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.