Traffic Act Justices Act Sentencing Act Prisons (Correctional Services) Act

Duff v R (1979-80) 28 ALR 663 followed; Boyle (1987) 34 A Crim R 202 applied; Maslen and Shaw (1995) 79 A Crim R 199 applied; Mawson v Nayda [1995] NTSC 113; (1995) 5 NTLR 56 applied; R v Nagas (1995) 5 NTLR 45 applied; Minor v The Queen (1991-92) 79 NTR 1 approved; Oldfield v Chute [1992] NTSC 35; (1992) 107 FLR 413 applied; Nabanardi v Minner (1992) 62 A Crim R 325 applied;

Fox and Frieberg , Sentencing and Federal Law in Victoria ; Thomas D.A., Principles of Sentencing 2nd Edition , 1979

DARWIN, 21 November 1997 (hearing), 4 December 1997 (decision) #DATE 4:12:1997

Counsel: Appellant: Mr R Goldflam Respondent: Mr I Rowbottom

Solicitors: Appellant: Northern Territory Legal Aid Commission Respondent: DPP (NT)

These appeals are brought pursuant to s163 of the Justices Act.

In matter No.9700873 the appellant pleaded guilty to three breaches of the Traffic Act which occurred on 14 January 1997, as follows: (1) driving whilst disqualified from holding a driver's licence; (2) driving an unregistered motor vehicle on a public street; (3) driving a motor vehicle that did not have a current compensation contribution on a public street.

In matter No.9701053 the appellant pleaded guilty to four breaches of the Traffic Act and Regulations which occurred on 16 January 1997, as follows: (4) driving whilst disqualified from holding a driver's licence; (5) driving an unregistered motor vehicle on a public street; (6) driving a motor vehicle that did not have a current compensation contribution on a public street; (7) speeding. Both matters came before Mr Wallace SM, and on 12 June 1997 his Worship imposed the following penalties: (1) imprisonment for 2 months and disqualified for 6 months; (2) fined $200; (3) fined $500; (4) imprisonment for 5 months, cumulative on (1) above and disqualified for 12 months; (5) fined $200; (6) fined $1000; (7) fined $50. His Worship fully suspended the sentences of imprisonment upon the appellant entering into a home detention order for a period of 9 months, subject to conditions.

The only ground of appeal set out in the Notice of Appeal relating to file 9700873 is that the sentence of imprisonment imposed, and the period of licence disqualification, is manifestly excessive. This appeal was not pressed at the hearing and was tacitly abandoned.

The grounds of appeal set out in the Amended Notice of Appeal relating to file 9701053 are as follows: "1. That the Learned Stipendiary Magistrate failed to take into account the relevant consideration that the appellant was not dealt with by a court between the commission of the two groups of offences. 2. That the Learned Stipendiary Magistrate failed to take into account the relevant consideration that the two groups of offences were similar in time and circumstance. 3. That the Learned Stipendiary Magistrate failed to give adequate weight to the evidence of the offender's good character. 4. That the Learned Stipendiary Magistrate imposed a sentence which was not proportional to the objective circumstances of the offences. 5. That the Learned Stipendiary Magistrate erred in finding that family hardship is not a relevant consideration in imposing a sentence of imprisonment. 6. That the Learned Stipendiary Magistrate erred in finding that a period of home detention imposed by a court should not be mitigated by taking into account the abolition of remissions. 7. That the sentence imposed by the Learned Stipendiary Magistrate is manifestly excessive in all the circumstances of the case and of the offender." The facts are that on 24 September 1996, the appellant pleaded guilty to exceed .08%, and being a learner driver, drove without a licensed driver sitting in the front seat with her. She was fined and disqualified from holding or obtaining a driver's licence for 6 months. The appellant was a 23 year old single mother with two daughters aged 5 and 3 years respectively. She lived at Howard Springs. She made arrangements with a neighbour and a friend to take her children to school or to her sister's home to be cared for whilst she attended University to study for a diploma course she was undertaking. She lived with the mother of her childrens' father who would take her shopping and the like. It was put, and apparently accepted, that up to 14 January, she had obeyed the Court's order and had made appropriate arrangements to ensure she did not offend.

On the morning of 14 January, she was rung by a close friend who was experiencing domestic violence from her de facto husband, who had just been arrested by the police. Her friend feared for her safety, and asked for a loan so that she could move out of her house. The appellant had no money. She drove to her friend's house (which was in the northern suburbs) to help her move her possessions. She was en route with her friend's possessions when stopped by police. She had gone to her brother-in-law's house to ask him to driver her, but he was not at home, and decided to drive herself. The police did not arrest her, but seized her registration plates and told her that she would be summonsed, she left the vehicle where it was.

In the meantime, she lived with her friend somewhere in Palmerston. On 16 January, she went to the shops (driving a different vehicle) to get some food, and was stopped for speeding, which led to the discovery of the other offences on that day. She has since disposed of her own vehicle. Three character references were tendered on her behalf, which testified to her good character, and provided further support for her claim that the offences were out of character.

As to ground 1 of the appeal, I do not consider there is any substance to this submission. The learned Magistrate was entitled to treat the driving offences of 16 January as far more serious than on 14 January. As his Worship observed, although there was something of an explanation for the driving on 14 January, there was no excuse for the driving on 16 January. Whilst it is true that the appellant had not been convicted and dealt with by a Court at the time of the driving on 16 January, she had been caught by the police only two days before, told she would be summonsed, and had had her registration plates removed. Although she was still a first offender, a court is entitled to treat a second offences in these circumstances more seriously.

As to ground 2, the two offences occurred at different places and times and under different circumstances, and in those circumstances it was not inappropriate to order that any sentences be served cumulatively: see Duff v R (1979-80) 28 ALR 663 at 699; and see generally, Fox and Frieberg, Sentencing and Federal Law in Victoria , par 9.4.

As to ground 5, there is nothing in his Worship's sentencing remarks to indicate that he rejected any hardship which might be caused to the appellant's family by the sentences he imposed, as being irrelevant. In fact, one of the matters his Worship specifically referred to in his sentencing remarks is that home detention has the advantage that the appellant will be able to keep her family together and to continue to care for her children. It is true that his Worship also observed that if offences are committed which deserve imprisonment, the fact that she is a single parent with young children does not mean that she would not go to prison. It is well established that if an actual gaol term for a single parent would leave young children to fend for themselves, this is a factor which would be regarded as sufficiently exceptional to depart from the general rule that a sentencing court should have no regard to the impact which a sentence of imprisonment will have on the prisoner's family: see Boyle (1987) 34 A Crim R 202 esp. at 205-6. In such circumstances, although it is not an absolute rule, an otherwise warranted sentence may be suspended reduced: see D. A. Thomas, Principles of Sentencing (2nd Ed., 1979) p212; Boyle, supra, at 205-206; Maslen and Shaw (1995) 79 A Crim R 199 at 208-9; Mawson v Nayda [1995] NTSC 113; (1995) 5 NTLR 56; R v Nagas (1995) 5 NTLR 45 at 53-54.

The appellant also contended that the period of home detention was manifestly excessive because it exceeded the period of the suspended sentence, and that the learned Magistrate erred in not taking into account the abolition of remissions in fixing the period of home detention.

As to the first of these grounds, there is no absolute rule that a period of home detention must always equate to the period of the sentence held in suspense. The Sentencing Act does not say so, and leaves the period in the discretion of the Court. Counsel for the appellant, Mr Goldflam, submitted that when home detention is ordered, it is a form of imprisonment which is a substitute for actual imprisonment, and should be substantially equivalent to the term for which it substitutes.

As a general rule, I consider that there is no requirement that there be an appropriate relationship between the head sentence and the period of home detention. If the sentence is wholly suspended (and it need not be) and the period of home detention is less than the head sentence, once the period of home detention has been served there is a risk that the offender may be under no further constraints if the offender commits further breaches of the law, depending upon the terms under which the Court has suspended the sentence. In Minor v The Queen (1991-92) 79 NTR 1 at 6-7, the Court of Criminal Appeal held that although exceptional circumstances may exist where a period of suspension may be less than the head sentence, it is generally undesirable for the Court to lose control of the situation in this way. The order suspending the term upon the offender entering into a home detention order should still comply with s40(6) of the Sentencing Act (which requires the Court to specify a period during which the offender is not to commit another offence punishable by imprisonment if the offender is to avoid being dealt with under s43). This apparently is not usually done, but if it were done, as I think it is required, the problem identified in Minor can be avoided. Likewise, I do not consider that it is necessarily excessive for a period of home detention to exceed the suspended term of imprisonment. It is clear that a period of home detention is not the equivalent of imprisonment for the same period. Sections 48(6) and (7) of the Sentencing Act make that clear. If Mr Goldflam's submission were correct, one would expect to find in the Act a provision to the effect that time spent on home detention would count if the home detention order is revoked, but ss48(6) and (7) say exactly the opposite. Indeed, although home detention does affect the liberty of the subject and may be said to be a form of imprisonment, the conditions are considerably less rigorous than an actual term of imprisonment in a gaol. That is not to deny that home detention is not a significant punishment; but nevertheless the fact is that the home detainee is still able to work and still able to enjoy the comforts of his home and the company of his family. These are not insignificant differences. Nevertheless, because of the rigorous consequences of a revocation order, and the fact that except in the circumstances envisaged by s48(9) a Court is bound to revoke a home detention order upon proof of a breach of the order, the Court imposing the order must be careful to ensure that the consequences of revocation are not too draconian, and this is best gauged by considering the length of the order, the length of the head sentence and the fact that the whole period of home detention can be served yet the offender may still be required to serve the whole of the sentence held in suspense. Where the period of home detention exceeds the head sentence, the larger the gap between the head sentence and the period of home detention, the more likely it is that the punishment will be excessive. Bearing these considerations in mind, I do not think a gap of two months over and above a seven month head sentence, whilst longer than I might have imposed myself, is such as to persuade me that the overall period of home detention imposed was manifestly excessive.

The point concerning the abolition of remissions is whether the learned magistrate was correct in concluding that s58 of the Sentencing Act does not apply to a period of home detention. This section provides:

"58.COURT TO TAKE ABOLITION OF REMISSIONS INTO ACCOUNT (1) When sentencing an offender to a term of imprisonment of less than 12 months a court shall consider whether the sentence it proposes would result in the offender spending more time in custody, only because of the abolition of remission entitlements by section 6 of the Prisons (Correctional Services) Amendment Act (No. 2) 1994 , than he or she would have spent had he or she been sentenced before the commencement of that section for a similar offence in similar circumstances. (2) If the court considers that the sentence it proposes would have the result referred to in subsection (1) it shall reduce the proposed sentence in accordance with subsection (3). (3) In applying this section a court - (a) shall assume that an offender sentenced before the commencement of section 6 of the Prisons (Correctional Services) Amendment Act (No. 2) 1994 would have been entitled to the maximum remission entitlements; and (b) shall not reduce a sentence by more than is necessary to ensure that the actual time spent in custody by an offender sentenced after that commencement is not greater, only because of the abolition of remissions, than it would have been if the offender had been sentenced before that commencement for a similar offence in similar circumstances. (4) For the purposes of this section - "remission entitlements" means a remission under section 92 of the Prisons (Correctional Services) Amendment Act , as in force before the commencement of section 6 of the Prisons (Correctional Services) Amendment Act (No. 2) 1994 , that may have been granted to a prisoner under the determination made under that section that was in force immediately before that commencement; "term of imprisonment" includes - (a) a term that is suspended wholly or partly; and (b) any non-parole period fixed in respect of the term. (5) This section shall expire 5 years after its commencement. (6) It is intended that the expiry of this section will not of itself have any effect on sentencing practices and that after the expiry a court will have regard to sentencing practices current immediately before then as if this section had not expired." The learned magistrate said that he took into account the abolition of remissions when fixing the total head sentence of seven months. If this is so, his Worship must have had in mind a total head sentence of 10[Omega] months imprisonment. However, he held that the period of home detention did not similarly have to be adjusted.

Mr Goldflam submitted that the words "in custody" in s58(1) are wide enough to encompass the loss of liberty involved in home detention. However, that ignores the rest of ss(1), which requires the court to consider whether the sentence proposed would result in the offender spending more time in custody "only because of the abolition of remission entitlements" etc. Therefore, even if "custody" could extend to home detention, this would avail the appellant only if the system of remissions, before it was abolished, applied to home detention. The determination of the Minister providing for remissions, pursuant to s92(1) of the (Prisons (Correctional Services) Act and dated 3 June 1981, did not so provide; it was clearly confined to "the period of imprisonment being served". Section 92 itself contemplated that remissions would be granted to "prisoners" by the Minister on the recommendation "of the officer for the time being in charge of the prison". This confined the system of remissions to those prisoners who were committed or remanded to a prison declared under s10: see also the definition of "prison" and "prisoner" in s5. This seems to have been accepted by the draftsman of the Sentencing Act , who in s53(3) required the court not to reduce a sentence by more than is necessary "to ensure that the actual time in custody by an offender sentenced after that commencement is not greater" than it would otherwise have been but for the abolishment of remissions. It follows that the appeal cannot be allowed on this ground.

As to the remaining grounds, no material as to tariff having been presented to this Court, it is incumbent upon the appellant to show, not just that the sentences be excessive, but that they be manifestly so. Although the sentences were suspended, s40(3) of the Sentencing Act provides that a court shall not impose a suspended sentence unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the purposes of the Act. There is no absolute rule that a first offender who drives whilst disqualified must be sentenced to imprisonment: see Oldfield v Chute [1992] NTSC 35; (1992) 107 FLR 413; nevertheless that is the usual disposition, as the authorities referred to in that case show. In the present case, it could not be said that a term of actual imprisonment was not warranted, particularly as the sentences were suspended, albeit on condition that a home detention order be entered into. In this case, as Mr Rowbottom, counsel for the respondent submitted, the appellant had never held a licence other than a learner's permit, and this aggravated the driving whilst disqualified.

Nevertheless, I am of the view that a total head sentence of 10[Omega] months, reduced to 7 months, albeit suspended, is manifestly excessive in the circumstances of this case.

The head sentences to be imposed cannot be made longer than is otherwise just simply because the sentencer decides to suspend them.

The maximum penalty for this offence is imprisonment for 12 months. Looking at the total offending in the circumstances, the total head sentences appear to me to be plainly too much. In Nabanardi v Minner (1992) 62 A Crim R 325, I reviewed the range of sentences usually imposed by Magistrates in the Katherine Court of Summary Jurisdiction which confirms my impression that a total head sentence of 10 1/2 months is outside the range. In this case there were strong mitigating factors in respect of the first offence, and in respect of both offences, there was evidence that the appellant had, apart from those two occasions, obeyed the Court's order suspending her licence, she pleaded guilty, she was a person of good character and she was entitled as a single parent to some leniency in the fixing of the head sentence beyond the order of suspension. In these circumstances it is not necessary for me to decide whether the total period of home detention is in itself excessive, as it will be necessary for me to re-sentence the appellant, and this will inevitably cause some adjustment to the period of home detention.

I consider a total head sentence of no more than 6 months is warranted. Allowing for the abolition of remissions, this should be reduced to 4 months. Accordingly I propose to adjust the head sentence in respect of matter number 9701053 to imprisonment for 4 months, to be served concurrently with the term of imprisonment in matter number 9700873 in order to reflect the totality principle. These sentences will remain suspended upon the appellant having entering into the home detention order, but the period of home detention will be reduced to 5 months.

The appeal is allowed accordingly. There will be orders as follows:

1. The sentence of 5 months imprisonment imposed in matter number 9701053 is set aside. In lieu thereof, the appellant is sentenced to 4 months imprisonment, concurrent with the sentence of imprisonment imposed in matter number 9700873;

2. The order of the learned Magistrate suspending the sentences of imprisonment upon the appellant entering into a home detention order is varied by reducing the period of home detention from 9 months to 5 months.

3. I fix a period of 12 months during which the appellant is not to commit another offence punishable by imprisonment if she is to avoid being dealt with under the provisions of s43 of the Sentencing Act .

4. The sentences of the learned Magistrate are otherwise not disturbed.