Franklin Mason v Leonard David Pryce [1988] NTSC 28; 53 NTR 1; 7 MVR 129; 34 A Crim R 1 (19 April 1988)

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COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Appeal - sentencing - nature of appeal against sentences imposed by Court of Summary Jurisdiction when fresh evidence not admitted - whether error in exercise of discretion must first be established - Justices Act Pt VI. Sentencing - appeal - mode of establishing whether sentences manifestly excessive - need for information on current "tariff" - young first offender - reformation as dominant consideration - whether practicable alternatives to imprisonment available. Cases considered: Jambajimba v Seears (1984) 2 NTJ 439 Lahey v Sanderson [1959] TASStRp 10; (1959) Tas SR 17 Murphy v Smith R v Ah Toy (unreported, 8 October 1987) R v Algy (unreported, 12 December 1984) Yovanovic v Pryce Cases distinguished: Messel v Davern Cases followed: Matan v Ruehland Petreski v Cargill (unreported, Full Court of the Federal Court, 9 December 1987) Conwell v Kelly Cases not followed: Campbell v Fortey Moffatt v Seears Cases referred to: Clair v Brough Cranssen v The King ; Donovan v McKillop Gorman v Virgo Griffiths v The Queen (1977) 137 CLR 293 Higher v Hopood House v The King ; Hughes v Bradfield Park v Crafter ; Seears v McNulty (unreported, 29 July 1987) Wade v Turner ; HRNG DARWIN #DATE 19:4:1988 Counsel for the Appellant: D.A. Norman Solicitor for the Appellant: NAALAS Counsel for the Respondent: C.F. Jenkins Solicitor for the Respondent: Solicitor for the Northern Territory JUDGE1 This is an appeal against the severity of certain sentences imposed by the Court of Summary Jurisdiction at Darwin on 8 October 1987. 2. The appellant pleaded guilty that day to the following 4 charges:-

conditioned that you be of good behaviour for 2 years. Further condition, that you'll place yourself under the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions about employment, residences, associates and reporting. I recommend repatriation to Maningrida. There are many people who say that short sentences of imprisonment don't work. The more I'm in this job, I wonder whether many of the things we do, work. I think this is a good a way as any of sorting you out for the while. On the second charge, the .22 charge, you're convicted and sentenced to two months imprisonment with hard labour. That will be concurrent with the 6 months, and you're disqualified from driving for a period of 2 years. That has effect from today, and I warn you, that should you drive in that time, you can expect to go to gaol. On the third charge, driving unlicensed, you will be convicted and fined $75 with costs of $10 in default, 2 days imprisonment. I guess we might as well say no time to pay. As far as your bail is concerned, I forfeit the $200 of your bail but I spare the rest; a warrant of commitment will issue for that, for $200, or 4 days imprisonment. I don't see any reason why you should just pay that off as well. That warrant will stay for 3 months. That will allow you to work it off when you get back to Maningrida. For the second illegal use, you're convicted and sentenced to 6 months imprisonment with hard labour, cumulative upon the term of N8720541:03 and I direct your release on entering into that bond. That means twelve month's gaol, you'll do 2 of them before you can come out on a good behaviour bond. If you break the bond by not behaving yourself for the next two years, you can expect to do the other 10 months gaol. It also means that you don't drive anything for 2 years. It means also, that if you do ever drive a car, for the first year that you have your licence, you don't drive with any alcohol in you. ..." (emphasis mine) 8. On 26 October the appellant filed an appeal against the severity of the sentences of 6, 2 and 6 months imprisonment imposed in respect of charges nos. 1, 2 and 4. There was no appeal against the $75 fine for driving whilst unlicensed or against the order that he be disqualified for 2 years from holding a licence to drive. On 28 October 1987 the appellant was released on recognizance to prosecute his appeal. He is presently in Maningrida. 9. The grounds of appeal are that the sentences were manifestly excessive, and the Magistrate failed to take into account the appellant's youth and previous good character. 10. Mr Norman conceded that the offences of illegally using motor vehicles and driving with high levels of alcohol in the blood were prevalent, but submitted that it was fundamental that only in circumstances of gravity should a first offender be imprisoned. In his submission the first offence charged was not a case of that character, and accordingly his Worship had erred by not observing that sentencing principle. Mr Norman submitted that the appellant should be placed under a supervised bond to remain at Maningrida, where he did not get into trouble. Mr Norman conceded that it was arguable that the proper exercise of the Magistrate's sentencing discretion extended to the imposition of a sentence of imprisonment for the fourth offence charged, because it was committed shortly (less than 4 weeks) after the first and, in effect, while the appellant was on bail upon the first charge. On the other hand, the appellant's role in the offence which led to the fourth charge was at the lower end of culpability, and pointed to the imposition of a fine, or a conditional release under s.5(1)(a) of the Criminal Law (Conditional Release of Offenders) Act, as the appropriate punishment. 11. Ms Jenkins submitted that simply because a Magistrate, when sentencing, did not refer to an appellant's youth and previous good character, it should not be considered that he had not taken those matters into account. That is clearly correct; in any event, as can be seen from the words emphasized on p 4, his Worship clearly bore in mind the appellant's youth and clear record. Accordingly, I consider that the second and third grounds of appeal are without substance. It is also clear that his Worship correctly considered that the need for personal and general deterrence was relevant to sentencing. 12. When the effective ground of appeal is that the sentences imposed for common offences were manifestly excessive, it is very desirable that meaningful statistics be provided so that the range of sentences which currently constitute the norm for punishment of these offences in Courts of Summary Jurisdiction may be ascertained. The question of the sentencing "tariff" is discussed generally in Clair v Brough (1985) 37 NTR 11 at 14-16. Regrettably, however, despite the computerization of Court records, the system currently in use cannot produce the meaningful sentencing information routinely produced elsewhere, essential to the task of both Magistrates and appellate Courts in ensuring that like cases receive like punishment, irrespective of the different Magistrates or appellate Courts before whom each offender chances to appear. 13. Ms Jenkins informed me that currently a bond is imposed in many cases where a person is convicted of the unlawful use of a motor vehicle; and that a sentence of imprisonment is usually not imposed upon a first offender, for such an offence. Ms Jenkins also informed me that currently a first offence of driving with a blood alcohol level in excess of 0.08 usually results in the imposition of a fine; she conceded that the sentence of 2 months imprisonment imposed for the second charge in this case was excessive. Information of this type from counsel for the Police is most helpful, but no substitute for objective statistical information. As to the fourth offence, Ms Jenkins submitted that the sentence of 6 months imprisonment fell within the proper exercise of the Magistrate's sentencing discretion. 14. At this point it is convenient to note that there has been some divergence in the views expressed by Judges of this Court on the basic question of the nature of an appeal to this Court against a sentence imposed by a Court of Summary Jurisdiction. The question is whether this Court may vary a sentence because it considers that, had it been in the position of the Magistrate, it would have imposed a different sentence; or whether it should vary the sentence imposed by the Magistrate only if it is first satisfied that the Magistrate erred in the exercise of his sentencing discretion. The differing views and the authorities are usefully collected and comprehensively discussed by O'Leary C.J. in Seears v McNulty (unreported, 29 July 1987) at pp 9-20. 15. The question has also arisen in the Australian Capital Territory, where the appeal legislation is similar to Part VI of the Justices Act as it stood prior to 1983; see Campbell v Fortey (1987) 85 FLR 462 and Petreski v Cargill (unreported, Full Court of the Federal Court, 9 December 1987). 16. In Campbell (supra), which involved an appeal against sentence where fresh evidence was received, Miles C.J. appeared to follow the general approach in Messel v Davern (1981) 9 NTR 21 and apply it to appeals against sentence, while noting that the Full Court of this Court was not there concerned with an appeal against the severity of sentence. 17. In Petreski (supra), which also involved an appeal against sentence, fresh evidence was received. The appeal from Magistrates in the Australian Capital Territory had formerly been by way of a hearing de novo; legislative amendments in 1984, according to an explanatory statement accompanying the amendments, were intended to make the appeal a "rehearing". The Full Court did not refer to Campbell v Fortey (supra), but for the reasons set out at pp 11-14 considered that the legislature intended that the Magistrate's sentencing discretion should not be interfered with by the Supreme Court unless it first found error of the kind contemplated by House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, or concluded that the sentence was manifestly excessive. The Full Court considered the position might be different where additional evidence was led before the Supreme Court "because it may change the factual matrix which the Court is obliged to consider" (p 14). 18. Messel v Davern (supra) involved a Reference to the Full Court under s.21 of the Supreme Court Act, arising from an appeal against a conviction in the Court of Summary Jurisdiction at Darwin. The Full Court discussed the nature of the appeal at pp 23-28. It held, following a study of the relevant provisions of the Justices Act, that the appeal under Part VI of the Act was not an appeal in the strict sense and not a hearing de novo, but a rehearing in the sense of a new trial of the issue raised by the notice of appeal, using the evidence in the court below, with a discretion to receive further evidence. Part VI was later substantially amended by the Justices Amendment Act 1983. The Court stressed the importance, in ascertaining the nature of the appeal, of the provision that additional evidence could be received. It considered that the appellate court's function was to give the judgment which should have been given, had the case come at that time before the Court of Summary Jurisdiction. The Full Court was not there considering a judgment in which the Court of Summary Jurisdiction had a discretion, as in sentencing; however, it referred without disapproval to Conwell v Kelly (1951-56) NTJ 407, a decision of Kriewaldt J. in 1957, which dealt with the nature of an appeal against sentence. 19. In Conwell (supra) the argument was directed almost entirely to the severity of the sentence under appeal. Kriewaldt J. dealt with the nature of the appeal against sentence at pp 410-413. At p 410 his Honour said:- "It seems to me that it is now settled law that, subject to the limitations which arise from the essential differences in character between the original hearing of a complaint by a Court of Summary

Jurisdiction and the hearing of an appeal from that Court by the Supreme court, the Supreme Court on the appeal 'is bound to pronounce such judgment as in their view ought to have been pronounced in the Court from which the appeal proceeds': Tregilgas v Johns [1933] SAStRp 14; (1933) SASR 88 at p91. That duty extends to cases where the penalty imposed in the lower Court is under attack. ... The general attitude adopted by the Supreme Court of South Australia, which, with all respect, I think is the one I should also take on appeals as to severity of sentence, is exemplified in the following extracts from judgments delivered by that Court. In Thatcher v Lenthall [1933] SAStRp 38; (1933) SASR 322 (where the penalty imposed was not altered) at p 323 Napier J. (as he then was) said: 'I think that the general practice of this Court has always been that a Magistrate must be allowed to exercise his discretion as to the amount of the fine. There is no doubt that the Supreme Court will interfere if it appears that the penalty is manifestly excessive or involves any erroneous application of the proper principles of assessment; but in the ordinary course of things, the Special Magistrates are in a better position than this Court can be to estimate the necessities of the case, to make the penalty fit the crime, and to preserve some reasonable consistency in the cases that come before them.'" (emphasis mine) See also the observations to similar effect by Barwick C.J. in Griffiths v R (1977) 137 CLR 293 at 310. Kriewaldt J. quoted extracts, illustrating the similar approach adopted by Judges in South Australia in Wade v Turner [1934] SAStRp 15; (1934) SASR 62 at 64 (Napier J.), Gorman v Virgo [1939] SAStRp 48; (1939) SASR 375 (Angas Parsons J.) and Park v Crafter [1941] SAStRp 33; (1941) SASR 169 at 171 (Richards J.). His Honour noted the "slightly more restricted view" taken by Philp J. in the Supreme Court of Queensland, in Donovan v McKillop (1949) QWN 47 and Hughes v Bradfield (1949) QWN 46 at 68. Philp J. considered that he could not interfere with the sentence unless the Magistrate had gone wrong in law or the sentence was manifestly excessive or unjust. Kriewaldt J. noted that Macrossan C.J. in Higher v Hopgood (1950) QWN 31 "expressed himself in similar language to that employed by the South Australian Supreme Court". Finally, his Honour referred to House v The King [1936] HCA 40; 55 CLR 499 at 505 and Cranssen v The King [1936] HCA 42; 55 CLR 509 at 519, and noted that the statement of the law in Cranssen (supra), as to the approach to be taken by the appellate court in relation to an appeal against sentence "is binding on me". 20. As noted earlier, the Full Court of this Court in Messel v Davern (supra) was not addressing the question of the nature of an appeal from a discretionary judgment. I consider that the nature of a discretionary judgment differs so markedly from an ordinary judgment that the views expressed in Messel v Davern (supra) as to the nature of the appeal under Part VI of the Justices Act are properly confined to an appeal against conviction, at least where no further evidence is received. The views expressed may in any event require some reconsideration before being applied today, in light of the 1983 amendments to Part VI. I think that I was wrong in Moffatt v Seears (1986) 2 NTJ 1506 to apply the general approach in Messel v Davern (supra) to an appeal against sentence; the actual decision on that appeal would not be affected by that error, as the totality of the sentences under appeal was held to be manifestly excessive. 21. I consider that the correct approach to an appeal against sentence under the Justices Act is that since the determination of a sentence is a discretionary judgment, this Court should not interfere by substituting its own judgment in a case where fresh evidence is not admitted on appeal, unless it is first satisfied that the Magistrate fell into error and improperly exercised his sentencing discretion. This approach also has the merit of keeping the law on the subject in the Northern Territory in line with that of the other States and Territories except New South Wales and Victoria, where the respective appeals to the District and County Courts are hearings de novo. 22. Accordingly, for this appeal to succeed it must first be demonstrated that the sentences were individually or in the aggregate, manifestly excessive. No information has been placed before this Court by the appellant as to the current tariff in the Court of Summary Jurisdiction at Darwin, in relation to the common offences in question; in all appeals where it is contended that sentences are manifestly excessive it is encumbent upon the appellant to place information of that type before this Court. 23. Ms Jenkins has however helpfully referred me to R v Ian Algy (unreported, Muirhead J., 12 December 1984), and R v Jimmy Ah Toy (unreported, Rice J., 8 October 1987). These were not appeal cases; the sentences were imposed in this Court. In Ian Algy (supra) there was an unlawful use of a motor vehicle with a circumstance of aggravation, in that the vehicle was damaged when, driving at excessive speed along the Victoria Highway, the prisoner aged 21, who had already been fined for driving under the influence and dangerous driving, lost control and smashed into a parked car, "writing off" both vehicles. His Honour described the manner of driving as "very dangerous", and sentenced the prisoner to 8 months imprisonment. In Jimmy Ah Toy (supra) the prisoner, aged 29, who was drunk, pleaded guilty to the unlawful use of a front end loader, the value of which constituted a circumstance of aggravation under Code s.218(2)(b); he drove it some 70 kilometres from Cooinda to Mudginberri Station. He had 4 prior convictions between 1981 and 1985 for the illegal use of motor vehicles and 2 for exceeding 0.08, for all of which he had been fined. His Honour stated that he would take a "firm line" because the prisoner needed "a taste of a further short period in prison", and imposed a sentence of 12 months imprisonment, directing release on a bond after 3 months. Clearly, both cases were on the facts more serious than the present, the perpetrators were older and did not have clear records. 24. In addition to these cases, I note 2 cases before this Court on appeal, Murphy v Smith (1983) 2 NTJ 547 and Yovanovic v Pryce (1985) 1 NTJ 75. Murphy (supra) involved an appeal against the severity of a sentence of imprisonment imposed by a Court of Summary Jurisdiction at Tennant Creek. The appellant had pleaded guilty to charges of driving with a blood alcohol concentration in excess of 0.08 (.320), and of the illegal use of a motor vehicle. He was fined $500 on the first charge, and sentenced to 1 months imprisonment on the second. One of the grounds of appeal was that the sentence was manifestly excessive. The Court noted that "a large part of the reason for punishing people" for this sort of offence was the need for personal and general deterrence; the sentence was "in the bottom half of the scale" (then $1000 or imprisonment for 6 months or both); the appellant had had 13 previous convictions in the last 5 years; and he had not previously served a sentence. His Honour concluded that the sentence was not manifestly excessive and dismissed the appeal. 25. Yovanovic (supra) was an appeal against the severity of 8 sentences imposed in respect of counts charging the unlawful use of motor vehicles on 16 occasions. The sentences varied between 4 and 8 months; the maximum permissible sentence on each was, as here, 2 years imprisonment. There was also a sentence of 4 months imprisonment for being unlawfully on premises. Four of the sentences were concurrent, but cumulative upon the sentence of 4 months for being unlawfully on premises; the other 4 sentences were concurrent, but cumulative upon a 6 month sentence which was one of the first 4 sentences. The aggregate was 18 months imprisonment: a 6 months non-parole period was fixed. The appellant, aged 17, appealed on the grounds that the sentences, individually and in the aggregate, were manifestly excessive. He had "rolled" one vehicle, and collided in another with an electrical pole while attempting to avoid pursuing Police; he had a record of prior convictions. Muirhead J. noted that the 2 year maximum sentence "is an indication of the contemporary legislative view". His Honour did not consider that the Magistrate had erred in the imposition of the individual sentences, noting that the appellant had unlawfully used 8 vehicles within 3 months. His Honour said (p 81):- "The sentences which ranged from four months to eight months, made appropriate allowance for damage done and took into account the continuation of the illegal conduct, especially bearing in mind the previous criminal record." His Honour considered that the appellant's history "could not have given the Magistrate confidence as to the outcome of an order for conditional release." (p 82). In dismissing the appeal, his Honour observed (at pp 82-83):- "There is a wealth of authority supportive of the view that the courts should be slow to imprison young offenders, that the courts should keep rehabilitation much in mind. Few of those experienced with the effects of imprisonment and the sentencing of young offenders can feel much satisfaction that a sentence of imprisonment is a constructive step qua the offender himself. But there is a very real danger that repeated exercises in leniency bring the law into contempt, not only in the eyes of the offender, but in the eyes of the community. His Worship made clear reference to his responsibilities to the local community in his remarks on sentence. Unfortunately when previous efforts to rehabilitate by conditional release, community work orders and the like have failed, imprisonment remains the only option and there is always the hope that such punishment may deflect the repetitive offender from the path he has taken - especially when other efforts have failed." (emphasis mine) I respectfully agree with those comments. The facts in Yovanovic and the personal circumstances of the appellant in that case clearly called for punishment of a different order to that required in this case. 26. In the present case, the appellant was a first offender. The general approach to sentencing youthful first offenders is as set out at length by O'Leary J. (as he then was) in Matan v Ruehland (1984) 3 NTJ 672 at 681-685 and by Forster C.J. in Jambajimba v Seears (1984) 2 NTJ 439. Reformation is usually the dominant consideration in determining the appropriate punishment. This is so as better to achieve the long-term protection of the public. Practicable alternatives to sending youthful first offenders to gaol are to be sought, to assist them to reform and to avoid the possible corrupting influence of other gaol inmates. As Burbury C.J. said in Lahey v Sanderson [1959] TASStRp 10; (1959) Tas SR 17 at 21:- "It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol." Neither of the factors identified by Burbury C.J. as pointing to a custodial sentence apply in this case. 27. In Jambajimba (supra) the appellant appealed against a sentence of 14 days imprisonment imposed at Alice Springs for the illegal use of a motor vehicle, on the ground that it was manifestly excessive. He was aged 20, and had no prior convictions. He was holidaying in Alice Springs. He broke a side window of a vehicle and drove it for a short distance. His blood alcohol concentration was 0.250. The Magistrate stressed the need for general deterrence, the offence being prevalent. Forster C.J. said (at p 442):- "There is a conflict here between two principles concerning appeals against sentence. On the one hand it is said that appeal courts should not lightly interfere with the sentencing discretion of the magistrate on the spot who can be taken to know the prevalence of the offence and local conditions generally. On the other hand it is said, and I have said it myself, that in ordinary circumstances

Franklin Mason v Leonard David Pryce [1988] NTSC 28; 53 NTR 1; 7 MVR 129; 34 A Crim R 1

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Franklin Mason v Leonard David Pryce [1988] NTSC 28; 53 NTR 1; 7 MVR 129; 34 A Crim R 1 (19 April 1988)

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