PARTIES:					ALFONS OSKA SALZGEBER

						v
			
						GILLIAN RUTH HAYWARD

TITLE OF COURT:			SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:				SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:					No. JA26 of 1995 and JA27 of 1995

DELIVERED:				Darwin 21 November 1995

HEARING DATES:				3 November 1995

JUDGMENT OF:				Kearney J

REPRESENTATION:
Counsel:					
	Appellant:			S. Cox
	Respondent:			J. Adams

Solicitors:		
		
	Appellant:			Northern Territory Legal Aid Commission
	Respondent:			Officer of Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:				kea95044.J
Number of pages:				22

kea95044.J

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

Nos. JA26 and JA27 of 1995

						IN THE MATTER OF the Justices Act

						AND IN THE MATTER OF appeals against sentences imposed by the Court of Summary Jurisdiction at Darwin

						BETWEEN:

						ALFONS OSKA SALZGEBER
							Appellant

						AND:

						GILLIAN RUTH HAYWARD
							Respondent

CORAM:   KEARNEY J

	REASONS FOR DECISION

	(Delivered 21 November 1995)

		The appeals
		On 3 November 1995 the following 2 appeals were argued together:-
		(1)	In proceedings no. JA26 of 1995 the appellant appealed against a sentence of 3 months imprisonment imposed on him by the Court of Summary Jurisdiction at Darwin on 17 August 1995, after he pleaded guilty to a charge of cultivating cannabis. That is an offence under s74 of the Misuse of Drugs Act (NT).  It carries a maximum punishment of 7 years imprisonment; see s7(2)(a) of the Act.  

		(2) In proceedings no. JA27 of 1995 the appellant appealed against a sentence of 15 months imprisonment imposed on him by the Court on the same day, after he had pleaded guilty to a charge of doing a dangerous act.  That is an offence under s154(1) of the Criminal Code.  The maximum punishment is 5 years imprisonment.  
		When dealt with summarily, as here, the maximum punishment which that Court could impose for each offence was 2 years imprisonment.  That is not the punishment reserved for the "worst" category of cases of those types to come before that Court; see Maynard v O'Brien (1991) 57 A Crim R 1 at p6.	
		The sentence imposed on the charge of cultivating cannabis was directed to be served concurrently with the sentence imposed on the charge of doing a dangerous act; the total effective punishment for the 2 offences was 15 months imprisonment.  A nonparole period of 4 months was fixed.
		The grounds of appeal in each appeal, as amended, are identical, viz:-
		(a)	that the sentence was in the circumstances of the offence and of the appellant, manifestly excessive;
		(b)	that the Court erred in failing to give sufficient weight to the circumstances of the offence and matters personal to the appellant; 
		(c)	that the Court erred, by failing to consider sentencing options alternative to imprisonment.
Ms Cox of counsel for the appellant restricted ground (a) to the appeal against the sentence of 3 months imprisonment for cultivating cannabis.

		The proceedings in the Court below
		(a)	The admitted facts on the charge of dangerous act
		The charges were dealt with together by consent.  The appellant admitted that the following facts stated by the prosecutor were correct.
		During the evening of 14 June 1995 the appellant was at his residence at Lot 2970 Wooliana Road, Daly River with his wife and the following men (the victims of his subsequent dangerous act), Timothy Dorer, Freddie Mungara and Warren McGregor.  These three men were drinking beer and became intoxicated; when they left one of them (said to be Mr Dorer), stated that he intended to seek out a woman known as Yunga, to threaten and to harm her.  
		At that time Yunga had recently been a victim of domestic violence inflicted in the course of her relationship with a relation of Mr Dorer's.  Yunga is related to the appellant's de facto wife and on 14 June she was being sheltered at the appellant's residence.  
		The appellant was resting on his bed in his caravan, when he heard the three men returning.  He became concerned and annoyed at this, because they were intoxicated and he feared they would cause trouble.  
		He decided to use a shotgun in his possession to shoot at the victims from what he considered was a safe distance as far as they were concerned, to convince them that he did not want them to return.  He intended to "pepper" them with No.2 buckshot, to sting them and to deter them from returning.  He did not intend that they suffer the perforations to their clothes or the injuries they in fact sustained.
		The appellant loaded the firearm, a 'Bikel' single-barrel shotgun, with a live round of No.2 buckshot.  He went outside, to the corner of his caravan; there he had a view of the driveway along which the 3 men were approaching.  The appellant's eyesight is poor.  When the men were about 35 metres away he aimed for their legs calling out:-
		'Piss off.  Don't you come up here.  I've had enough of you.'  
He then fired the round; the buckshot hit the victims in their legs.
  		The victims all received medical treatment, were 'medivacced' to Royal Darwin Hospital, and later discharged.  None of the injuries they sustained were life-threatening; they consisted of minor buckshot wounds to the shins.  All three were back at Daly River the next day.  Mr Dorer received buckshot wounds to both legs, as he was in the middle of the three men when the shot was fired.
		The shotgun proved to have been in an unsafe condition: its stock was held together by several wrappings of packaging tape; the foregrip under the barrel in front of the trigger was held to the barrel by several wrappings of electrician's tape; the breech was semi-seized and difficult to open or to load or unload. The shotgun was not registered in the appellant's name.  It had once been registered but the appellant had no knowledge of the owner's current whereabouts. A shotgun of the type used here is a firearm Class A, in terms of s3(1) of the Firearms Act. The appellant did not hold a current Northern Territory shooter's licence, required of a person using such a firearm; see s27 of the Firearms Act.  It is not suggested that at the time he held a temporary permit under s34(1); he told the Police that he had not renewed his shooter's licence because his eyesight was too poor.
		The appellant was arrested on the night of 14 June.  He took part in an audio-taped interview by the Police at the Daly River Police Station.  He made full admissions to Police as to what he had done.  When asked the reason for his actions he said that he intended only to scare off the three men, and did not intend to injure anyone.  He also said that he was concerned for the welfare of Yunga.  
		These were the facts relevant to the charge of doing a dangerous act.  

		(b)	The admitted facts on the charge of cultivating cannabis
		As to the charge of cultivating cannabis, the appellant admitted to the following facts.  He  resides at Wooliana Road, Daly River, on a large rural block.  About 30 metres behind his caravan he had planted numerous cannabis seeds in the gully of a dry creek bed.  He tended the seedlings and eventually succeeded in growing nine mature cannabis plants, which when seized on 15 June had an average height of 1.5 metres.  The plants were in individual plots in potting mix and mulch, and connected to a sprinkler system.  The appellant had cared for the plants for about three or four months.  
		On 15 June 1995 Police attended at the appellant's residence in relation to the charge of doing the dangerous act on 14 June, set out above (pp3-5).  They saw the cannabis plants and seized them.  In an audio-taped interview with Police at the Daly River Police Station the appellant admitted cultivating the cannabis.  He said that he was growing the plants in order to give cannabis to his friends.  

		(c)	The submissions in mitigation
		In mitigation, Ms Davidson the then counsel for the appellant, provided further details relating to the offences charged and the appellant's circumstances.  They were not disputed. 
		On the evening of 14 June the appellant was home with his de facto wife.  Also present that evening was the young Aboriginal woman known as Yunga and the three men (the victims) earlier mentioned.
	Timothy Dorer and Freddie Mungara are the sons of the appellant's de facto wife.  They have lived with him since 1972; his relationship with them is akin to that of father-son.  The three men in question had been drinking since about 5 o'clock; they were quite drunk when the appellant arrived home.  He went to bed early that night and tried to go to sleep. 
		However, the three were talking and laughing quite loudly. He overheard Freddie Mungara (not Timothy Dorer) talking about Yunga, saying that he intended to cripple and harm her.  Yunga, a relation of the appellant's de facto wife, had been badly beaten up by her husband; she had come to the appellant's home for shelter, and had been living there for about a week.
		When the appellant heard Freddie Mungara, he went out and told him not to say those sorts of things, and warned him to be quiet.  He told Yunga that there might be some trouble; he told her and his wife to run off into the bush, which they did.  He then went back to bed.
		He lay there and heard Freddie Mungara say to the others, 'Come on.  Let's get her'.  He then heard a commotion and voices, people yelling, someone screaming.  He became concerned and he went outside.  He could not see anybody.  The voices died down, so he went back to the caravan.
		Later he heard the voices of people approaching, so he took the shotgun, loaded it with one round of No.2 buckshot, and went back outside.  Buckshot No.2 is used primarily for shooting birds and game.  Its effective range is about 30-metres.  The firearm in question is a 12-gauge single barrel shotgun. 
		The appellant saw the 3 men approaching.  They were very noisy and very drunk.  Ms Davidson continued:-
		"He says that by now he had had enough of them.  He didn't want them to come any closer.  He wanted them to go away.  So he called out to them, 'Piss off.  Don't come here.  I've had enough of you.'  They kept walking towards him, so he shot at them, one round - - - he thought he was shooting at them from a safe distance, in that the pellets would only sting them, would bounce off their trousers and their legs, and sting them rather than actually hurt them.  He is an experienced shooter. He has actually held a shooter's licence in the past.  

		He knows how to use that gun and he knows the range of those pellets, and he thought that at that distance there would be no chance at all that they would actually be hurt.  Now, the Police say the distance was 35 metres.  He thought it was further.  It was dark, not a strong moonlight.  It - - -  could have been further than 35 metres, because that distance [stated by the Police] is based on the victims' estimate.  They were very drunk.  [The appellant] thought they were further away than that.  
		He thought that from that distance he would pepper them rather than perforate them, to use the words of the [Police] precis; sting them to deter them from coming closer, but not actually have the bullets embedded in their flesh.  In fact, the bullets didn't become embedded in their flesh, they did bounce off.  The injuries suffered were minor buckshot wounds, which, I am instructed, were in the nature of grazes rather than deeply-penetrating wounds.
   
		- - - one of the victims is here in court, that is Mr Timothy Dorer.  He is willing to give evidence, but he is very shy about speaking in front of all of these people.  But I would ask you to accept that what he has told me is that he didn't receive any injuries of any weight, and he has apologised to Mr Salzgeber for what happened.  In turn, Mr Salzgeber has apologised to him.  

		I am instructed that there's no hard feelings between them, or [between the appellant and] any of the other two victims who wanted to come today, but they are at  Port Keats, so they weren't able to come.  Mr Salzgeber instructs that he aimed that gun at their legs, at their shin area, certainly no higher than that.  He didn't realise that he had hit them at first.  He was very surprised when he did realise and he says that he felt terrible about it.  
		He immediately took them to the Health Clinic at Daly Mission and the Police were notified.  They were taken to Darwin at 4 am the next morning, merely as a precaution, and they were discharged immediately and sent back to Daly River.  The Police attended the next day at his place, and that is when they found the cannabis, which I will address you on later.  He made full and frank admissions to them and told them exactly what had happened and what his intentions were on that day.

 		- - - when the victims did return to Daly River everyone apologised to each other and there's now no hard feelings amongst those people.  Mr Salzgeber says that he is extremely sorry about this.  He is not a violent person and he normally lives in harmony with these people and there has never been any trouble like this before - - - in recent years.  His remorse is evident by his plea of guilty and further by his actions in taking the men to the Health Clinic, talking to the police and making full admissions to them about that.  

		Your Worship, he does have two priors for aggravated assault but they are an extremely long time ago, 26 years and 24 years ago.  I am instructed that they were minor aggravations.  On one occasion the aggravation was because [the victim] was a woman, and that [involved] a push.  On [the other] occasion it was a fight in a native camp.  - - -  the fines were minor, - - - and he has certainly not offended in any violent matter, or in any serious manner really, since that date.

		- - - he is 61 and he has lived in the Northern Territory since 1957.  He lives on this property at Daly River.  He has a long association with Daly River.  He is the captain of the Daly River Volunteer Fire Brigade. He is very proud of the fact that he has never been on a pension and he has always worked and supported himself and his family.  His work is picking mangoes, pruning mangoes.  He grows mangoes on his own property, and other tropical fruits.  - - - he hopes to sell [them]. That has only been a recent undertaking.  He is the only one that knows how to look after [them].
		
		Your Worship, what I am asking the court to consider is a suspended sentence or a term of home detention." (emphasis mine)

		Ms Davidson referred his Worship to the sentencing in various 'dangerous acts' cases: Good v O'Brien (unreported, Martin CJ, 25 March 1992); R v Asher (unreported, Angel J, 2 February 1995); R v Hutton; and R v Hoessinger.  She submitted that this was not an aggravated dangerous act; the appellant was not intoxicated; there was no serious injury, and never any actual or potential danger to life; nor was there any intention to cause injury.   Further, the victims were not completely blameless in the incident.
		As to the cultivation of the cannabis plants, Ms Davidson submitted that this was the appellant's first attempt at cultivating cannabis.  He had a sprinkler system and other materials available for the purpose of running his mango farm.  It was not a commercial operation; he grew the cannabis merely to share with his friends, as a matter of hospitality.  He had received complaints from them that cannabis was expensive to buy and so he cultivated some so as to provide it to them and to smoke some himself.  She said that she was instructed that some of the plants were 1.5 metres high, though others were smaller.  He had no prior convictions for any drug offence.  She submitted that the appropriate punishment was also one of a suspended sentence of imprisonment.
		The prosecutor submitted that the charges were "extremely serious", and that a custodial sentence was warranted. He noted that in Good v O'Brien (supra) the weapon used was an air rifle and the person charged was only 17 years of age.  

		(d)	His Worship's remarks on sentence
		In sentencing, his Worship briefly reviewed the facts and said:-
		"- - - you are a man now of 61 years of age.  You have a history of minor troubles with the law.  Ms Davidson drew my attention, quite properly, to the fact that your last offence of violence was in 1971 and the only one before that was in 1969, so long ago that I can, I think, safely disregard those as shedding no light upon your present character; and, in relation to the charges involving the shotgun, the dangerous act charge at least, I think that is fair enough.

		However, your more recent offences, which have been pretty consistently minor matters, demonstrate to my way of thinking that you have been intermittently at least for the last - or certainly through the '80s, pretty well indifferent to the requirements of the law in various regulatory respects, and I refer her just in general to the unroadworthy, uninsured, unregistered motor vehicle charge, drive unlicensed charge, no helmet charge, another unsafe motor vehicle charge, some charges in relation to unauthorised slaughter and pet-meating - - - and a fishing charge and a hinder police charge.

		These [were] all committed between 1980 and 1987, covering a fair spectrum of human activities by someone who lives in the bush, and showing a fair degree of indifference to the requirements of the law in a number of areas; which - - - perhaps is related in a way to your indifference to whether this shotgun was registered, whether you were licensed, and perhaps also relevant to the cannabis charge to which you have pleaded guilty.  You are not, of course, the only person who lives out bush, Mr Salzgeber, who takes a fairly selective attitude to legal obligations in these respects, including firearms and cannabis charges.

		So coming to the facts of the dangerous act charge.  I am satisfied that the victims of your act, these three young men [who] had been at your home - and two of them seem to have been your stepsons - are well-known to you. I am satisfied that after this event you made your peace with them and they with you.  They have apologised for their behaviour, which caused you to arm yourself and discharge the shotgun; you have apologised for yours, and things have settled down between you.

		I am satisfied that your reason for wanting to keep these young men away from your house that night was not only the fact that they were making a racket, because they were drunk, and keeping you awake, but, more particularly and more importantly, that one of them had uttered not so much a threat but declared his intention to do some harm, give a flogging, to a girl, a relation of your wife who was, as it were, under your protection and you desired to protect that girl by keeping the boys away.  

		You first succeeded in doing this by 'growling' at them, and they went away.  They may have come back. There may have been some trouble in the bush.  - - - They certainly did come back after that, and that is when you, for a reason which escapes me and makes no sense at all, decided that words were no longer sufficient, and got your gun.  

		Now, Mr Salzgeber, that was an extremely stupid thing to do.  It is almost always a stupid thing to do when a person arms himself with a firearm or other dangerous weapon in a situation where a confrontation may result, and it is stupid because if your bluff, or the person's bluff, gets called, then chances are the armed person will use his weapon.  

		If you create such situations that is the sort of trouble you are asking for and you are just raising the ante in the confrontation to a degree, which, on the facts of this case, was certainly not warranted at all at that stage.  I can't see any reason why your presence alone, which had succeeded in chasing these boys away once, would not have succeeded in chasing them away again.

		However, you went further in your stupidity than arming yourself and fronting these lads.  You told them to 'piss off'.  They didn't go immediately.  You had loaded the gun.  You aimed it in the direction of their legs and discharged the gun, intending the pellets to strike their legs and expecting, I am told, that at the range - which you may have mistaken because it was dark and because your eyesight is not perfect - at that range the pellets would not do anything more than sting these young men.

		Mr Salzgeber, I think I can accept that as your state of mind, although it is a pretty reckless state of mind.  Ms Davidson says you are an experienced shooter.  That is fine.  But I cannot believe, Mr Salzgeber that your experience is enough to tell you when and at what range shotguns pellets are likely to bounce off or go through a pair of jeans, - - -.

		- - - it was no more than a wild guess.  It was extremely reckless.  As it was, it turned out to be wrong but only slightly wrong, which is extremely fortunate for the young men, and fortunate indeed for you, Mr Salzgeber.  There was enough sting left in the pellets to go through the jeans and wound the young men. I am not sure whether the pellets were left in any of their legs.  I would be surprised if no pellets were left in anyone's legs.  They were all given medical attention.

		Now, I accept, without reservation, Mr Salzgeber, that as soon as you realised that you had indeed wounded them you felt terrible about what you had done.  You did everything right from there on.  You took the boys to the clinic at Daly River, which, of course, meant that the police would find out almost immediately about the incident - that is, you were making no attempt to hide what you had done and you were only concerned with their welfare.  You have pleaded guilty to the crime and there is no doubt about your remorse.

		However, Mr Salzgeber, neither you nor anybody else in this Territory should think for one minute that a person can point a firearm at another person and discharge that firearm intending to hit them without the matter being taken very seriously indeed.

		The danger was not only that you would do to these young men what you did do, but that a stray pellet might hit a soft part of their body and cause a serious and lasting injury - the eye is the obvious possibility - and at this sort of range nobody - not you, not anybody else, Mr Salzgeber - can entirely 
		rule out that a stray pellet might hit one of their eyes.  It didn't, fortunately.  

		This is not a case where you have fired a shot in the air or into the ground to frighten the young men, which is a sort of thing that stupid people do more often than they should in the Territory.  Nor is it a case where you have fired at an inanimate object, such as the case cited to me by Ms Davidson of Asher.  You fired at human beings intending to strike them in circumstances where nothing amounting to legal justification arises, and, in my view, nothing really exists to excuse either the introduction of a deadly weapon and still less its use in that situation.  

		In my view, this is a serious dangerous act.  I have regard to the case of Asher, - - - Asher had got angry with the institution (sic) of the Corroboree Tavern and went in there and fired away at some sort of screen or bar and some - one or two of the patrons were hit by ricochet or splinters from the bar, which is something he never intended.  It is not a case where he was aiming at people intending to hit them.  That is as I remember it.  And he was sentenced to 18 months imprisonment, totally suspended by Angel, as Ms Davidson has reminded me.

		I have also had a good look at the case of Good v O'Brien, - - - Martin J's - eventual sentence on that young man was primarily recognising the fact that the offender was 17 years old, that he was, effectively, - - - a first offender - - - .

		Mr Salzgeber, you are far from young yet not so old that your age itself causes me to regard you as being in an exceptional category.  This offence is, in my view, a far more serious one than Good's offence was because the weapon you were using was a far deadlier weapon that an air rife, and furthermore, of course, you were actually pointing it at a person rather than as a vehicle - that is to say, the target in the centre of your sights was the person itself and the risk of something worse resulting was much higher in this case than in Good.  It was just a much more dangerous thing to do.

		I give you full credit, Mr Salzgeber, for your work history, your independence and your efforts in working through these years, looking after yourself and your family, but I can't, I believe, properly accede to Ms Davidson's request that I suspend, fully suspend, any sentence that I impose. 
	
		Indeed it seems to me I would be remiss in my duty if I did not serve notice to you and to anybody else that hears about this case that nobody can really hope to fire a gun at anybody in this Territory unless justified, without expecting to go to gaol.  One would need truly extraordinary circumstances, in my opinion, for such a result to happen.  I see no such extraordinary circumstances in this case.  

		For that offence you will be sentenced to 15 months imprisonment.

		- - - 

		I come now, Mr Salzgeber, to the second offence, that is of cultivating cannabis.  I am told, Mr Salzgeber, that you planted a number of seeds, that you succeeded in raising nine plants and raising them to a considerable height by the time the police happened upon them.  The largest of these plants - and, from the sound of it, most of them were in the range of something like a metre and a half in height, and there were nine of them.  A trafficable quantity of cannabis plants begins at five, so this is close to twice that quantity and these are sizeable plants.

		I am not informed, Mr Salzgeber, as to the weight of leaf or head or whatever may have been obtained from these plants, but, plainly, from the description of their height alone, the amount of cannabis on those plants would have been far more than you could use yourself.  

		Now, you told the police what you had in mind for the cannabis from those plants was to give it to friends of yours, and Ms Davidson has expanded on that, speaking of the hospitality you expected to extend to people who dropped in from time to time. The Misuse of Drugs Act provides a sentence of seven years for that offence, maximum sentence; two years in this court, when the prosecution chooses this jurisdiction, as it has in this case.  

		The commercial potential of what you did, Mr Salzgeber is obvious enough.  I must say that it defies my understanding of human nature that, if you had cropped these plants within a week, or a month or two, or whenever they were finished growing, and if you found yourself in possession of a pound or two of cannabis, as I dare say you would have, that being in possession of that much cannabis and having shown the disregard for the law that I spoke of when speaking of your criminal record, it seems to me impossible, Mr Salzgeber, if somebody had not offered you a sum of money for some of that cannabis that you would have declined that offer.

		In saying that, I do not infer that that was, in any way, your intention.  It just seems to me so unlikely that a battler in your position would refuse that offer, if that source of money became available.  I believe, Mr Salzgeber, that the classification of offences under our Misuse of Drugs Act, commercial/trafficable, indicates Parliament's concern, not so much with people's actual intention with their quantities of cannabis but with the potential that such quantities offer in the hands of those who find themselves growing or possessing trafficable/commercial quantities.  It is difficult to accept that once you started supplying this cannabis as a gift that you would have refused an offer of money for a portion of it, as I say.

		This is, in my view, a fairly serious cannabis-growing offence.  It is certainly an offence which attracts the provisions of section 37 of the Misuse of Drugs Act which directs me to consider imprisonment for the offence unless I can find particular circumstances, either of you or of the offence, given that your intention was supply at least, whether it is commercial or not.  I do not regard that as being a particular circumstance of the offence and that seems to be the only circumstance of the offence that is at all particular.

		As for your own circumstances, Mr Salzgeber, it appears to me that section 37(2) disqualifies your age itself as being a circumstance; nor, to my mind, is the fact that you have no previous drug offences a circumstance, and, in my view, your criminal history is such that I cannot regard you as being a person of previous good character and cannot take that into account as a personal circumstance; nor do any of the matters Ms Davidson has alluded to, in my view, amount to such a circumstance.
		
		That being so, I propose - indeed can see no proper alternative but to sentence you to imprisonment for that matter also.  It appears to me, from what I understand of the size of these plants, that the proper sentence would be three months imprisonment. The question arises whether that sentence should be concurrent or cumulative upon the first sentence.  

		I really can't see much reason why the sentences should be concurrent, but that is what I am going to order.  I think it would be quite proper to make them cumulative, but you have never been sent to gaol before, Mr Salzgeber - or at least as far as I know you haven't; I will just check that - no, you haven't - and you are not a young man.  Weak as these circumstances may be, I propose to make that three months concurrent with the 15 months I have imposed - - - .

		So the total sentence is therefore an effective sentence of 15 months imprisonment, upon which I order a non-parole period of four months." (emphasis mine) 

		The submissions on appeal
		Ms Cox submitted that the appellant was well aware of the trouble which his two step-sons, Timothy Dorer and Freddie Mungara, could cause when drunk.  He had fired the single round of birdshot from a distance of at least 35 metres, and the resulting wounds were grazes and not penetrating wounds.  
		She referred to the appellant's prior convictions.  He had appeared before the Darwin Court of Summary Jurisdiction on 10 occasions over the 27 years between 1960 and 1987.  Most of his offences were traffic offences; the others were offences such as hinder Police, possess a gill net, and pet-meat offences.  He had received either small fines or released on a bond without conviction.  I accept that it is a record of petty offending, and one which had in any event ceased altogether 8 years before the present offences.  
		Ms Cox conceded that his Worship had taken into account the matters urged by Ms Davidson in mitigation (pp6-10), but submitted that the Court had given insufficient weight to those matters.  There is some force in that submission.  In the circumstances, it appears to me that his Worship failed to give sufficient weight to the circumstances in which the appellant found himself, as follows.  
		When his Worship treated (p11) the appellant's previous convictions as indicating on his part "a fair degree of indifference to the requirements of the law", he omitted to mention that the appellant had kept out of any trouble since 1987, some 8 years ago.  
		Ms Cox stressed that the appellant's sole motivation in arming himself with the shotgun was to protect Yunga who had been threatened by three drunken men.  That is, the appellant's sole motivation in acting as he did was to prevent the occurrence of what possibly would have been a very serious breach of the peace, by preventing three drunken young men from inflicting harm on a defenceless woman.  In particular, there was nothing to warrant his Worship's inference at p11 that part of the appellant's reason for wanting to keep the three young men away was simply that they were "making a racket" and "keeping [him] awake."
		Ms Cox submitted that his Worship had erred when he concluded:-
		"I can't see any reason why your presence alone, which had succeeded in chasing these boys away once, would not have succeeded in chasing them away again."
The fact was that these three "boys" were all drunken young men in their early 30's.  They had gone away when the appellant had "growled" at them but they had then returned once, clearly enough hunting for Yunga in the bush - see the references (p7) to "commotion", "yelling" and "screaming" - and now they were returning again.  These were three drunken young men, one of whom had expressed an intention to harm the young woman Yunga.  They had kept on advancing, after the appellant told them to go away (p8).
		In the exceptional circumstances which prevailed, including the time and place I consider it is perfectly understandable that the appellant aged 61 and the only man there, should have thought fit to arm himself in the manner that he did, though his subsequent shooting at the drunken young men so as to "sting" them after they ignored his warning to go away, was wholly wrong and reckless in the extreme.
		Ms Cox noted that his Worship's observation (p12):-
		"I am not sure whether the pellets were left in any of their legs.  I would be surprised if no pellets were left in anyone's legs."
was contrary to the evidence.  There was no suggestion that pellets were left in any of the young men's legs, as Mr Adams of counsel for the respondent rightly conceded.
		Ms Cox conceded that, as his Worship said (p13), the appellant used "a deadly weapon"; she stressed however that it was loaded only with buckshot.  That is a factor which clearly also had to be taken into consideration.
		In the light of these matters Ms Cox submitted that by not suspending the sentences or imposing home detention, his Worship had imposed a sentence which was unjust and unreasonably severe in all the circumstances.
		I accept Ms Cox's submission that in the circumstances there was no need for any element of personal deterrence in the sentence for the dangerous act; it is clear that the circumstances themselves have already sufficiently brought home to the appellant the lesson in that respect.  
		As to the offence of cultivating cannabis Ms Cox observed that there was no evidence before his Worship of any intention to exploit the cannabis commercially; she submitted that the Court had acted on mere suspicion.  I consider that his Worship was fully entitled to apply his common sense to the facts disclosed, but he could not incorporate in his punishment an element referable to an offence with which the appellant had not been charged.
		Ms Cox submitted that set against other sentences for the cultivation of cannabis, the sentence of 3 months imprisonment was manifestly excessive.  She handed up the details of 107 sentences handed down in the Court between 1991 and 1995 for cultivating cannabis, by way of comparison.  Judging by those sentences, I consider it is clear that a sentence of 3 months immediate imprisonment for 9 plants is manifestly excessive for a person who had not hitherto been dealt with for a drug offence and who had an excellent work record.  In this connection the appellant's prior record of     petty offences, none of which had been committed in the last 8 years, should not be held against him.
		Mr Adams of counsel for the respondent rightly stressed the highly dangerous nature of the appellant's conduct.
		It is clear that the sentencing in Good v O'Brien (supra) is distinguishable, on the facts; in Asher's case the firearm was not aimed at anyone, and the damage was caused by a ricochet.  I have also considered the sentencing in R v Porter (unreported, Kearney J, 1994), but that was really a case of excessive self defence.  R v Keys (unreported, Thomas J, 23 August 1995) involved a more serious outcome of the use of a firearm than here and resulted in a suspended sentence; however, the facts were very different and each case must be considered on its own facts.
		Assessed in the coolness of hindsight in particular, the appellant's behaviour is strongly to be condemned.  I endorse all of his Worship's observations as to the "extremely reckless" nature of the appellant's behaviour, and his observations I have emphasized at pp12-14.  However, inadequate weight was given to the circumstances in which the appellant carried out what was, as his Worship said, "a serious dangerous act."  The circumstances in which this dangerous act took place were in my view "extraordinary circumstances", to use his Worship's words.  Excessive weight was given to the appellant's record of offending (a record not of any consequence in itself) which had ceased 8 years before.
		As this is an appeal against the exercise of the sentencing discretion, the appellant must show that it was improperly exercised.  It is not a question of this Court approving his Worship's disposition but whether it so exceeded the occasion as to be unreasonable, or whether there were any circumstances - such as a misunderstanding of a salient feature of the evidence - which vitiated the exercise of the discretion.  I have indicated in the course of this judgment the circumstances which vitiated the exercise of the discretion in this case.
 		I uphold ground of appeal (b) in relation to the "dangerous act" charge.  This is clearly a case where the appropriate sentence for that offence in all the circumstances was a suspended sentence of imprisonment.
		As to the charge of cultivating cannabis, in the light of the comparative sentencing material the sentence of 3 months immediate imprisonment was manifestly excessive.  As to the application of s37(2) of the Misuse of Drugs Act, the need to have regard to "particular circumstances" does not preclude an examination of the whole of the circumstances of the offender; the law in that regard is set out in Duthie v Smith (1992) 107 FLR 458 at pp464-7.

		Conclusions
		In all the circumstances I consider that the appeal should be allowed in part and the sentencing varied as follows.  The sentences of 15 months imprisonment for the "dangerous act" charge, and of 3 months imprisonment for the cultivation of cannabis charge, and the direction that those sentences be served concurrently, are affirmed.  I set aside the nonparole period of 4 months.  I direct that service of the effective sentence of 15 months imprisonment be suspended forthwith, on the appellant entering into a bond in the sum of $3000 to be of good behaviour for a period of 3 years.
		Orders accordingly.

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