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THE SUPREME COURT OF
THE NORTHERN TERRITORY
SCC 21447343
THE QUEEN
and
MERVYN BANKS
(Sentence)
HILEY J
TRANSCRIPT OF PROCEEDINGS
AT DARWIN ON MONDAY 9 MARCH 2015
Transcribed by:
Merrill Corporation
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HIS HONOUR: Mr Mervyn Banks, you have pleaded guilty to those two Counts on
the indictment. So the first one is that on 15 October, you unlawfully caused serious
harm to Kerry-Anne McCoombe. That particular offence is an offence under s 181 of
the Criminal Code and that is punishable by imprisonment for up to 14 years.
The second offence that you have pleaded guilty to is that on the same day,
you unlawfully assaulted Erica White and when you assaulted her, there was some
aggravating circumstances, that is, that she suffered harm and that she is a female
and you are a male. It is an offence under s 188 of the Criminal Code and it carries
the maximum penalty of imprisonment for 5 years.
You have been in custody since the day when you committed these offences,
that is, since 15 October 2014.
At the time when you committed the offence, you were 42 years of age. You had
been in a domestic relationship with Erica White and you also knew the other victim,
Kerry-Anne McCoombe. She is related to you as family on a cousin kind of
relationship.
On 15 October, you and Erica White drank beer together at a place in Ronan
Court, Katherine. You then went to the Stuart Hotel together and you were allowed
to go in, but Erica White was not allowed to go in. She began to get upset and she
swore at you then went back to the residence in Ronan Court. She continued
drinking with Kerry-Anne McCoombe. There was another lady also present there,
Priscilla Nipper.
At about 4 o'clock that afternoon, the three ladies, Erica White, Kerry-Anne
McCoombe and Priscilla Nipper, drove into Katherine township and saw you near the
Coffee Club. They picked you up in a vehicle. You and Erica White began arguing
over jealousy things. When you got to Stutterd Street, the two of you got out of the
car and continued arguing. As you were arguing, another woman, Roberta Curry,
came along. Erica suspected that Roberta Curry had been drinking with you at the
Katherine Hotel and she struck her once to the mouth area. You started yelling at
Erica White and then she began hitting you, but not very hard.
Erica White threw a water bottle at you, which missed. You then punched
Erica White with a closed right fist to the face near her left eye. I have seen
photographs of the swelling to her left eye. You chased Erica White around the car
and you pushed her into the front of the car. You then attempted to punch her again.
She ducked and you hit her shoulder and that blow to her shoulder caused her to fall
to the ground.
At that point, Kerry-Anne McCoombe got out of the car and attempted to
intervene, because she was concerned that you were going to kick Erica White while
she was on the ground. Kerry-Anne McCoombe pushed you to the chest. You then
punched Kerry-Anne McCoombe to the jaw three times. That caused her immediate
pain and she started bleeding from her mouth. She felt that her jaw had been
broken.
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Kerry-Anne McCoombe got back into the vehicle with Priscilla Nipper and they
left because they were in fear of their safety. They came back about 20 minutes
later to pick up Erica White. You then went into the premises in Stutterd Street. At
about 9:30 pm that day, Police attended the house on Stutterd Street and arrested
you.
Meanwhile, Kerry-Anne McCoombe had gone to Katherine District Hospital
where she was treated for her injuries, which included a broken jaw. She had to be
airlifted to Royal Darwin Hospital so she could have surgery to her jaw.
You caused serious harm to Kerry-Anne McCoombe by breaking her jaw.
She suffered two fractures, one was to the right parasymphysis and also the other
one to the left angle of her mandible, which is her lower jaw. She had surgery and
the doctors had to fix her jaw with some plates and screws. They had to put a
number of plates in there. They had to put a four-hole plate with four screws in the
left part of her jaw and two four-hole plates with eight screws to fix the damage to the
right part of her jaw, the right parasymphysis.
So that was all on 15 and 16 October. A few months later in January 2015,
on 15 January, Kerry-Anne McCoombe had to have further surgery in Townsville in
Queensland because some of the screws had become loose. The further surgery
involved the removal of the loose screw and a number of other things, including
removal of one of the plates and some screws and also some curettage of some
tissue.
It is agreed that Erica White also suffered pain to her face and shoulder. As I
say, I have seen photographs of her injuries. It is also agreed that you did not have
permission to assault either of them and apparently when the Police asked you if you
would have an interview with them and tell them what had happened, you declined to
participate.
I have been given Victim Impact Statements, firstly from Erica White, your
previous partner. She made a statement the day after the offending. She said that
her face was sore around her eye from where you punched her and also her
shoulder was sore from where you punched her. She said she felt scared of you.
She said that you used to just keep going on about the past, to start an argument.
She said that she would like you to go to gaol for this. She said she has been living
with violence always and wants to get on with her life.
The other Victim Impact Statement is from Kerry-Anne McCoombe provided in
February this year. She said that she had to stay in hospital in Darwin for about five
days. She said her jaw was not fixed properly when she had the operation. She
says the plate and screws were moving and digging into her flesh and jaw. She
could not get help from pain killers and was in pain for four months.
Then she talked about the fact that she had to have a further operation in
Townsville Hospital where the doctors fixed the jaw problem. She still has sleepless
nights. She says she has lost a lot of weight since that happened. She said she is
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very scared of people around her. She avoids having hugs and kisses with people.
She has lost her smile. She says that her friends say to her: ‘You’re not the same
as you used to be.’ She says that she still has a problem chewing food, especially
bush tucker. She says that she cannot trust men any more.
When asked what should happen to you, she said you should stay in gaol for
at least 4 or 5 years. You need to change yourself and avoid bashing women. She
does not want you to go back to Katherine. So, as you can see, you have had that
effect on those two ladies. One of which had been a partner of yours for some three
or four years.
Your offending was serious for a number of reasons. Firstly, both of your
victims were females and it is very cowardly for a man to attack a female.
Secondly, you attacked Kerry-Anne McCoombe, when she was simply coming
to the assistance of Erica White, who was at that stage on the ground as a result of
your assault on her. She was an innocent ‘good Samaritan’ that had just come to
help somebody else who was in trouble.
Thirdly, at the time when you had committed these offences, you were already
on a suspended sentence for assaulting Erica White. In fact, only the month before,
a Domestic Violence Order had been renewed, which was intended to stop you
approaching Erica White whilst you were intoxicated. And unfortunately, only the
day before this offending, you had just completed a three month course at Venndale
Residential Rehabilitation Centre which was designed to help you with your alcohol
problems.
Another reason, of course, why your conduct was serious, is that KerryAnne’s injuries required her to be sent to hospital for treatment.
Your criminal history is also of some concern. The Court was provided with
notes setting out your criminal history, both in Western Australia and in the Northern
Territory. You do have a lengthy criminal record, which includes a number of
convictions for violence, various assaults, unlawful woundings and so on, and a
conviction for an aggravated sexual assault. In fact, you have quite a wide range of
assaults, including assaults on females going back a long time. You have received
all kinds of sentences for those offences.
More recently, in the Northern Territory, you were convicted of an assault
upon Erica White. That is the same victim. That conviction was entered on
27 November 2013. That related to you having attacked Erica White when she was
asleep. You had woken her up and had punched her hard to her face. You kept
punching her and that resulted in her having, again, severe swelling to her right eye
and the side of her face.
That previous assault on Ms White was so serious that the Court sentenced
you to imprisonment for 6 months. The court gave you the benefit then of a
suspended sentence on conditions, including that you not commit any further
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offences. That offending occurred on 25 September 2013 and, the conviction and
the sentence for that and a number of other offences was entered on 27 November
2013. As I have mentioned, you were also subject to Domestic Violence Orders at
the time when you committed this offending that we are concerned about today.
You are not being punished again for any of those previous offences; you
have already been punished for all of those. But your criminal history is relevant,
because it does show that even though you have been punished previously for a
number of assaults and even though you have been issued Domestic Violence
Orders, and given the benefit of suspended sentences, you have disobeyed those
orders. You have not learnt, apparently, from those punishments, that you must not
get drunk and bash people, in particular, bash women.
Your Barrister has told me a number of things about you. You were born in
Derby on 26 January 1972. You have got a brother and six sisters and two halfbrothers. You are a member of the Jaru Tribe and you are a traditional owner of the
area around the Elvire River, which is south of the Purnululu National Park.
You grew up in the Halls Creek area and you were educated to about year 11
level at Halls Creek High School. After you left school, you went to live in a camp on
Birrindudu Station in the Territory. You lived on the station with your auntie and your
uncle who both worked there. Your auntie was a station cook and your uncle was
the head stockman. Your uncle taught you a lot of things in relation to station work
and for the next 10 years or so, you were able to get jobs in station work at various
cattle stations in Western Australia and the Northern Territory, including Camfield,
Inverway, Bunda and Wave Hill.
You became a skilled rodeo rider and you were riding in Saddle Bronc
competitions in Katherine, Halls Creek and Turkey Creek.
You got married in the late 1990s, you lived for a while in Halls Creek and
Fitzroy Crossing and you worked in CDEP Programs at those places.
In the early 2000s, you moved to Kununurra. You worked as a ranger for
eight years in the Purnululu National Park. You apparently acquired quite a wide
range of skills and carried out a wide range of activities during that time. Those
activities included you building walking trails, acting as a tourist guide, cleaning
toilets, building houses, protecting and looking after sacred sites and rock art,
helping to make roads and fighting fires. Apparently in those days, you would only
drink once a week on a Friday night.
Unfortunately, things turned bad for you in about 2010 and you started
drinking more heavily. It was about then that you met Erica White in Kununurra.
Your drinking resulted in you losing your job at Purnululu National Park. You and
Erica then moved to Katherine. Unfortunately, you both continued drinking there and
neither of you were able to get work.
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In November of 2013, you were convicted of the assault on Ms White and
there was the Domestic Violence Order issued and renewed. The Order that
apparently was issued in September 2014 was that you should not contact Ms
White, either on your Centrelink payday or when you were intoxicated.
Over the last three months before this offending, you attended the Venndale
Rehabilitation Centre, in Katherine that is, from July until 14 October 2014, the day
before you committed these offences, I have been given a report from Venndale. It
says that you successfully completed that three month course. You obeyed all staff
instructions, you complied with all the rules, you participated in morning fitness and
did work which included cleaning. You displayed good personal hygiene and you
also worked at Kalano Farm sometimes.
It said that you participated in outdoor activities which included fishing trips.
The report says that you were taught more about the dangers and problems
associated with alcohol and other drugs and you were taught a number of other
things. Apparently, you told the people at Venndale that you would like to get back
out of Katherine and go back to Pigeonhole with your family. The Venndale
Rehabilitation Centre apparently is prepared to take you back for further
rehabilitation.
So they are all good things in your favour. Your Barrister also provided me with
a letter from your sister, Thelma Banks. She says that she is your eldest sister and
she helped to bring you up. She says that the two of you are traditional owners of
that area, south of Purnululu National Park, down near the old Flora Valley. She
talks about the fact that you used to have a good work history, both as a station hand
and later as a ranger. She talked about a number of good things that you did,
including assisting people in 2008 when there was a helicopter crash, in which a pilot
and three young girls were burnt to death. She said that you demonstrated
leadership and other very good qualities when that happened.
She said that once you get out of prison, she would like you to go back there and
help teach her youngest son, who is your nephew, a number of skills, particularly
cattleman skills, so that maybe the two of you can work together on a station.
Your Barrister also spoke to another person, Mr Lindsay Brown. Mr Brown used
to be your supervisor, when you were working in Purnululu National Park. Mr Brown
is now working at a National Park in South Australia. He knew you for about eight
years, during which you were working there as a ranger’s assistant, that is, as a
ranger’s assistant at Purnululu National Park. He said that he very much enjoyed
living and working with you. He said you are a reliable and hard working person, and
would do every job that you were asked to do. He said that you did a lot of jobs
there, including assisting with visitors, cultural consultation with your own and other
local Aboriginal communities, assisting with identifying and maintaining sacred sites,
assisting with control burning and also with manual work, such as building airstrips
and roads and walking trails.
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He says that he also knew you to be a traditional owner of that country around
there and that you had also been through the law. He said that you were a good
leader. He also said that when you were earning money, you were generous with
your income and that even though you had to go to prison for 16 or 18 months at one
stage, in about 2009, after you got released, you were able to go back to your job
there, because Mr Brown had been able to persuade the Department of
Conservation people to keep your job open.
He says, unfortunately, after you met Erica White, you began drinking too much
and that seems to have resulted in you having this excessive drinking problem. It
has got you into the trouble that you find yourself in now.
All those references are good, because they demonstrate that you do have a lot
of very useful skills and that when you get out of prison, if you can keep off the grog,
you will be able to go back and be a very useful member of the community. You
should be able to get work, you should be able to help your nephew and you should
be able to do what you have been taught as a traditional law man and to help other
people, including your nephew, and other younger Aboriginal people to learn the law
and also to learn that they can be very productive members of your community.
They are all good things for your long term rehabilitation. The difficulty is what is
happening to you at the moment, which appears to be largely as a result of the
difficulties with alcohol.
Your Barrister also pointed out to me that after you had assaulted Erica White
and Ms McCoombe, you were approached by a number of men and a person called
Dallas McCoombe. He punched you to the right eye as some sort of punishment for
you having assaulted Ms McCoombe. You had problems with your eye for the next
eight days or so, so I take that into account. I think you acknowledge that that was
nowhere near as severe as the punching and the assault that you had inflicted on Ms
McCoombe and Ms White, but I take that into account.
I also realise that Ms White had provoked you to some extent, by no doubt,
many of things that she was saying to you and also by attempting to throw the bottle
at you and attempting to strike you before you hit her.
You have pleaded guilty and you indicated that you would be doing that some
time ago, so you will be given credit for that. Because you have pleaded guilty, that
has meant that Ms White and Ms McCoombe have not had to come to Court. They
have not had to give evidence and remember the horrible things that you did to
them. I will be giving you a discount of about 20 percent off the sentence that I
would normally give you on account of your plea of guilty.
I understand from your Barrister that you do realise that you do still have serious
problems with alcohol. Even though you completed that course at Venndale, which
included a course on family violence, you still need help with those things.
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As you know, these are very serious offences. One carries imprisonment of up
to 14 years, the other up to 15 years. You are the only person to blame for these
offences. As I say, even though you were provoked by Ms White, you should not
have been with her in the first place. Maybe it was her fault that the two of you were
together, but in any event, you should have been all the more careful to avoid hitting
her, even if she had provoked you.
What you did to both of them has caused them both ongoing emotional harm
and it did cause Ms McCoombe ongoing physical harm for some time. You are very
lucky and they are very lucky that they did not suffer more serious harm, because, as
you should know, even one punch can result in some people hitting their head and
being killed. So you must learn not to punch people, in particular, women.
You need to be punished for what you have done and you need to realise that
you must not do these things again. The sentence must also be strong enough so
that other people will realise that if they do what you did, that is, punch women and in
particular punch their partner, then they too will go to gaol. The community,
including your own Aboriginal community does not approve of this kind of behaviour.
It is also important that the Courts try to protect members of the public from
people who do the kinds of things that you did to these ladies. It would not be fair to
let you out of prison too early, while there is a danger of you doing this kind of thing
again. In particular, this Court must try to protect Aboriginal women in our
community, in particular, Aboriginal women who are in domestic relationships with
people. They should not have to put up with violent attacks like this.
I consider that, in the long run, you have good prospects of rehabilitation. I say
in the long run, because I base that upon the character references that I have
already talked about, the good things that have been said about you by not only your
sister, but also the man who was your supervisor at the Purnululu National Park for
that length of time. They demonstrate that if you can overcome your alcohol problem
and perhaps family violence problems, that you can become a useful member of the
community.
Unfortunately in the short term, I think that your rehabilitation prospects are poor.
I say in the short term, because you need to overcome, in particular, those problems
with alcohol. I think it will be up to the Parole Board to assess how well you are
doing in overcoming your alcohol problems and the point of which you should be
released back into the community will be up to them to assess when that should
occur. In the meantime, while you are in prison, you will be able to participate in a
number of courses regarding alcohol and family violence, and also courses which
may help you improve some of your skills. Hopefully when you do get out of prison,
you will be able to get work and lead a more productive life.
I now turn to sentence you.
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Mr Banks, in relation to the two Counts charged on the indictment and also the
circumstances of aggravation, I find the facts proven. I find you guilty and I convict
you of those two offences. I take into account the fact that you have pleaded guilty.
For Count 1, that is, the assault on Kerry-Anne McCoombe, I sentence you to 2
and a half years’ imprisonment.
For Count 2, that is, the assault on Erica White, I sentence you to 2 years’
imprisonment.
I will also restore the 2 months’ imprisonment that you still have to serve. That
relates to the sentence that you were given on 27 November 2013, that will be
restored in full, because you have breached that suspended sentence by committing
these offences.
All of that would add up to 4 years and 8 months’ imprisonment. However,
because these two offences occurred at about the same time and are all part of an
unfortunate course of conduct that followed you drinking too much the day after you
got out of Venndale, I propose to reduce your total sentence to 3 years’
imprisonment. I will be achieving that by ordering that most of your sentences will be
served at the same time.
That that will be backdated to 15 October 2014.
I will also be fixing a non-parole period of 18 months’ imprisonment. That will
also be backdated to 15 October 2014.
So the orders that I make are these:
1. You are convicted of the two offences on the indictment dated 19 February
2015.
2. For Count 1, you are sentenced to 2 and a half years’ imprisonment. For
Count 2, you are sentence to 2 years’ imprisonment, and 6 months of that will
be served after you finished your sentence for Count 1. The other 18 months
will be served at the same time, concurrently with the sentence for Count 1.
3. I restore the 2 months’ imprisonment still outstanding on the sentence that
you were given on 27 November 2013. I order that that will be served
concurrently with – that is, at the same time your sentence on Count 1. That,
gives an aggregate sentence of 3 years’ imprisonment which will be
backdated to 15 October 2014. I fix a non-parole period of 18 months,
backdated to 15 October 2014.
Is there anything further from counsel?
Mr Banks, as I have said, I think deep down you are a very good person and
you have got a lot to contribute back to the community and back to your Aboriginal
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people. Sadly, the grog has got you into a lot of trouble. You need to be punished
for that, and you need to get over that problem. I hope that you can demonstrate to
the Parole Board that they should release you early and that you will get back to
being a very useful member of the community and I wish you good luck.
Court will adjourn.
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