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[1986] NTSC 32
Supreme Court of the NT
1986-06-23
Nader J
Original judgment source is linked above.
COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Nader J.(1) CWDS Appeal - Appeal against inadequacy of sentence
Shortly before midnight on Thursday 26 September l985, the respondent, in the company of four other youths, were at Alyangulya. They decided to try to obtain some beer. They made their way to the Alyangulya Golf Club, where the respondent and another tried to force open a window. The respondent pushed on the window whilst his companion forced the lock with a knife. The window opened, activating an alarm. The respondent and his companion took fright and ran away. The youths, including the respondent, then made their way to the Alyangulya Recreational Club, where the respondent found a shovel. He went to the bottle shop and smashed a side window with it in order to enter the premises. He then crawled through a window into the shop whilst a companion kept watch outside. Inside the shop, the respondent removed two cartons of beer. He left the premises by the window, taking the beer with him. The group, including the respondent, then made their way to the Milner Bay workshop area in order to obtain a motor vehicle. They went to the Ports Office and found an open side window by which the respondent and others entered the premises. Inside, they located a number of vehicle keys which they took with them. After leaving the office, they found several motor vehicles in the compound outside. The respondent unsuccessfully attempted to start a Leyland prime mover, using a screwdriver. He was again unsuccessful when he attempted to start a Toyota Land Cruiser using the screwdriver. However, he did succeed in starting a Massey Ferguson tractor. One of the respondent's friends then drove the tractor through a roller door of the workshop. The respondent and others then pushed on the door in order to open it further. They entered the workshop to obtain a vehicle in which to return to the Mission. They took a Toyota Hi-lux utility, started it and drove it from the workshop. The respondent also rode a Honda motor cycle from the workshop. The beer referred to above was then placed in the utility. The group left the area, the respondent riding the motor cycle as far as the Bartalumba Bay corner where he abandoned it. He joined his friends in the utility and they continued to Angurugu. They went into an area of bush where the respondent and his friends drank the beer. 9. When the beer was finished, the respondent, together with another person, entered the Toyota Hi-lux utility and, with the respondent driving, began to career around the Mission area. This resulted in residents phoning the Police, who attended shortly after. The respondent, upon sighting the Police, made provocative finger gestures and proceeded to speed around the Mission with the Police in pursuit. The respondent lost control of the vehicle on numerous occasions whilst being followed, resulting in the vehicle spinning out of control and running off the road. On one occasion, the vehicle broadsided into a tree, bounced off and continued around the Mission. A large number of people had gathered outside their houses to watch. On at least two occasions, people had to run for cover as the respondent drove and skidded between houses at speed. As the respondent was driving around the Mission in this way, he continued to taunt Police with finger gestures. Most of the time, he was driving with only one hand on the steering wheel. After a time, the respondent drove the vehicle away from the Mission, crossed a low level bridge and headed towards Umbakumba. Due to dust and foggy conditions, Police reduced their speed, every now and then catching glimpses of the respondent's vehicle leaving the road, travelling through bush and back onto the roadway. At last, on one of these occasions, the vehicle left the road and hit a ditch, coming to a dead stop with the front of the vehicle ploughed into a mound of dirt, causing the rear wheels to lose traction. Police ran to the car and, after a short struggle, the respondent and the other person were handcuffed and placed in the rear of the Police car. They were placed in cells at the Police Station. 10. On Wednesday 2 October l985, the respondent and others were in the Alyangulya Police Station prison, having been remanded in custody. At about 6 p.m., two girls known to the respondent walked along the lane outside the cell complex. They signified their presence by whistling. The respondent and his companions instructed the two girls to get them a hacksaw in order that they might cut their way out. The girls then went away. At about 11.30 p.m. on the same day, the two girls returned to the Police Station and, while one kept watch, the other climbed up onto the courthouse roof, walked to the caged area outside the cell block, climbed down onto the caged area and passed through a hacksaw with blade attached. During the following day, the respondent and his companions took turns in cutting a hole in the mesh of the caged area. Having completed the task, at about 5.30 p.m. the respondent and his two companions crawled through the hole in the mesh, climbed onto the roof of the courthouse and escaped. They ran through houses into a nearby bush area. During the night and the next morning, they made their way to Angurugu. Subsequently, Police were advised of the escape by a remaining prisoner and a search was commenced. On the following morning, members of the Angurugu community joined in the search and eventually located the respondent and his friends in bushland nearby. The three were held until Police arrived. They were rearrested and returned to the cells. 11. During the evening of Monday 7 October l985, the respondent was in custody at the Alyangulya Police Station. He and another prisoner began to cut through the iron cell bars with two pieces of hacksaw blade which had been concealed inside a mattress following the earlier successful escape. Acting on information, Police inspected the cells on Tuesday 8 October and found that the bars of the inner cell door had been severed. They also located the two pieces of hacksaw blade in the mattress. 12. It will be seen that these offences occurred on 19 August l985, 10 September l985, 15 September l985, 26 September l985, 3 October l985 and 7 October l985. For all of the offences, the effective aggregate sentence was 6 months imprisonment. 13. There were matters put in mitigation by Mr Norman, counsel for the respondent, which the learned magistrate rightly took into account. However, the respondent has, for one of his age, a bad record of lawless behaviour. The learned magistrate, with an insignificant exception that had no effect on the aggregate sentence, ordered all of the individual sentences to be served concurrently. The resulting head sentence of six months imprisonment was so inordinately short, having regard to the whole of the respondent's conduct, that I am forced to say that his Worship's sentencing discretion miscarried amounting to an error of law. 14. In sentencing an offender for multiple offences, the court is often confronted with great difficulty. It is desirable that each sentence should be a fair measure of the culpability of the offence for which it was passed. The device of not passing any sentence for one or more offences to achieve an acceptable aggregate should be avoided unless it is otherwise appropriate not to impose a punishment. A court called upon to sentence an offender assesses the extent of his past criminal conduct by reference to the sentences that appear on his criminal record. A very light sentence, or no sentence at all, may give to a future sentencing judge a false impression that the earlier conduct was not serious or that it was trivial. 15. It is also desirable that offences that are not in a real way connected should, in general, be the subject of cumulative sentences. It is impossible to lay down in advance what criteria should be applied to determine whether there is sufficient integration between offences to warrant concurrent sentences. Extreme cases are obvious; others are more difficult and allow for a wide exercise of discretion. Mere temporal proximity is not conclusive. Some courses of criminal activity extend over weeks or even months, yet individual offences committed in the course thereof may be truly regarded as one transaction for the purpose of sentencing. On the other hand, distinct and unrelated offences committed during a single night may be unrelated. 16. It is, in my view, the overriding requirement that the aggregate sentence made up of the individual sentences should not lack proportion to the total criminality of the offender's conduct. This last can fairly be regarded as a true principle of law. To fail in this respect is to impose an unjust sentence: either too lenient or too severe. From the point of view of the prisoner and the community, the aggregate sentence is of paramount importance. 17. The desirability that each component sentence should reflect the gravity of the conduct constituting the offence for which it was imposed and the desirability of complying with the practice of making sentences concurrent or cumulative according to the criterion referred to above must be subordinated to the principle that the aggregate sentence be a just one. In general, I think it is preferable, in order to achieve an aggregate sentence of just severity, to overlap or make concurrent appropriate individual sentences rather than to shorten them and make them cumulative. The latter course is more misleading, appearing on a criminal record, than the former. Indeed, these desirable goals are often not reconcilable and have to be departed from in particular cases. 18. A wide discretion is allowed in the matter of sentencing and the occasional utterances of judges concerned with resolving particular problems should not be readily seen as or elevated to the status of statements of principle: a status never intended by the judges themselves. For example, that a judge has said in a particular case that two offences committed 12 days apart should be treated as having sufficient unity to attract concurrency of sentences should not be thereafter regarded by subordinate courts as meaning that whenever offences are committed 12 days apart or less they should attract concurrent sentences. Even where a judgment may use the word 'principle', it is necessary to ascertain whether the judge really intended to state a principle or merely a rule which it is desirable to follow if it can be followed without infringing a more important one. 19. It appears to me that in grappling with the problem of giving weight to conflicting criteria concerning whether or not sentences ought to be accumulated, his Worship was distracted from the application of the true principle that the aggregate sentence should fairly and justly reflect the culpability of the respondent. 20. It is my opinion that one only has to read the narrative of facts constituting the offences for which the respondent was sentenced in the light of his very bad criminal record to see at a glance that an aggregate of six months imprisonment was manifestly inadequate. If, indeed, the application of a rule, perceived by the learned magistrate as a principle of law, led to such a consequence, there could be no stronger proof that the rule ought not to be so regarded. 21. In addition to complaining about the manifest inadequacy of the aggregate sentence, counsel for the appellant also pointed out undesirable features of certain individual sentences. 22. Having decided that his Worship's sentencing discretion miscarried and having already specified 18 months as the appropriate aggregate sentence, it now remains to specify the component sentences and their relationships with one another. In general, I regard the individual sentences as passed by his Worship as appropriate and I do not propose to interfere with them, except to make some of the sentences cumulative upon others. However, for the reasons stated, it is desirable that sentences should have been passed in respect of those matters for which his Worship imposed no penalty. I have already said that each individual sentence should bear some relationship to the gravity of the offence. In lieu of the orders made by his Worship, I impose the sentences set forth below for the offences specified: 10 September l985 Damage to property 7 days imprisonment 26 September l985 Damage to property (broken window) 7 days imprisonment 26 September l985 Damage to property (damage to roller door) 1 months imprisonment 26 September l985 Bring liquor into restricted area 1 month imprisonment 26 September l985 Consume liquor in restricted area 1 month imprisonment 26 September l985 Drive manner dangerous 1 month imprisonment plus 12 months disqualification 26 September l985 Drive unlicensed 7 days imprisonment 23. In other respects, I have not interfered with the individual sentences of the learned magistrate. 24. I direct that the sentences imposed for the matters contained in Appeal Notices Nos. 1 and 2 be served concurrently; that the sentences imposed for the matters contained in Appeal Notice No. 3 be served concurrently as between themselves and cumulatively upon the sentences for the matters contained in Appeal Notices Nos. 1 and 2; that the sentences imposed for the matters contained in Appeal Notices Nos. 4, 4A, 5 and 6 be served concurrently as between themselves and cumulatively upon the sentences imposed for the matters contained in Appeal Notice no. 3. This achieves an effective aggregate sentence of 18 months.
Gregory Ian Lade and Peter Upton
Kenneth Mamarika and the Justices Act [1986] NTSC 32; 83 FLR 312