SUPREME COURT OF NORFOLK ISLAND
Nobbs v Mewburn [1999] NFSC 4
Court of Petty Sessions Act 1960
ROY ANTHONY NOBBS v STEVEN JOHN MEWBURN
NO. SC 4 OF 1999
CORAM: BEAUMONT CJ
DATE: 9 SEPTEMBER 1999
IN THE SUPREME COURT )
) SC 4 of 1999
NORFOLK ISLAND )
IN THE MATTER OF: An Appeal under section 229(1) of the Court of Petty Sessions Act 1960 in its application to Norfolk Island
BETWEEN: ROY ANTHONY NOBBS
Appellant
AND: STEVEN JOHN MEWBURN
Respondent
REASONS FOR JUDGMENT
BEAUMONT CJ:
9 September 1999
INTRODUCTION
The appellant Roy Anthony Nobbs, was charged in the Court of Petty Sessions under the provision of s 61 of the Crimes Act (NSW) 1900 (“the Crimes Act”) in its application to Norfolk Island. The charge was that the appellant assaulted a woman at Taylors Road, Norfolk Island in November 1998. Although the charge was an indictable offence, the matter was dealt with by the Court of Petty Sessions summarily, with the consent of the parties, under s 476 of the Crimes Act. The appellant pleaded guilty and was convicted, and sentenced to complete twelve detention periods at the Detention Centre. He now appeals against this sentence under s 229(1) of the Petty Sessions Act 1960 on the ground that the penalty imposed was excessive. Although the appeal is in the nature of a re-hearing (s 234(1)), the proceedings in this Court were conducted in the main by reference to the depositions and exhibits in the Court of Petty Sessions.
THE RELEVANT STATUTORY PROVISIONS
Section 61 of the Crimes Act makes provision for the offence of common assault by relevantly providing that whosoever assaults any person although not occasioning actual bodily harm, shall be imprisoned for two years. Pursuant to s 476(2) of the Crimes Act, the maximum penalty which could have been imposed upon the appellant was a term of imprisonment not exceeding two years or a fine not exceeding 50 penalty units, or both.
Section 4 of the Periodic Detention Act 1996 empowers a court to order periodic detention by relevantly providing:
“4. (1) A court –
(a) which convicts a person of an offence against a law of Norfolk Island; and
(b) which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months,
may, instead of sentencing the person to imprisonment, by order –
(c) sentence the person to complete such number of detention periods at a detention centre, as the court specifies; and
(d) direct that the person be released from custody subject to any order that may be made under subsection 9(2).
(2) The number of detention periods that a person may be required to serve under an order shall be calculated at the rate of 1 detention period for each week of the term of imprisonment to which the person would otherwise have been sentenced.”
THE FACTS RELATING TO THE OFFENCE
According to the Prosecution, the appellant entered the victim’s bedroom at her residence in Taylors Road in the early hours of the morning, on Thursday, 19 November 1998. She was then in bed with her young child. The appellant appeared to be heavily intoxicated. He sat down on the bed next to her. He then picked up from the floor the victim’s packet of cigarettes and lit one. After a brief conversation, the victim also lit a cigarette. The appellant then assaulted the victim. He grabbed hold of her neck, exerting such pressure on the throat that she was then unable to breathe. The victim struggled free, but the appellant again grabbed the area around her throat, and struck her face several times. He the pushed her body down between the bed and the wall of the room.
The victim was able to break free and ran to her children, who were standing in the hallway. The appellant next dragged the victim into the kitchen area, where he slapped her across the face a number of times. The victim was able to run from the house to a neighbour’s residence, where she contacted the police.
A medical examination of the victim indicated swelling and bruising in the area of the right eye; laceration and swelling in the right lower jaw; bruising in the area of the throat; and bruising of the lower abdomen.
THE APPELLANT’S EVIDENCE ON PENALTY BEFORE THE COURT OF PETTY SESSIONS
The Prosecution acknowledged that the appellant had displayed genuine remorse and had been co-operative with the police.
The appellant then gave evidence to the Court of Petty Sessions on 9 February 1999 as follows:
He lived on Norfolk Island. He was employed as a panel-beater and painter of a fleet of buses.
He had been drinking on the night of the offence. He was “fairly” intoxicated.
At that time he was “in a relationship” with the victim. On that night, somebody had told him that he “wasn’t the only one in the relationship”, and that she “was seeing someone else at the same time”. This was why he called at the victim’s home. He was “pretty angry”. However, the Prosecution’s version of the events (above) was “basically correct”.
Some time after the assault on the victim, several of her brothers injured the appellant in an “altercation” in which they “asked [the appellant] outside” the RSL Club. In the fight, the appellant received a broken nose, a fractured jaw and sore ribs.
The appellant was now on “amicable terms” with the victim’s family.
The appellant earned, on average, $600 per week. He was paying off a mortgage on his home at the rate of $300 per week. He paid his wife $50 per week maintenance. He was also paying off debts which accumulated when off work for twelve months a couple of years ago after breaking his leg.
THE PRE-SENTENCE REPORT
Section 6 of the Periodic Detention Act provides:
“6. (1) A court shall not make an order under section 4 unless –
(a) the court is satisfied that it is appropriate for the offender to undertake such an order; and
(b) the offender submits himself or herself to a medical examination by a medical practitioner, if so required by the court; and
(c) the court has received a pre-sentence report in respect of the offender; and
(d) the court has explained to the offender –
(i) the effect the proposed order would have; and
(ii) the consequences of non-compliance with the order and the circumstances in which the offender would be taken to have breached the order; and
(iii) that the court has the power under this Act to review the order on the application of the Director or the offender; and
(e) the court is satisfied that the offender consents to undertaking such an order.
(2) For the purpose of paragraph (1)(a) the court may have regard to such matters as it considers appropriate, including –
(a) the pre-sentence report referred to in the paragraph (1)(c); and
(b) where a person has submitted to a medical examination by a medical practitioner, as required by the Court – the report of that medical practitioner in respect of that examination; and
(c) a report by an officer, as required by the court.”
The pre-sentence report, by Sergeant B P McGahey dated 17 March 1999 was relevantly to the following effect:
The appellant’s date of birth was 18 April 1963. All of his family (mother, father and sister) were Island residents.
As to his career, the appellant had been employed, mainly as a spray painter and maintenance worker. He was then employed by Pinetrees Tours as a spray painter and panel beater.
An explanation of the terms and conditions of weekend detention had been given to the appellant, including the opportunity given, in that connection, to assist the community with work on the partly completed Emergency Control Centre at the Airport.
THE REMARKS BELOW ON SENTENCE
In proposing a periodic detention order, the Court of Petty Sessions said:
“This matter is a charge under S61 of the Crimes Act 1900 and is an indictable offence which carries a penalty of two years imprisonment. From the evidence presented by the prosecution this offence took place during the night of 19th November 1998. At the time the offence was committed the victim … was at home asleep in her bed when the Defendant entered into her bedroom and sat down on the bed.
The evidence is that the Defendant was upset as he had been in a relationship with the victim and was upset at the thought that the victim was seeing someone else.
From the evidence of the Defendant he stated that he was intoxicated to a large degree and was emotionally upset at the time. The evidence is that the victim at the time was woken and spoken to by the Defendant and after a short period was struck several times to the face and held by the throat by the Defendant. The resultant injuries to the victim are bruising to the throat and bruising to the right eye. The Defendant had no other excuse for the actions taken that night other than those already mentioned.
Mr Brown for the Defendant in his submissions stated that the incident was at the lower end of seriousness of offences and that it was appropriate for the Court to exercise the provision of [S556A] of the Crimes Act. The Court however takes very serious view of this offence. It has received a pre-sentence report in respect of the offender in accordance with S6(1)(c) of the Periodic Detention Act 1996.
The effect of a proposed order under the Periodic Detention Act would be that you spend each detention period [12 in number] from 7 pm Friday to 4.30 pm Sunday at the Detention Centre.”
Mr Brown, on behalf of the appellant, then indicated his consent to the order, but without prejudice to his right of appeal.
THE APPELLANT’S EVIDENCE ON THE APPEAL
By his affidavit sworn on 13 April 1999 in support of his application for a stay of proceedings the appellant said:
“5. I am presently employed as a panel beater and spray painter by Pine Tree Tours in Norfolk Island. Sometimes my employer requires me to work at weekends, but otherwise I attempt to obtain casual work at weekends in order to raise money to pay my outstanding bills. Those bills are significant, as a result of having broken my leg in early 1996 and having being unable to work for more than 12 months while my leg healed.
6. I own a home at Middlegate, Norfolk Island which is subject to a mortgage to Westpac Banking Corporation. My home loan fell into arrears as a result of breaking my leg, and my mother assisted me with paying my arrears to the bank. I presently pay $40 per week to my mother to repay the money which she paid on my behalf, in addition to paying my bank mortgage of $156 per week. I have a child to whose mother I pay $20-$30 per week as maintenance.
7. I have no assets which I can reasonably sell, and no savings which I can use, to replace any loss of earnings which I may suffer as a result of serving a term of periodic detention.”
The appellant also gave oral evidence in the appeal as follows. He is now working during the week for the Government as a painter, earning about $520 per week. He is up to date with the payment of his debts, including his mortgage and an amount owed to his mother. In addition, he engages in casual weekend work at home. In this connection, he gave the example of painting a friend’s boat. He said he could earn $150 per day working casually on weekends.
CONCLUSIONS ON THE APPEAL
Noting the condition precedent of s 4(1) of the Periodic Detention Act that, otherwise, the person would have been sentenced to a term of imprisonment of not less than three months, it is submitted for the appellant that such a sentence would have been excessive in this case. It is said that the victim’s injuries were at the lower end of the scale, and that the fact that the appellant was intoxicated should be accepted as an extenuating circumstance. Reliance is also placed upon the circumstance that the appellant expressed remorse and pleaded guilty. It is contended that s 556A should have been applied; alternatively, a suspended sentence, or a fine (to be paid by instalments) was appropriate; and that even weekend detention would deprive the appellant of a real opportunity to earn extra income and to liquidate some of his debts.
I have difficulty accepting these submissions, here.
Although this is a statutory appeal by way of a re-hearing, the settled principle is that an appellate court should not interfere with a discretionary sentencing judgment except if there has been an error of principle or fact or the sentence was manifestly excessive, i.e. where the appropriate inference is that the discretion must have miscarried. In my opinion, the present case does not fall into any of these exceptional categories.
I so accept that there is some force in the appellant’s submissions, but the Court of Petty Sessions was bound to take into account other considerations as well. They included the circumstances (1) the time and location of the assault; (2) that the assault was by no means a minor or technical one; and (3) the need to impose a sentence which signifies the community’s rejection of domestic violence.
In short, whilst there were some mitigating factors here, they were by no means compelling. It follows, in my view, that it cannot be said that the sentencing discretion miscarried in concluding that a term of three months’ imprisonment would otherwise have been imposed.
Once this is accepted, for present purposes, the remaining question is whether the weekend detention order was itself a bad exercise of discretion. There is no suggestion that the appellant has any medical problems. And although this Court now has more evidence on the appellant’s desire to earn casual income on weekends, I am not at all persuaded that this aspect of the sentencing discretion miscarried in any sense. Periodic detention for 12 weekends was, in the circumstances, appropriate.
ORDERS
Accordingly, the appeal will be dismissed.
Since a stay of proceedings pending the determination of the appeal has been granted, it will be necessary to vary the times of periodic detention directed by the Court of Petty Sessions.
The orders of this Court are:
1. Vary the notice under s 9 of the Periodic Detention Act given by the Court of Petty Sessions by substituting in par (a) the date 17 September 1999.
2. Appeal otherwise dismissed.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Beaumont.
Associate:
Date: 9 September 1999
Appearing for the applicant: Mr Brown
Appearing for the respondent: Mr Gray
Date of Hearing: 6 September 1999
Date Judgment delivered: 9 September 1999
