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__________

THE SUPREME COURT OF

THE NORTHERN TERRITORY

SCC 20215301, 20215303 and 2021299

THE QUEEN

and

STUART HIGHWAY ,

NICOLETTE BURROWS and

MICHAEL JOHN BARRY

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON WEDNESDAY 19 OCTOBER 2005

Transcribed by:

Court Recording Services (NT) Pty Ltd

HIS HONOUR: I will deal with Mr Highway and then with Ms Burrows and Mr Barry.

Mr Highway, you have been found guilty of one charge of unlawful damage to property. The particulars of the offence are that on 12 October 2002, you unlawfully damaged property of the Northern Territory Police, namely a Toyota Hilux. The damage you caused was to shatter the windscreen of that vehicle with your fist. The maximum penalty for the offence is imprisonment for two years.

The offending occurred when you and others participated in an event at Raintree Park. You referred to it as a community event and a political rally to talk about drug law reform in the Northern Territory, and specifically the 'drug house' legislation which came into force in August 2002.

You were at the event and conducting a stall there. You noticed the arrival of Police and you packed up your stall. Subsequently, you were seen to be involved in a tussle with Police officers over a piece of apparatus which Senior Constable Cottier described as an 'octa-bong'. Whether or not that item contained cannabis has not been established. However the presence of the 'octa-bong' was sufficient to attract the attention of police and they sought to seize the item. There was something of a tug of war between yourself and an officer for possession.

You were subsequently seen to be on top of a police vehicle and there is a photograph of you in that position. Even later, you were seen by various police officers to approach a police vehicle in which your friend Mr Meyerhoff had been placed. He was in the cage at the back of the vehicle prior to being taken away to be processed.

You were observed to punch the windscreen of the vehicle on a number of occasions and on one of those occasions, the windscreen shattered. The damage done is shown in a photograph tendered in these proceedings. At the time that you caused that damage, Senior Constable Sanders was about to drive the vehicle. She saw you effect the damage. She then saw you move to the side of the police vehicle and proceed to try to smash the side window as well. You did not succeed and you were arrested at that point. Senior Constable Sanders was asked how she felt about your actions and she said that the incident was 'very distressing' and she was 'concerned for myself'. She went on to say that it was also distressing when you tried to damage the passenger window. Your conduct was intimidatory.

You gave evidence before the jury where you admitted that you had been thumping on the bonnet of a police car without actually damaging it and then you said, 'I just went up and hit the windscreen and it just shattered'. You thought the windscreen might have been a bit more sturdy. I accept the police evidence that you struck the windscreen with several blows before the windscreen broke.

Later in your evidence, you said you did not know whether your actions had shattered the windscreen or whether it had been hit by a can of baked beans thrown by someone else. You said you were not aware of the can. The suggestion seems

to have been that the can of baked beans might have hit the windscreen at the same time as you were yourself striking it. The improbability of that happening and the can of baked beans breaking the windscreen without you being aware of the can is obvious.

In cross-examination, you said you were a bit angry and that you were acting to help your mates. How breaking a windscreen can constitute helping your mates eludes me unless it was to intimidate the police in order to cause them to set your mates free.

Notwithstanding your admission that you struck the windscreen and that it shattered, you maintained to the jury that the investigating police had lied in their evidence and effectively, they had combined together to pervert the course of justice. Given that your evidence of what in fact occurred was to similar effect as that given by the Police, there can be absolutely no basis for such a suggestion and it appears to have been a gratuitous, unnecessary and ill-founded slur cast by yourself.

You are not to be punished for your conduct of your defence but it is clearly a matter to be taken into account in determining whether you are entitled to any leniency for accepting responsibility for your actions or for demonstrating remorse for your conduct. You have not accepted responsibility for your actions and nothing in your submissions to me suggests that you feel any remorse at all for your actions on this day.

The offending is serious. It involved an attack upon a police vehicle whilst an officer was in that vehicle, in the performance of her duties. It was intended to intimidate her whilst she was carrying out her duties in what were already quite hostile conditions. Your actions were violent in that the windscreen was broken and the attack continued with an effort to break the passenger window.

The offending was committed in circumstances where the police were being confronted by people in aggressive and unruly circumstances. Vehicles were being damaged by others and the police were endeavouring to restore some order. It was, to use a description found in the evidence, pandemonium. It was, to use your expression, chaotic. You were a central part of that. Your conduct on this day was inexcusable. It is fortunate that police or participants or bystanders were not hurt. Your conduct contributed to the explosive nature of the incident.

I recently dealt with a matter arising out of a different incident but involving one of your fellow participants in the Raintree Park incident. On that occasion I said, and I now repeat, peaceful and lawful demonstrations are an accepted part of the Australian way of life. People are entitled to join together to express views on issues and to object to policies adopted by governments and actions taken by governments. The expression of different and dissenting opinions is a vital part of our democratic processes.

People are entitled to propound views that differ from and conflict with the policies of the elected government and with the views of others in the community. However, the right to present such views is not without restraint. As Angel J observed in Watson v Trenerry (1998) 122 NTR 1 at 7:

'These residual freedoms are not absolute, to be exercised without restraint for they are to be exercised subject to other freedoms and the freedom of others'.

You went well beyond what was appropriate or acceptable and you did so deliberately and in anger.

I have been provided with your criminal history which includes a number of offences of trespass and a number of offences of resist police. Your history for present purposes extends from 1994 through to December 1999. You have not previously been sent to prison. You are not entitled to the leniency that may be extended to a first offender.

In the course of your submissions to me on sentencing, you advised me of suffering three years of stress and concern at not knowing whether you were going to prison. I accept that you were under pressure for that period of time and I take that into account. You say that you will not be involved in protesting of this kind in the future. It is obvious that you would be foolish if you offended in this way ever again.

In the course of your submissions, you emphasised that you did not regard yourself as 'the guilty party' but rather saw yourself as some kind of a victim. You have not shown any acceptance of responsibility nor have you expressed any regret for your actions. You have not shown any appreciation of the reasons for you being in the predicament in which you now find yourself. This is a matter that clearly calls for general deterrence. In light of your observations in the course of the trial and your complete lack of remorse or any indication of acceptance of responsibility for your conduct, personal deterrence must also be a factor to be considered in determining an appropriate sentence.

You provided me with references which talk of your community work in support of various causes. Reference was made to the assistance you provided in relation to problems in East Timor and the particular assistance you provided to an individual East Timorese friend who was suffering an illness. Those matters are very much to your credit.

I accept that you are a person who holds strong views on various issues that concern society and that you are passionate about presenting your views to others. You are a self-styled advocate for change. However, as I am sure you realise, the pursuit of change does not have to involve unlawful and violent acts such as that which occurred on this occasion.

Notwithstanding your view to the contrary, you are not being punished for your politics, but rather you are being punished for breaching the law by smashing the windscreen of a Police motor vehicle in the circumstances that I have described.

I turn to sentence you. You will be convicted. You will be sentenced to imprisonment for a period of eight months. I have considered whether to suspend the whole or any part of that sentence. I have determined that it is appropriate to suspend part of the sentence but not the whole. The serious nature of your offending, your lack of remorse, your failure to acknowledge responsibility for your conduct and your ongoing protestation that you are somehow the victim lead me to conclude that a term of actual imprisonment is appropriate.

I direct that the sentence be suspended after you have served a period of imprisonment of three months. I set the period of 18 months from the date of your release as the period during which you are not to commit another offence punishable by imprisonment if you are to avoid being dealt with pursuant to s 43 of the Sentencing Act. That section provides that should you commit another offence punishable by imprisonment, you will be brought before the Court for the fresh matter, and also in relation to this matter to determine whether the balance of the sentence that I now impose should be reinstated. The sentence will be deemed to have commenced on 18 October 2005.

I will now deal with Nicolette Burrows and Michael Barry.

You have each pleaded guilty to the offence of unlawfully damaging a police vehicle in the same incident to which I have referred. You were both involved in climbing upon a different police vehicle along with one other person and in the process of that exercise, it seems the vehicle was damaged. The photographs made available to me clearly show the partial caving in of the roof of the vehicle. The photographs also show Ms Burrows seated on the vehicle and Mr Barry standing on it.

On behalf of Ms Burrows, it is said that she had been staying with a member of the Network Against Prohibition, Mr Meyerhoff, and became involved with that organisation through him. She was at the event as part of her involvement. She came to be on the vehicle when she saw Mr Meyerhoff climb onto the vehicle in protest against the arrest of another. She climbed onto the vehicle to support Mr Meyerhoff. It is agreed that she was not 'dancing' on the roof but rather that she remained seated.

In relation to Mr Barry, he was involved also in the Network Against Prohibition. He had done some media work on behalf of the organisation and had helped organise events. This was, as he told me, a one-off event for him. He admits climbing onto the roof of the vehicle and standing on the roof of the vehicle in what he now admits was a regrettable mistake. He now acknowledges that he has done a disservice to his cause rather than highlighting and promoting the cause.

Mr Lodge, who appeared on behalf of Ms Burrows, told me that she is now aged 27 but was 24 years of age at the time. She attended school until Year 11 and then has worked in a number of locations. Her interest has been in helping disadvantaged people, including young people with drug problems and people in the sex industry. She has worked in Australia, in South East Asia and in India, helping people with problems. She has done so on some occasions in paid employment and on others, on a voluntary basis. She has a commendable history of being involved with and seeking to assist those who may be regarded as less fortunate members of society.

Ms Burrows now resides in the Australian Capital Territory. She is employed there on a permanent part-time basis as a client support worker in the area of harm minimization. I have a reference from her employer and I also have references from others speaking of her dedication to the causes which she supports. I am told that she is now in a relationship and that her partner was present in Court to support her. She has travelled from the ACT to Darwin for the purposes of these proceedings.

The submission was made that this era in her life is now behind her. She recognises that she acted wrongly and she is regretful for her actions. She continues to hold the views which were being espoused at the time but will seek to pursue those views in a lawful way. She has, as Mr Lodge put to me, given a lot to society over a period of time. It was submitted that she would not offend again.

In her case, she is a first offender and is entitled to leniency in that regard. She has pleaded guilty at an early time and is entitled to leniency for so doing. She has acknowledged her wrongdoing, expressed remorse and indicated that she has moved on and will not be offending again. All of those matters are to her credit.

Mr Barry is to some extent in a similar position to Ms Burrows. He is older, being now aged 44 and is living and working in Canberra. He has been there for approximately 14 months. He is also a passionate supporter of similar causes to Ms Burrows.

He now works as a health promotions project worker with the Canberra Alliance for Harm Minimization and Advocacy. He has a history of working for bodies of that kind who support those who are in need in our society. He acknowledges that what he did on this occasion was wrong. He said it was a one-off mistake and would not happen again.

The references provided to me show that he was previously of good character, and as I have noted, now believes that he has committed a disservice to the causes which he sought to support. Mr Barry has pleaded guilty an early time. He has travelled from Canberra to be here for the proceedings. He is remorseful for his conduct. He has no prior convictions and he has moved on with his life. All of those matters are to his credit.

As I earlier observed, general deterrence is a significant factor in determining an appropriate sentence in these cases. I regard personal deterrence as being of less significance in the circumstances of both Ms Burrows and Mr Barry.

I turn to sentence both Ms Burrows and Mr Barry. They will each be convicted. Although their involvement in the offending was similar to but in my view less serious than that of Mr Highway, they are entitled to credit for the pleas of guilty they have entered and the benefits that flow from those pleas.

They will each be sentenced to imprisonment for a period of five months. I direct that their sentences be suspended forthwith. I set a period of 18 months from this date as the period during which they are not to commit another offence punishable by imprisonment if they are to avoid being dealt with pursuant to s 43 of the Sentencing Act.

As I observed to Mr Highway, that section provides that should either commit another offence punishable by imprisonment, they will be brought back before the Court in relation to the fresh matter, and also in relation to this matter to determine whether the balance of the sentence that I now impose should be reinstated.

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