Gumurdul v Reinke [2006] NTSC 27

Gumurdul v Reinke [2006] NTSC 27

[1] This is an appeal against custodial sentences imposed on a young aboriginal man in a Court of Summary Jurisdiction sitting at Darwin on 16 January 2006, in respect of multiple offences to which he had pleaded guilty.

[2] He was originally charged with a total of eight separate offences, but eventually pleaded guilty to four of them.

[3] Details of the offences to which he pleaded and the ultimate sentencing dispositions related to them are as follows:

1. Stealing 10 cans of VB beer valued 2 weeks imprisonment

1. Aggravated unlawful use of a motor 4 months imprisonment

3. Stealing 100 litres of diesel/1 car battery 1 month imprisonment

1. Consuming liquor in a restricted area, Fine $200 plus $40 victim's

[4] The learned magistrate directed that all custodial sentences be served concurrently and be suspended after the appellant had served two months, with an operative period of 18 months. The appellant has in fact served seven days prior to being bailed in respect of the present appeal.

[5] The appellant appeals against the custodial sentences imposed on him on the ground that the effective head sentence and period directed to be served are manifestly excessive, it being said that the learned magistrate gave undue weight to matters personal to the appellant and also wrongly excluded alternative dispositions in light of what are said to be the objective circumstances of the offending and the offender.

[6] The appellant is a young aboriginal male now aged 22 years. He was 20 years of age at the time of the earliest of the offences to which he pleaded. He has an antecedent record dating back to November 2001. This includes four offences of stealing, three offences of trespassing on enclosed premises, one offence of enter a building at night with intent and two offences of property damage.

[7] In all fairness it must be noted that the offences have been committed on a limited number of occasions.

[8] Six of them were committed on two dates in October 2001. The appellant appeared before the court in respect of all of them on 28 November 2001, at which time he received an effective custodial head sentence of five months imprisonment to run from 22 October 2001. This was suspended, with an operative period of 12 months.

[9] Four of them were dealt with on 26 November 2002. Of these, two were committed on 9 October 2002 and two were committed on 20 April 2002. They attracted nominal fines and a release on a good behaviour bond for a period of 12 months.

[10] The convictions recorded on 26 November 2002 gave rise to breaching applications in respect to the previous suspended sentences totalling five months. The appellant was required to spend one day in prison in respect of them. The relevant operative period had, of course, actually expired by the time he came before the court on 26 November 2002.

[11] Each of the offences now under consideration was committed by a group of aboriginal offenders, of whom the appellant was but one.

[12] The learned magistrate was informed that, during the night of 28 February 2004, the appellant and three companions decided to break into the Gunbalunya Sports Club at Oenpelli. They did so and stole a quantity of cans of VB beer. The appellant was given 10 cans as his share. He was arrested at Middle Camp Oenpelli on 18 October 2004 and placed in the cells by reason of being under the influence of petrol and alcohol.

[13] When questioned by the police he spoke freely of the incident of 28 February and said that he had consumed cans of beer given to him by his companions. It was put to the learned magistrate by counsel for the appellant that he did not actually participate in the break into the Club premises. It was rather that he accepted some of the cans that were stolen, knowing that they were stolen. He was said to have been under the influence of petrol at the time.

[14] The Court was further informed that, on the afternoon of Friday 1 October 2004, the appellant, who was walking in Oenpelli Community, was approached by three co-offenders who were driving a white Toyota LandCruiser. He was told by one of them that the car had been stolen and that "he was to come" for a ride. He got into the rear of the vehicle and was driven to the billabong at Oenpelli. The four men were later joined by three others. The vehicle was then driven to and from a number of locations, including Darwin and return to the Oenpelli area. The appellant was not actually in the vehicle for the whole of the time. On return, the defendant left the vehicle and commenced to walk home. As he did so he heard a screaming diesel engine and saw dust. He walked back to the billabong edge and observed the vehicle in the water. Two other offenders were exiting it.

[15] The second stealing offence was committed by the appellant and a co-offender, at a time when he had consumed alcohol and was under the influence of petrol. They were using a vehicle belonging to the co-offender and it had been proposed to go out hunting for Buffalo at the outstation in question to obtain food for the family. The vehicle was in disrepair and required a battery. Because the outstation did not have fuel and a charged battery, the two of them went to the Powerhouse. The co-offender broke the lock on the fuel tank and decanted a hundred litres of fuel. The appellant carried the can of fuel back to the co-offender's car. It was the co-offender who took the battery and carried it away.

[16] It was put to the learned magistrate that all of the offences were committed at times when the appellant was addicted to petrol sniffing and had consumed alcohol. The other offenders were all relatives of the appellant (either his uncles or cousins) and many of them were petrol sniffers of long standing.

[17] It is not disputed that the appellant was granted bail in respect of the present offences on 19 October 2004, but failed to answer to his bail on 27 October 2004. A warrant was issued for his arrest and he then appeared in custody for the first time on 12 January 2006. He was remanded in custody until ultimately dealt with on 16 January 2006.

[18] It should be mentioned that when the appellant was released on bail on 19 October 2004, it was a condition of the bail that he go back to the outstation. The Court was informed that he had difficulty in getting back in because it was at the start of the wet season and the country was virtually impassable. It did not prove possible to arrange a flight back in. It was for that reason that he did not answer to his bail.

[19] On 16 January 2006 counsel for the appellant put the following matters to the learned magistrate:

(1) The appellant had stayed out of trouble since the commission of the offences in October 2004.

(2) He was residing in stable accommodation with his cousin.

(3) He had obtained a full time CDEP job at which he was working regularly.

(4) There was no longer petrol sniffing and he had distanced himself from his co-offenders and their anti-social activities.

(5) He had had a ban that was imposed on him lifted by the Club and was now able to enjoy regular visits there with his workmates. He had learnt responsible drinking.

(6) He was living with a partner who had been instrumental in turning him away from his association with the co-offenders. He came home at night, did not go out looking for trouble and enjoyed living his then present lifestyle with his partner.

(7) He had some accomplishment as an artist. He worked part-time with Injalak Arts and Craft when not doing his CDEP work and earned between $300-500 per month for his paintings.

(8) He was playing football for the outstation Bombers and hoped to be playing in the local Jabiru competition.

[20] Counsel for the appellant pointed out to the learned magistrate that he had been in custody for seven days. It was submitted that a community work order would be appropriate in relation to the offences.

[21] It does not appear that the prosecutor was invited to comment on that proposition.

[22] The learned magistrate did not have any pre-sentence report before him, nor did he call for one. He appears to have summarily dismissed the proposal for a disposition by way of community work order. He certainly did not call for any assessment as to the appellant's suitability for such a disposition.

[23] Having briefly referred to the fact that the delay in disposal of the charges had been due to the fact that the appellant had not answered to his bail, the learned magistrate had this to say:

"He's an aboriginal young man from a fairly remote community where this kind of thing is prevalent especially by young males. It causes much mayhem in the community and in my view there needs to be a prison sentence.

Having regard to the persuasive plea from Ms Musk, I'm prepared to suspend some of that, even though I know that he's had previous suspended sentences and had breached on them.

I wasn't thinking of going to even a partially suspended sentence but I've been persuaded by you Ms Musk to do it. Let's hope he doesn't come back again as he has done in the past with breaching suspended sentences. I hate setting someone up to fail, you see, but he appears to have made progress and kept out of trouble in the last few years.

On charge four - which I regard as very serious - he is convicted and sentenced to four months imprisonment. On charge two, convicted and sentenced to two weeks imprisonment concurrent with the previous sentence. Charge six, convicted and sentenced to one months imprisonment concurrent with the previous sentences. Charge three, convicted and fined $200 with A$40 levy.

A total effective sentence of four months backdated to commence on 9 January, that's taking into account when he went into custody plus two days previously, suspended after two months on the basis that he commits no other offence punishable by imprisonment for a period of 18 months.

I take into account the principles and guidelines of the Sentencing Act. The prevalence of this kind of offending in that area, his guilty plea and his age as well as the other matters mentioned by Ms Musk."

[24] It is trite to say that, on appeal of this type, the onus lies on the appellant of demonstrating error on the part of the learned magistrate. This Court, in its appellate role, will not interfere with a sentence imposed merely because it is of the view that it would have imposed a less or different sentence, or that it is felt that the sentence imposed is over-severe. It interferes only if it be shown that the sentencing magistrate was in error, by acting on a wrong principle, or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the learned magistrate said in the proceedings, or the sentence itself may be so excessive, in the circumstances, as to manifest error. (Salmon v Chute and Anor [1994] NTSC 21; (1994) 94 NTR 1 at 24_, Crannsen v The King_ [1936] HCA 42; (1936) 55 CLR 509).

[25] Ms Dwyer, who appeared for the appellant, readily accepted that burden.

[26] She submitted that the effective sentence imposed was manifestly excessive for two principal reasons.

[27] First, she contended that, bearing in mind the relative gravity of the offences (having particular regard to the degree of culpability of the appellant and the mitigating factors related to him) it was apparent that the learned magistrate had failed to have regard to the principle that a requirement to actually serve a custodial sentence ought only to be implemented as a strategy of last resort.

[28] Second, she argued that it was patent that the learned magistrate had failed to give sufficient weight to the appellant's demonstrated rehabilitation.

[29] Unlike the sentencing legislation of some other jurisdictions, the Sentencing Act does not expressly stipulate that a custodial disposition is to be a sentencing strategy of last resort. However, s 7 of that statute lists a variety of sentencing options in ascending order of severity. The most severe prescribed option is the recording of a conviction and an order that the offender actually serve a term of imprisonment.

[30] In Turner v Trennery (reproduced at [1997] 1 NTSC 21 at 38_)_ Kearney J made the point that:

"...... The imposition of a term of actual imprisonment is rightly termed 'a last resort'. That is clear from the ascending order of sentencing dispositions in s7 of the Sentencing Act, where it appears at (j) as the last of the specific dispositions, from the ascending order of custodial dispositions in Division 5 of Part 3 of the Act, and from the common law on sentencing to the extent that it is not affected by the Act."

[31] The substance of that dictum has consistently been accepted in this Court.

[32] I infer that this matter was dealt with by the learned magistrate in the course of a busy daily list. No formal pre-sentence report had ever been prepared in relation to the appellant. I have previously made the point that the learned magistrate did not see fit to direct the preparation of such a report, notwithstanding his obvious immediate view that the appellant, a quite young Aboriginal, ought probably to serve a custodial term.

[33] Not only did he dismiss, out of hand, the possibility of any sentencing option other than actual service of some period of imprisonment, but also he did not express any reasons why the proposal for a community work order was inappropriate, or that actual service of a custodial term was the only appropriate sentencing strategy in the circumstances - other than to refer to the prevalence of this type of offending in remote areas and the impact of it on communities.

[34] It is obvious that he focused on the prevalence of offending in remote areas, even although he said that he had regard to the plea, the appellant's age and "the other matters mentioned by Ms Musk". It is quite clear that his first reaction had been that the appellant ought to serve an appropriate full effective custodial sentence and that it was only the submissions in mitigation that had led him to suspend half of it.

[35] It does not appear that, in his thinking, those submissions bore substantially on the head sentences imposed and it is apparent that the fact that the appellant had earlier breached suspended sentences also weighed heavily on the mind of the learned magistrate.

[36] Ms Dwyer strongly argued that the disposition finally adopted was simply too much of a quantum leap that failed to recognise the important considerations that:

(1) The relevant offences had been committed as long ago as late 2004. Whilst it was true that the appellant had failed to answer to his bail, the fact of the matter was that, in the 15 month period while he remained at large, he had not come to the attention of the police. Even more importantly, he had demonstrated significant progress towards rehabilitation, as readily appeared from the eight matters that I have listed as having specifically been brought to the attention of the learned magistrate.

(2) In effect, she said that these were very concrete indicators of a weighty nature and not mere "pious hope" type submissions. They marked a substantial turnaround so far as the appellant was concerned and plainly attracted a much greater degree of consideration than the learned magistrate afforded them. This was particularly so as it was apparent that the appellant had overcome his petrol sniffing addiction that had, in the past, played a significant role in his offending behaviour. He had been under the influence of petrol fumes on the occasion of each of the offences presently under consideration.

(3) The point was made that it does not appear that the learned magistrate acknowledged that the appellant had by no means been the instigator of any of the offences - particularly the most serious of them, as to which he had, literally, merely "gone along for the ride". He had not played any part in the stealing of the LandCruiser and had not even been present when it was taken. He had had nothing to do with the damaging of the vehicle and, again, was not present when, to use Ms Dwyer's colloquialism, it was "trashed". It was contended that the relevant four-month head sentence, half of which was to be served, was manifestly disproportionate to the appellant's level of criminal culpability apropos the LandCruiser offence. It emphasised a degree of focus on deterrence that was more appropriately directed at the principal offenders.

(4) Further, she stressed that the appellant had not conceived of the theft of the cans of beer, but had been led by co-offenders and opportunistically participated in the spoils of the enterprise.

(5) I took her to say that the fuel and battery offence had related to a situation in which the appellant had been persuaded to join with a co-offender (who owned the relevant vehicle). Once again, he had been led to participate and was not the primary offender.

(6) The appellant had already spent seven days in custody when he appeared before the learned magistrate. I took Ms Dwyer to make the point that this was a substantial penalty in its own right that, she contended, was not adequately taken into consideration.

[37] The additional point was made that the prosecution had not sought to challenge any of the facts asserted by counsel for the appellant, at first instance.

[38] Ms Dwyer argued that there was obvious fallacy in the approach of the learned magistrate in that, not only did he not give the mitigatory features identified to him sufficient weight (particularly having regard to the limited level of criminal culpability of the appellant as to each of the three offences under consideration), but he appears only to have taken them into account as to a decision to partially suspend the effective head sentence imposed, rather than initially using that information as a basis for deciding, as a first step, whether a non-custodial disposition was appropriate in all circumstances. She submits that the reasons expressed by the learned magistrate quite clearly indicate such an error in approach.

[39] Ms Ozolins, for the respondent, joined issue with the foregoing submissions. She argued that the appellant had not discharged his onus of demonstrating error on the part of the learned magistrate, as mandated by the authorities applicable to appeals of this nature.

[40] She contended that, in balancing the objective circumstances of the offence with the subjective circumstances of the offender, four specific aspects were particularly important:

(1) the offending caused substantial damage to the LandCruiser;

(2) the type of offending is prevalent in remote communities;

(3) the offending was constituted by separate offences committed at different times; and

(4) the offender "has numerous prior convictions for similar offending".

[41] As against those considerations, she argued, the learned magistrate had duly taken into account, in a proper manner, the mitigatory aspects that had been put to him.

[42] In the course of her submissions, she sought to stress what, she put, were a number of important considerations.

[43] She emphasised the appellant's antecedent history and the breaching by him of prior suspended sentences. This history was, she said, indicative of an attitude of unwillingness to comply with Court orders, as was the failure to answer to bail. Whilst the appellant was not to be punished for the latter by imposition of a higher sentence, it was indicative of a general attitude on his part.

[44] Ms Ozolins submitted that the proposition that the appellant had become a law-abiding citizen and had made quantum advances in rehabilitation during the 15 month period that he was at large had to be viewed with scepticism, given that he was in breach of the law and must have appreciated that a warrant would have issued for his arrest.

[45] She went on to argue that the learned magistrate only had statements from the bar table as to the alleged rehabilitation aspects. In any event, rehabilitation is but one factor and rehabilitation whilst an offender is at large in breach of bail conditions cannot be given the same weight as might otherwise be the case (R v Howcher [2004] NSWCCA 179; (2004) 146 A Crim R 371 at 376). No positive evidence had been submitted that prior offending had, in fact, been linked to petrol sniffing that was tantamount to some form of drug addiction.

[46] Finally, she sought to make the point that it was not incumbent on the learned magistrate to methodically list all options referred to in s7 of the Sentencing Act and then indicate why certain of them were inappropriate. It had to be inferred that he had considered all matters necessarily implicit in the conclusion how to which he came (Mawson v Nayda, reproduced at [1995] 3 NTSC 1516 at 1528).

[47] I am constrained, at the outset, to comment that I have great difficulty with the proposition advanced by Ms Ozolins that, absent positive evidence led on behalf of an offender, factual propositions advanced from the bar table by counsel in the course of sentencing pleas ought not to be accepted.

[48] All that need be said in response is that it has long been the accepted practice in the criminal jurisdiction to accept and act on factual statements (particularly as to the personal background of an offender) advanced from the bar table, unless they are disputed as to their accuracy or otherwise questioned by the prosecution, or, in the circumstances of the case, there is some positive, apparent reason to doubt their accuracy.

[49] Were it otherwise, the business of the Courts would grind to a halt.

[50] It must be said that, in the instant case, not only was there no attempt by the prosecutor to question the validity and accuracy of Ms Musk's summation of the personal background and circumstances of the appellant, but also there was no apparent reason to doubt what she put.

[51] Leaving that point to one side, I entertain no doubt that Ms Ozolins' points (1) to (4) above are an accurate reflection of the approach adopted by the learned magistrate and that he also acted on the type of view expressed by her in relation to the appellant's antecedent history. The remarks expressed by him are consistent with such an assessment. What weight he attributed to the rehabilitative aspects, as to the head sentences imposed in particular, is by no means clear. He certainly mentioned the fact that the appellant had made progress and kept out of trouble in more recent times.

[52] In the circumstances of this case, there are problems with certain other aspects referred to by Ms Ozolins.

[53] A vital consideration in this case was a proper, objective assessment of the level of criminal culpability of the appellant, particularly as to the aggravated unlawful use offence. On the undisputed facts the level of the appellant's offending was almost minimal. As I have pointed out, he played no part in the taking of the vehicle, was simply foolish enough to accept a pressing invitation from his relatives to go for a ride in it and played no part in the ultimate "trashing" of the vehicle. He was not even present when the vehicle was initially taken and had nothing to do with the driving of it into the billabong.

[54] The second point to be made is that, whilst the type of offending may well be prevalent in remote communities, that is no warrant for imposing sentences disproportionate to the objective culpability of the appellant, having particular regard to his part in the commission of the various offences. In each instance, he was intoxicated by petrol fumes and/or alcohol, led by the principal offenders concerned and played a minor role in what took place.

[55] It is, of course, true that the offending consisted of separate offences committed on separate occasions. This, no doubt, justified imposition of separate sentences. No point is taken by Ms Dwyer as to this or, having regard to totality, the concurrency of any appropriate sentences imposed. The real issues are the quantum of the effective head sentence and the extent to which it ought to have been suspended.

[56] Much weight has been placed on the appellant's antecedent record and what has been said to have been his breaching history and failure to answer to his bail.

[57] As to the latter, it appears that there was a quite reasonable explanation for the initial failure to answer to bail and whilst, no doubt, the appellant ought to have subsequently taken steps to surrender himself when travel did become feasible, it seems to me to be something of a counsel of unrealistic perfection to expect that to have occurred well after the event in relation to a young aboriginal male located on a remote outstation where he was required to go in the first place.

[58] Be that as it may, I am of the opinion that undue weight has plainly been placed on the appellant's antecedent record. I consider that, for whatever reason, it is a matter of considerable doubt as to whether a full analysis of it was attempted at the time, so as to reveal its true significance. It may be that this was due to the pressure of the daily list, a failure on the part of counsel to emphasise this aspect in the course of submissions, or the seeming typicality of the scenario, or a combination of those factors.

[59] I have already pointed out that, relevantly, such record is by no means as damning as at first sight appears - certainly when compared with many others appearing before the Courts.

[60] Given that a number of prior offences had been committed, they actually occurred over limited time spans and when the appellant was said to have been an addicted petrol sniffer.

[61] He had actually only appeared before the court on two prior occasions, once in November 2001 and once in November 2002. The maximum sentence that had been imposed on him was a two-month total effective suspended sentence of imprisonment and the operative date had expired when he came before the court for the second time. It is small wonder that each breach attracted a sentence of imprisonment for one day, notwithstanding the length of the original head sentence. The two breaches actually referred to short sentences originally imposed on the same day.

[62] In short, this was not the frequently occurring situation of a chronic offender who had often appeared before the court and long since exhausted his entitlement to any real form of further leniency.

[63] On the contrary, as Ms Musk was at pains to point out to the learned magistrate, there were quite unusual circumstances attaching to the appellant. There were very powerful mitigating circumstances that, inter alia, did indicate an important turnaround in the appellant's life and what, for him, were great strides, of a very finite nature, along the path of rehabilitation - including a cessation of petrol sniffing.

[64] In all the circumstances, I consider that the sentencing process plainly miscarried, principally because undue weight was given to the factors of general and personal deterrence at the expense of important mitigating factors and because there appear to have been imperfect assessments of the true objective level of criminality of the appellant's conduct and the nature and extent of his prior offending.

[65] In my view, an effective total head sentence of four months imprisonment was a very severe penalty, given the matters to which I have referred. Moreover, I am firmly of the opinion that a requirement to actually serve any portion of it, beyond the seven days that had already been served, cannot be supported. Such a requirement is manifestly excessive and, I venture to suggest, is likely be seriously counterproductive to a continuance of the rehabilitative progress already made.

[66] The appeal will be allowed and I will hear counsel as to what consequential orders ought to be made.

________________________________________