Peter William Hales v Ralton Williams

• Jurisdiction: Northern Territory
• Judge: Riley J
• Judgment Date: 12 August 2004
• Neutral Citation: [2004] NTSC 41
• Docket Number: FILE NO: JA 28 of 2004 (20305800)
• Court: Supreme Court
• Date: 12 August 2004

[2004] NTSC 41

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Riley J

FILE NO: JA 28 of 2004 (20305800)

Between:

In the Matter of the Justices Act

And in the Matter of an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

Peter William Hales

Appellant

and

Ralton Williams

Respondent

REPRESENTATION:

Counsel:

Appellant: A. Nobbs

Respondent: S. Barlow

REASONS FOR JUDGMENT

(Delivered 12 August 2004)

1 This is a Crown appeal against sentence. The issue to be determined is whether a conviction for contravening or failing to comply with a restraining order under s 10 of the Domestic Violence Act that preceded the 1997 and 1998 amendments to the penalty provisions of the section is a second or subsequent offence for the purposes of the section.

2 At all relevant times s 10(1) of the Domestic Violence Act was in the following terms:

‘A person against whom a restraining order is in force who has been served with a copy of the order or the order as varied and who contravenes or fails to comply with the order is, subject to subsection (3), guilty of a regulatory offence.’

3 In its original form the Act provided a penalty of ‘$2,000 or imprisonment for 6 months’ for a ‘first or second offence’. Section 10 was amended with effect from 1 January 1997 by inserting s 10(1A) which was in the following terms:

‘Notwithstanding the Sentencing Act, where a person is found guilty of a second or subsequent offence against subsection (1), the Court shall sentence the person to imprisonment for not less than 7 days but not more than 6 months and shall not make any other order if its effect would be to release the offender from the requirement to actually serve the term of imprisonment.’

4 The section was further amended by amending Act 90 of 1998 to provide:

‘(1A) Despite the Sentencing Act, where a person is found guilty of a second or subsequent offence against subsection (1), the Court must sentence the person to imprisonment for not less than 7 days but not more than 6 months.

(1B) Despite the Sentencing Act, the Court must not make any other order in respect of a person referred to in subsection (1A) if its effect would be to release the person from the requirement to actually serve the term of imprisonment imposed under that section.’

5 On 24 February 1995 the respondent was found guilty of a breach of a domestic violence order. A conviction was recorded but no further penalty was imposed.

6 On 6 February 2002 a further domestic violence order was made against the respondent which included terms that the defendant not approach Lisa Michelle Cooper directly or indirectly or contact Ms Cooper directly or indirectly.

7 That order was served on the respondent on 9 April 2002. Some eight months later, on 11 December 2002, the respondent made telephone contact with Ms Cooper and asked her to revoke the restraining order because it interfered with his wish to obtain employment as a security agent. As a consequence of that contact the respondent was charged with breaching the domestic violence order and the matter proceeded by way of a contested hearing on 2 March 2004 in the Court of Summary Jurisdiction. The learned magistrate found the respondent guilty and in the course of sentencing made the following remarks:

‘Apparently you had good reason to make that telephone call, you had invested in a security agents course, and the very fact of the telephone call breaches the restraining order. There is some indication that a few of your words amounted to an inferential and slight threat but other than that there is nothing to suggest that you would have gone any further and there is nothing to suggest that you did go any further.’

8 The learned magistrate convicted the respondent and imposed a fine of $400. In so doing he declined to regard the conviction from 1995 as a prior offence for the purposes of the penalty provisions of s 10. His Worship did not consider himself bound by the requirement of the section as amended to ‘sentence the person to imprisonment for not less than 7 days but not more than 6 months’. On appeal there is no challenge to the conviction, but the appellant complains that his Worship failed to comply with the requirements of s 10(1A) of the Domestic Violence Act by not imposing at least the minimum mandatory period of imprisonment provided for under its terms. The learned magistrate did not give reasons for choosing to proceed as he did.

9 Statutory provisions imposing mandatory minimum sentences are, by their nature, capable of producing results that are unjust, because the regime requires a court to impose a sentence of a particular kind regardless of the circumstances of the breach of the statutory provision and regardless of the circumstances of the offender. This point has been made time and again in decisions of various courts: Trenerry v Bradley (1997) 6 NTLR 175, Palling v Corfield (1970) 123 CLR 52 at 58, Cobiac v Liddy (1969) 119 CLR 257 at 269. The effect of such provisions is to remove from the armoury of the court the power to exercise leniency where appropriate and, significantly, may require the court to impose a sentence which would, in other circumstances, be regarded as plainly unjust. However the policy behind, and the nature of, the punishment regime is for the decision of the Parliament. The power of the court is limited to construing and applying the words used.

10 It is the submission of the appellant that the sentence imposed by his Worship was not available in law given the previous admitted conviction of the respondent for an offence against s 10(1) of the Act and the penalty provisions contained in s 10(1A) of the Act.

11 The appellant noted that s 10(1), which created the offence of which...