Arnold v Trenerry [1997] NTSC 138; 118 NTR 1; 142 FLR 229

Arnold v Trenerry [1997] NTSC 138; 118 NTR 1; 142 FLR 229 - NTSC 1997 case summary — Zoe

[14]

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.

[22]

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.

[24]

"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.

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Arnold v Trenerry [1997] NTSC 138; 118 NTR 1; 142 FLR 229 (4 December 1997)

Parties

Cases Cited (4)