Bamaga v Trenerry [1992] NTSC 106; 111 FLR 355 (18 December 1992)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MARTIN J CWDS Sentencing - criminal law and procedure HRNG DARWIN #DATE 18:12:1992 Appearances not available ORDER Appeal allowed. JUDGE1 MARTIN J This is an appeal against a sentence imposed by the Court of Summary Jurisdiction at Darwin on 23 September 1992 in respect of offences committed by the appellant on the 20th of that month. He was first convicted for that he unlawfully entered the Parap Hotel at 2.50am on Monday 20 September 1992 intending to commit a crime. For that the maximum penalty which might be imposed is 7 years imprisonment. The jurisdiction of the Court of Summary Jurisdiction, however, is limited to imposing a maximum penalty of 2 years of that period of 7 years, and he was sentenced to a period of imprisonment for 12 months. The next offence concerned the carrying out of the crime, the intent to commit which he held at the time he unlawfully entered the hotel, namely stealing two cartons of cans of beer. Although not in evidence the value of those goods in Darwin was of the order of $50. For that the maximum penalty is 7 years imprisonment, but again the jurisdictional limit in the Court of Summary Jurisdiction is 2 years imprisonment and he was sentenced to 3 months. He had gone to the hotel from the Baggot Road Aboriginal community taking an iron bar with him and gained access by smashing the lower glass panel of one of the front doors of the parlour bar. It is not disclosed what else, if anything, was in the refrigerator from which he took the beer. 2. As the appellant was driving away from the hotel, police in a police motor vehicle approached and the appellant drove away passing along suburban streets exceeding 90 kilometres an hour in parts, crossing to the incorrect side of the road in some places, turning the lights of the vehicle off and on, breaking heavily at corners and accelerating rapidly thereafter, seeking to elude the pursuing police vehicle in the process. For that he was convicted of the offence of dangerous driving for which the maximum penalty is a $2000 fine or imprisonment for 2 years, and sentenced to 6 months imprisonment. He did not hold a current drivers licence at the time and for that he was sentenced to one month imprisonment out of a maximum of imprisonment for 12 months. 3. The two sentences of imprisonment imposed in respect of the unlawful entry and stealing from the hotel were ordered to be served concurrently as were the two sentences of imprisonment arising from his driving of the motor vehicle thereafter, but the two concurrent periods were ordered to be served cumulatively, thus the total sentence was 18 months imprisonment. He was disqualified from holding a licence to drive a motor vehicle, pursuant to the provisions of s390(9) of the Criminal Code for a period of 18 months. 4. The police prosecutor informed the Court that the pursuing police went to the Baggot Reserve area shortly after losing track of the appellant, identified the motor vehicle which he was driving, and later arrested him. When interviewed, he made full admissions to the police as to the unlawful entry and stealing, saying that he did that because he had run out of beer to drink. As to the dangerous driving, the appellant told police that he did not stop when he saw them pursuing him with the blue lights flashing as he did not want to get caught and that he considered his driving dangerous both to himself and to other persons. 5. He was brought before the Court on 21 September and there entered his pleas of guilty to each of the offences. Counsel for the appellant informed the Court that he was a 30 year old Aboriginal man with a history of employment from 1987 until the end of 1991, after which he commenced living at the Baggot community and was in receipt of unemployment benefits. He was due to commence work in a new job about a month later. At the time he committed the offences he was already intoxicated. 6. He had been previously convicted of dishonesty and motor vehicle offences. In 1979 he was convicted and fined $150 on each of two charges relating to unlawful entry of a dwelling house. In 1983 he was convicted and fined for driving a motor vehicle whilst having a blood alcohol content in excess of .08 and being unlicensed; later in the same year he was again convicted of similar offences plus a further offence of breaking and entering with intent to commit an offence, for which he was likewise fined. Later still, in 1983, he was convicted of driving a motor vehicle whilst under the influence of liquor, for which he was fined, and a little later still in the same year, for the same offence for which he was sentenced to 4 weeks imprisonment and the further offence of being an unlicensed driver for which he was sentenced to 3 months imprisonment. There were two minor and otherwise irrelevant convictions during 1984, but in 1985 he was again convicted of driving under the influence of liquor and for being unlicensed, for which monetary penalties were imposed. Late in 1985 he was convicted for robbery in company and sentenced to 3 years imprisonment from which he escaped, and was dealt with and sentenced to a further 3 months imprisonment in March 1986. In June 1990 he was dealt with and fined for giving a false name and possessing cannabis, and last of all in December 1991 he was convicted and fined for consuming liquor in a restricted area, receiving, a further count of consuming liquor in a restricted area and conveying liquor to a restricted area. 7. Notwithstanding his formidable record, his counsel stressed before the Court of Summary Jurisdiction that at the time he was before that Court he had had 6 years of "relatively good behaviour". In making that submission counsel was no doubt endeavouring to have his Worship exclude from consideration the conviction for robbery in October 1985 as well as the previous convictions relating to motor vehicles and dishonesty. She submitted that the offences since that time were in a minor category and that during the intervening period he had obtained and followed employment. It was urged upon his Worship that from about 1986 the appellant had changed the direction in his life, demonstrated by his relative lack of convictions in the intervening period, his work history and the fact that he had married in about 1987. In adjourning the proceedings so that he could consider the appropriate sentence to impose, his Worship informed the appellant that he was considering imposing a term of imprisonment for several reasons, including the dangerous driving and the question of general deterrence. Upon the matter coming back on for final determination on 23 September, further submissions were made to reinforce what had been said before relating to the appellant's history over the last 6 years, his Worship indicating that although that may mean he gets "a little bit less", with his record he was not entitled to much leniency. He rejected the submission that if a term of imprisonment was imposed it should be suspended either wholly or in part. 8. In sentencing the appellant his Worship took into account his plea of guilty as indicating a realisation that he had done the wrong thing and showing that his prospects for rehabilitation were good. It was also noted that a term of imprisonment would rob his spouse of his company, but his Worship indicated that they were the only factors that he could take into account when considering leniency, although he then added that he had good prospects of rehabilitation because of his work history. His Worship briefly reviewed the circumstances of the offences stressing the danger posed by the manner of driving, particularly when trying to elude police. His Worship also took into account as aggravating circumstances the fact that the appellant admitted to police that he was drunk at the time he was driving (a matter for which he was not charged, but nevertheless a fact that was admitted) and that he was driving unlicensed for which he had previous convictions and had received a term of imprisonment. "I consider that the dangerous driving situation has features of being the worst type of dangerous driving ..... I am not saying it is the worst type, what I am saying is that when a person drives to avoid apprehension by police you're getting close to the most serious sort of dangerous driving, it's toward the top end of the scale." Even if he was a first offender, his Worship was of the view that, taking into account general deterrence, the appellant would be "looking at a gaol term". As to the unlawful entry and stealing, his Worship noted the prior record of convictions for dishonesty offences, and despite the warnings that he had had in the past, he had little concern or little regard for the rights or property of others. His Worship stressed that in relation to the conviction of robbery he took into account only the dishonesty aspect of that matter. He specifically mentioned the receiving offence in December 1991. It will be noted that that conviction was ordered at the same time as a number of others in relation to liquor on a restricted area. His Worship was not informed that the receiving related to liquor which was being drunk on the reserve and had been stolen and brought there by some other person. The accused's involvement was to drink the stolen liquor, and it was that involvement which brought about the other related convictions. Taken in its context it does not seem likely that his Worship would have imposed lesser penalties in relation to the unlawful entry and stealing had he known the circumstances surrounding the receiving conviction. 9. Having imposed the sentences of imprisonment detailed above, his Worship went on to say that he considered that it was a matter for the Parole Board to determine a suitable time for the appellant's release on parole, if he was to be so released. Having imposed a sentence to a term of imprisonment of more than 12 months, his Worship was obviously declining to specify a lesser term of imprisonment during which he was not eligible to be released on parole pursuant to the "I am of the view that the offence and the driving is so serious that he should not have parole, that he should serve the full term, but the Parole Board can reconsider that". 10. As amended at the commencement of the appeal, the grounds of appeal put forward were: