN PALMER-PECKHAM

	v

	LINDSAY WESTPHAL

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY AT ALICE SPRINGS

JURISDICTION:	APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION AT ALICE SPRINGS

FILE NO:	JA8/2012(21141937)

DELIVERED:	28 September 2012

HEARING DATE:	24 September 2012

JUDGMENT OF:	OLSSON AJ

CATCHWORDS:

Magistrates – Appeals from Magistrates – Appellant convicted of engaging in conduct resulting in the contravention of a Domestic Violence Order – Breaches of three separate provisions of Order – Whether error on part of sentencing magistrate demonstrated – Whether sentence manifestly excessive – Appeal allowed.

Cranssen v R (1936) 55 CLR 509; Brandenburg v Hales and Carlon [2006] NTSC 3: Salmon v Chute and Anor (1994) 94 NTR 1. 

REPRESENTATION:

Counsel:
	Appellant:	J Milsom
	Respondent:	CW Roberts

Solicitors:
	Appellant:	CAALAS
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	Ols1206
Number of pages:	15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Palmer-Peckham v Westphal[2012] NTSC 74
No. JA 8 of 2012 (21141937)

	IN THE MATTER OF the Justices Act
	
	AND IN THE MATTER OF an appeal against the sentence of the Court of Summary Jurisdiction at Alice Springs	

	BETWEEN:

	NATHAN PALMER-PECKHAM
	Appellant

	AND:

	LINDSAY WESTPHAL
	Respondent

CORAM:	OLSSON AJ

REASONS FOR JUDGMENT

(Delivered 28 September 2012)

Introduction
[1]	The appellant, by notice dated 4 June 2012, appeals against a sentence imposed on him by a stipendiary magistrate, consequent upon his plea of guilty to a charge of engaging in conduct that resulted in contravention of a Domestic Violence Order  contrary to s120 (1) of the Domestic and Family Violence Act (NT).
[2]	When the matter came before the learned magistrate the appellant pleaded guilty to the charge. After hearing submissions from counsel for the parties the learned magistrate recorded a conviction and sentenced the appellant to 2 months imprisonment from 14 May 2012, suspended immediately, with an operational period of 12 months from 15 May 2012.
The appeal
[3]	The appeal is founded on two grounds, namely:
(1)	That the sentence imposed was manifestly excessivee; and
(2)	That the learned stipendiary magistrate erred by failing to consider sentencing options other than imprisonment.
Relevant narrative facts
[4]	The appellant is a 25-year-old aboriginal man. At some stage, on a date which was not established before the learned magistrate, he entered into a relationship with an aboriginal woman named Delina Inkamala.
[5]	It appears that this relationship persisted for about 12 months until trouble developed between the two of them. 
[6]	However, evidence was tendered to establish that, on 20 June 2011 at Alice Springs, an order pursuant to the provisions of the Domestic and Family Violence Act was made against and thereafter served on the appellant.
[7]	This restrained him from:
(1)	harassing threatening or verbally abusing Delina Inkamala;
(2)	causing harm to her; 
(3)	approaching, entering or remaining in her company when consuming alcohol or any other intoxicating drug or substance or when under the influence of alcohol or another intoxicating drug or substance; and
(4)	approaching, entering or remaining at any place where she is living, working, staying, visiting or located if consuming alcohol or another intoxicating drug or substance or when under the influence of alcohol or other intoxicating drug or substance.
The order further required the appellant to submit to a breath test and/or analysis when required by police to do so in relation to the order.
[8]	Delina Inkamala testified before the learned magistrate that a reciprocal domestic violence order had been made against her in relation to the appellant at about the same time.
[9]	No evidence was placed before the learned magistrate concerning the specific circumstances that gave rise to the making of the two orders.
[10]	The learned magistrate accepted that, at the relevant time, Delina Inkamala was residing with her mother at Erumba Street Alice Springs. She was working with the Aboriginal Interpreter Service.
[11]	He accepted that the appellant had come to the mother's premises between 10 and 11 AM on the morning of 8 December 2011. He was adversely affected by alcohol and in what the learned magistrate described as "an agitated state of jealousy". He apparently thought that Delina Inkamala had been sleeping with another man – a situation that she later vigorously denied to him.
[12]	Delina Inkamala was not at home at that time and the appellant was eventually persuaded to leave. He went off elsewhere and continued to drink.
[13]	The learned magistrate found that the appellant returned later in the afternoon, having continued to drink in the interim. At that time Wendy Driffen and Melissa Stockman and her young daughter were visiting Delina Inkamala’s mother, but Delina had still not returned home.
[14]	The learned magistrate described what then ensued was that the appellant was agitated, could not sit still and was placing about. He kept repeating drunkenly "'Where is she? Where's Delina?'"
[15]	The evidence indicated that Delina Inkamala arrived back at her mother's premises about half an hour after the appellant had returned there. She herself had had a few drinks, but there was no evidence to indicate that she was highly intoxicated.
[16]	There was a dispute on the evidence as to precisely what occurred thereafter, it being asserted that, amongst other things, the appellant assaulted Delina Inkamala. Such was the state of the evidence that, whilst the learned magistrate thought that this was probably so, he was not prepared to make a finding to that effect beyond reasonable doubt.
[17]	Be that as it may, in elsewhere describing an altercation that undoubtedly did take place as a result of the appellant accusing Delina Inkamala of "mucking around with a married man", the learned magistrate had this to say:
"….the other evidence before me from yourself and from others is that she didn't take this lying down, she was giving as good as she got. She was swearing back at you, she was saying 'You shouldn't be here, get out of here. What did you let him in here for?'"
[18]	Eventually, Delina Inkamala's mother telephoned the police, who later attended. When he saw her doing so the appellant left. 
[19]	In considering sentence the learned magistrate pointed out that the appellant had breached the domestic violence order in no less than three respects. 
[20]	He noted that the appellant had no substantial antecedent record and was entitled to credit for a timely plea. He accepted that, whilst the appellant had a problem with alcohol when in the town camps, nevertheless he had work available to him at Haast’s Bluff and good prospects of rehabilitation.
[21]	After dealing with the relevant narrative events and making the point that the appellant had behaved badly in the presence of an 11 year old female child the learned magistrate commented:
"The point I'm trying to make out of all this is that you not only breached or contravened the domestic violence order by coming there in the first place, but you maintained the breach, you continued the contravention. You were not going to go away until you were able to get some answers from Delina. Now, I can understand the urge, but I don't accept that way you put it into action. Because, what that led to was a potentially explosive situation….."
[22]	The learned magistrate went on to point out that the potential for violence was absolutely obvious. He said that the appellant must have realised that Delina Inkamala was the sort of woman who would stand up for herself and that the contravention of the order was both persistent and contemptuous. As he put it – "… the whole day, largely, was one long contravention of this domestic violence order."
[23]	He went on to say:
"The order wasn’t made for fun, these orders are absolutely serious, they've got to be obeyed. They are one of the few things that, to any degree, keep the peace in the dysfunctional society which we have throughout the Northern Territory. I regard all the circumstances of your breaching of this domestic violence order as extremely serious and absolutely towards the upper end of such offending, not the medium, the upper end of such offending."
[24]	He noted that the maximum penalty for contravening a domestic violence order was imprisonment for two years. He took as his starting point a sentence of imprisonment for six months, which is he reduced to an actual sentence of imprisonment for two months to take into account the early plea, the appellant’s prior good character and his prospects for rehabilitation. He then immediately suspended the sentence, with an operational period of 12 months.
Principles as to the approach of the Court to appeals against sentence
[25]	It is trite to say that the principles applicable to an appeal of this nature are well settled.  They derive from authorities such as Salmon v Chute and Another , and Cranssen v R .  With respect, they were very conveniently summarised by Thomas J in the course of her judgment in Brandenburg v Hales and Carlon.
[26]	She reiterated the oft-made point that it is fundamental that the exercise by a magistrate of the sentencing discretion is not to be disturbed on appeal unless error in that exercise is demonstrated, it being presumed that there is no error. 
[27]	It is not enough that an appellate court considers that it would have imposed different sentence or that it thinks, for example, that a sentence is over severe.  It interferes only if it be shown that the sentencing judicial officer was in error or acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence.  Error may appear in what the sentencing judicial officer has said, or the very terms of the sentence itself may be such as to patently manifest such error.
Consideration of the appeal
[28]	In the course of his submissions, counsel for the appellant advanced the following propositions:
(1)	the learned magistrate erred in characterising the circumstances of the case as a particularly serious example of its type. No physical harm had been caused to the protected person and the prosecutor had characterised the offending as being only in the medium range of objective seriousness;
(2)	the appellant had desisted from being in the presence of the protected person after a time and the learned magistrate was incorrect in stating that the breach of the domestic violence order was carried on "all day, basically".
(3)	The objective seriousness of the offence should have been taken to be towards the less serious end of the range and the penalty imposed was not merely outside the usual sentencing range but was clearly and obviously excessive.
(4)	The learned magistrate had failed to give sufficient weight to the appellant's complete lack of relevant previous criminal history, his timely plea and his financial circumstances. He was only 25 years of age, a single man in receipt of centre link benefits (with some capacity to pay a fine) and had been found to be of previous good character.
(5)	A starting point of imprisonment for six months indicated that, not only had the learned magistrate commenced at a manifestly excessive level, but that he had also not adequately taken into account other alternative means of punishment, including capacity to pay a fine.
(6)	Section 120 of the Domestic and Family Violence Act prescribes two alternate maximum penalties, namely, 400 penalty units or two years imprisonment. This implies that sentences involving actual or suspended imprisonment ought to be reserved for the most serious class of case and in personal and financial circumstances different to those of the appellant.
(7)	A first instance sentence of imprisonment was not appropriate in the circumstances and either a monetary penalty or a community work order should primarily have been considered.
[29]	The respondent contends that the learned magistrate was justified in taking a serious view of the relative objective gravity of the offending and that, given the circumstances as above summarised, the factors of both general and personal deterrence were extremely important.
[30]	It was pointed out that the penalty imposed was only one 12th of the statutory maximum and that it simply has not been established that there is a usual sentencing range. Mr Roberts submitted that so-called comparative sentences were of limited assistance because each case had to be considered on its merits and individual circumstances varied considerably.
[31]	He conceded that the inflicting of actual physical harm had not been established, but submitted that that is not the sole criterion against which the objective seriousness of the offending is to be determined. 
[32]	He submitted that the gravamen of the appellant’s offending was that no less than three conditions of the order had been breached, the breaching had been deliberate and it had consisted of conduct extending over a significant period of time - involving two separate forays to the prohibited premises in an increasingly drunken and aggressive state.
[33]	Attention was invited to the fact that the statute specifies intimidation as one of the forms of domestic violence sought to be prevented by the operation of orders made pursuant to the Act. Intimidation is relevantly defined as conduct that causes fear or apprehension of violence or regular and unwanted communication by any means. Physical harm is not the sole or main criterion. The appellant's conduct was plainly a contemptuous contravention of a court ordered sanction.
[34]	In my view the respondent correctly identifies that the ultimate desisting and departure by the appellant was consequent upon the arrival of Julian Palmer and the imminent arrival of the police. It was scarcely a voluntary desisting in the true sense of that word.
Conclusion
[35]	I consider that Mr Roberts, of counsel for the respondent, is correct when he points out that the inherent seriousness of the appellant’s offending is the fact that the breaching conduct extended over some period of time and was part and parcel of a course of conduct that had commenced mid-morning. It was designed to intimidate and harass the protected person and was aggravated by the appellant’s increasing intoxication and continued allegations of infidelity on the part of the protected person.
[36]	I also accept his submissions to the effect that the learned magistrate specifically and correctly acknowledged all of the relevant mitigating factors pertinent to the appellant and that it is to be inferred that he did give due consideration to alternative sentencing options of a fine or community work order, as these were specifically raised by counsel for the appellant.
[37]	I accept that there can be no doubt that, as Mr Roberts submitted, the learned magistrate gave a very generous discount in recognition of those factors.
[38]	I am unable to accept that a sentence of imprisonment was outside of a range of reasonable sentencing outcomes for the offence to which the appellant pleaded, particularly bearing in mind the nature and extent of the offending and the fact that it undoubtedly amounted to a contemptuous contravention of a court order.
[39]	It is stating the obvious to say that offences of this type are prevalent and can lead to serious consequences. The factor of general deterrence is of particular importance and, in the case of this offender, it clearly needed to be brought home to him that persistent and multiple breaches of the order, of the type that occurred, cannot and will not be tolerated.
[40]	True it is that the learned magistrate, in the course of what were extempore reasons, did not embark upon a detailed discussion of alternative penalties available and the reasons for preferring the imposition of a suspended sentence of imprisonment over other alternative forms of penalty. As did Mr Roberts, I accept that it is not clear how the learned magistrate arrived at the net length of sentence that he actually adopted.
[41]	However, it is abundantly apparent why he opted for the general approach that he did – one that, hopefully, would act as an effective deterrent against a repetition of the type of conduct here under consideration.
[42]	At the end of the day there are two aspects of the sentencing approach adopted that are of concern.
[43]	The first is that the starting point of six months is very high for a first conviction for an offence of this generic type in which no physical or apparently lasting emotional harm was inflicted on the protected person.
[44]	Whilst I accept that there is not and cannot logically be a settled sentencing tariff for offences of this nature, the fact remains that a custodial sentence of six months for a first offence not involving harm appears to be well outside the range of sentences that have been imposed in the past.
[45]	Reference was made to the cases of Atkinson v Eaton and Midjumbani v Moore in each of which a sentence of seven days imprisonment, actually to be served, was imposed.
[46]	Those cases stand as no more than examples of the fact that, when a court has determined that actual service of a custodial sentence is to be served, this is usually of a relatively modest period – at least where harm has not been established. 
[47]	I respectfully agree with what was said by Riley J (as he then was) in Midjumbani v Moore concerning his analysis of the relevant provisions of the Domestic and Family Violence Act (NT) and the proper approach to sentencing having regard to its provisions.
[48]	The second aspect is that it is not possible to derive from the reasons expressed by the learned magistrate the basis on which he arrived at the ultimate reduction from 6 to 2 months imprisonment.
[49]	He certainly intimated at the outset of his sentencing remarks that he proposed to allow a reduction of 30% in recognition of a timely plea and then, later, said:
"Nevertheless, I take into account your early plea, I take into account your character, your prospects for rehabilitation, and that leads me to sentence you in two steps. I think a sentence of actual imprisonment, of imprisonment, is definitely called for in terms of this breach.
Taking into account all the factors, both positive and negative, you are convicted, you are sentenced to 2 months prison from yesterday, 14 May 2012……… But, I suspend that immediately. The reason I suspend it immediately is my view about all your positive prospects of rehabilitation and your good character in the past………"
[50]	This situation suggests to me that, in developing his extempore reasons, the learned magistrate may well, at least intuitively, have eventually realised that his starting point was too high. Absent such a realisation, I am unable to perceive any logical basis for the greatly reduced sentence finally arrived at.
[51]	In my opinion the appellant has demonstrated error in the sentencing process and also that the sentence imposed was manifestly excessive. It therefore falls upon me to re-sentence him.
[52]	In doing so, I have no hesitation in agreeing with the point made by the learned magistrate concerning the importance of domestic violence orders and the need for the courts to regard breaching of them as serious matters.
[53]	The fact that the legislature introduced a specific enactment to deal with the matters referred to in it and mandated quite significant maximum sentences constitutes a clear indication that deliberate breaching of such orders is to be dealt with in a manner which provides adequate underpinning of the scheme of the legislation.
[54]	I also agree with the conclusion of the learned magistrate that, such was the nature and extent of the breaching conduct, the recording of a conviction and the imposition of a custodial sentence were plainly indicated. Equally, I further agree that, given the appellant's prior lack of offending, it would be appropriate to fully suspend the sentence –at the same time providing an effective sanction against further offending.
[55]	In all the circumstances, I allow the appeal, set aside the sentence imposed (but not the recording of a conviction) and substitute for it a sentence of imprisonment for 21 days. That sentence will be fully suspended with an operational period of 12 months, also to run from today.