IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NIG. 24 of 1980 ) GENERAL DIVISION ) BETWEEN: PHILIP CHARLES WHITE Appellant and THE QUEEN Respondent FOX, MUIRHEAD, REASONS FOR JUDGMENT 4 FEBRUARY 1981 McGREGOR JJ. (EX TEMPORE) FOX J: The judgment and reasons which I deliver are those of the court. Philip Charles White, the appellant, appeals against the sentence imposed upon him on 6 October 1980 in respect of a conviction for manslaughter, recorded against him on 29 September 1980. On that day the appellant was charged with the murder of the deceased to which he pleaded not guilty but guilty of manslaughter. The Crown accepted that plea in discharge of the indictment. On 3 June 1980 the appellant, then unemployed, as he had been for much of the previous year, spent the day drinking in the hotel at Humpty Doo with the deceased and his wife. It seems that the three left the hotel at about 6.30 p.m. and drove to a house adjacent to which were two caravans. In one of the caravans the appellant lived. The home was occupied by the deceased and his wife. The appellant at that time, to quote his own words, "liked" the deceased's wife "more than I should have". In fact, they had agreed to go away together though the evidence does not establish that the deceased knew this. The relationship between the appellant and the deceased, until the events immediately prior to the death of the deceased, had so far as it appears been a reasonably friendly one and there had been no quarrel between them while they were in the hotel. Prior to the day in question, according to the appellant, the deceased had ill-treated his wife to the annoyance of the appellant and on their return to the caravan park on 3 June 1980 the deceased had at least spoken harshly to his wife in the appellant's presence. According to the appellant he became "upset" at this, remonstrated with the deceased and then decided to "scare" him with the appellant's rifle. Outside the caravan park he fired a shot into the air, whereupon, according to him, the deceased laughed and called him an idiot. The appellant then went into the kitchen of the house where the deceased was seated at a table. The appellant reloaded the gun and, so he said, intending only to scare the deceased, discharged the rifle again. In 4 record of interview he said he meant only to shoot up in the air or over the deceased's head but the bullet struck the deceased in the forehead and he died from the wound within a very short time. The deceased had fired the gun from a position at about his right hip, without aiming it, and over a distance said to be about 10 to 12 feet. He said to the deceased, whom he was attempting to scare, "stop picking on her you bastard", the her referred to of course being the deceased's wife. The appellant showed immediate concern at what he had done and ran to a nearby place where he insisted upon having use of the phone to summons an ambulance and the police. The learned Chief Justice sentenced the appeliant on the charge of manslaughter to imprisonment with hard labour for eight years, with a non-parole period of four years. The appellant contends that the sentence was manifestly excessive, and that in sentencing the learned judge erred in fixing a non-parole period of four years which it is said is, in all the circumstances manifestly excessive. We have taken this to mean that the period of sentence which may have to be served before the non-parole period might operate was too long. Counsel has, we think, presented to us all the arguments that can in the circumstances be presented, but we are unconvinced that the appeal should be allowed. In fact, we are of the view that what the Chief Justice did in the way of sentencing was neither severe nor excessive. A particular matter relied upon was, as it is submitted, that the learned Chief Justice erred in finding that the appellant had two or more convictions involving actual violence which suggested that when the appellant was under the influence of alcohol he was given to violence and lack of self control. The particular passage in the considered judgment of the Chief Justice is as follows: "You do, however, have two or more previous convictions involving actual violence, which suggested at the least when you are in drink you are given to violence and lack of control." Doubtless, this passage can be read in various ways, but the court is of the view that the appellant makes too much of them. In fact, a record of prior convictions was tendered. When he was 17 the appellant was convicted of indecent language, two charges of assault on police and two charges of resisting arrest, and it is recorded that he was to be of good behaviour and abstain from intoxicating liquor for 12 months, also not to go into any hotel, "etcetera." The "etcetera" is the way it is recorded and we do not know precisely what it covered. He had subsequent convictions over the next nine to ten years in respect of driving under the influence of liquor or driving with more than the prescribed concentration of alcohol; and at least in two cases he was in breach of bonds upon which he was released, although no action seems to have been taken in respect of them. In September 1972 he was convicted of unlawful assault, and the circumstances of that case were referred to by counsel in the course of their submissions to the judge. It appears several people had been throwing cans and other missiles at the accused or his car near a hotel, and the accused - that is the appellant - drove towards them and hit one or more of them. The appellant had a relatively limited education, leaving school when he was 14, and he told the police he could not read. These are circumstances which doubtless the court should take into account for whatever value they have, but it is plain he did drink too much and was irresponsible, to say the least, on many occasions, for example, when driving the car under the influence of liquor, as well as having been guilty of assault on at least two occaions. The present case is one in which he drove a car while, as he put it, he was drunk, and drove it for some distance, albeit not on roads with heavy traffic. The court therefore feels no error of any significance, if any at all, was manifested in the passage from the judgment of the Chief Justice which we have quoted. The significant matters which attracted the attention of the Chief Justice and also attract our attention are the use by the appellant of a rifle quite irresponsibly without attempting to unload it or to aim it clear of any individual, and using it in a confined space, firing it from the hip in a way in which there was every possibility of some serious injury being done, and directing it in the general direction of the deceased and, of course, killing him. His Honour the learned Chief Justice is perhaps in a better position than this court, taking it as a whole, to understand the nature of this offence and to appreciate the necessity for treating it seriously in this Territory. He did take the view that it was a very serious event and a very serious offence. With respect, using our own judgment on the matter, we must also take the view this was a serious and a very irresponsible act. The fact that the appellant was affected by liquor, perhaps to a marked degree, is in the circumstances a more aggravating factor than otherwise. Therefore, in all the circumstances, we are of the view the appeal should be dismissed, and we go order. I imagine the appellant is in prison? MR GILLOOLY: That is correct. FOX J: Is there any need to make any further order about the sentence being carried out as if the appeal had not taken place? MR GILLOOLY: No, your Honour, not as far as I am aware. He will continue to serve his sentence until it runs out. MUIRHEAD J: The sentence runs from the date of the appeal. Is he treated as a remand prisoner once the notice of appeal is lodged? MR AVERY: I would appreciate an order that the sentence runs from the date he commenced serving it, to remove doubt. FOX J: Without intending to create any precedent as to the practice in these matters, the court will in the circumstances order that the sentence shall be served as if this appeal had not been instituted. Is that acceptable to you? MR GILLOOLY: Yes. MR. AVERY: Yes. AT 3.25 PM THE MATTER WAS ADJOURNED INDEFINITELY