Supreme Court of the NT|1994-05-27|Before: Kearney J

Joshua v Thomson & Anor [1994] NTSC 50; 119 FLR 296 (27 May 1994)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA KEARNEY J CWDS Appeal - sentence HRNG DARWIN, 24 May 1994 #DATE 27:5:1994 Appearances not available ORDER Appeals allowed. JUDGE1 KEARNEY J On 24 May the following 3 appeals were argued together:- (1) No. 14 of 1994. By Notice of Appeal dated 14 March 1994 the appellant appealed against a sentence of one month's imprisonment imposed on him by the Court of Summary Jurisdiction at Darwin on 18 February 1994, after he pleaded guilty to an offence of unlawfully damaging school property (45 glass louvres) on 22 November 1993, and a circumstance of aggravation in that the loss occasioned by the damage exceeded $500, namely $800. The offence was charged in an Indictment dated 12 December 1993 as an offence under s251(1) of the Criminal Code, the loss occasioned thereby being charged as a circumstance of aggravation pursuant to ss251(2)(c) and 305(4). Pursuant to s251(2)(c) what was charged was a crime and carries a maximum punishment of 7 years imprisonment. (2) No. 12 of 1994. By Notice of Appeal dated 14 March 1994 the appellant appealed against a sentence of 1 month's imprisonment imposed on him by the Court of Summary Jurisdiction at Darwin on 18 February 1994 after he pleaded guilty to an offence under s251(1) of the Code of (again) unlawfully damaging school property (45 glass louvres, again) valued at $250, on 18 December 1993. This offence, charged in a Complaint dated 1 February 1994, carries a maximum punishment of 2 years imprisonment; the sentence was directed to be served cumulatively upon the sentence imposed in (1) above. (3) No. 13 of 1994. By Notice of Appeal dated 14 March 1994 the appellant appealed against two sentences, each of 3 months imprisonment, imposed on him by the Court of Summary Jurisdiction at Darwin on 18 February 1994 after he had pleaded guilty to the following offences under s218(1) of the Criminal Code:- (a) Unlawfully using a motor vehicle, a Toyota Troopcarrier, between 23 January 1994 and 24 January 1994; and (b) unlawfully using a motor vehicle, a Toyota Troopcarrier, on 28 January 1994. 2. These offences each carried a maximum punishment of 2 years imprisonment. The sentence for offence (b) was directed to be served cumulatively upon the sentence for offence (a), which was in turn directed to be served cumulatively upon the sentence in (2) above. 3. In the result, the total effective sentence for the 4 offences was 8 months imprisonment. 4. By consent, an affidavit of Ms Burrows of 22 May 1994 was relied upon by the appellant in relation in particular to appeal No. 13 of 1994. It sets out in tabular form the results of her search of NAALAS files for the period 1 January 1991 - October 1993. The table gives brief details of the Court dispositions in some 183 cases involving adults from Groote Eylandt and mainland communities, including Numbulwar, who were dealt with by the Court of Summary Jurisdiction at Alyangula in that period for the offence of unlawfully using a motor vehicle. Mr Stubbs of counsel for the appellant placed before the Court the salient features of several of the NAALAS files, dealing with some of the cases in the table. Although the present appeals flow from cases dealt with by the Court of Summary Jurisdiction at Darwin, the sentencing Magistrate normally constitutes the Court of Summary Jurisdiction at Alyangula where, as is well known, a special sentencing regime has been in place for several years in a largely successful endeavour to reduce the former excessively high rate of offending and imprisonment on Groote Eylandt. See B. McCormack: 'The Criminal Justice System on Groote Eylandt in 1993' (June 1993). His Worship has a clear advantage over the members of this Court, in terms of his wide experience in the region, and his knowledge of the local conditions, ways of life, habits, customs and characteristics of the people of Numbulwar, the appellant's community. THE GROUNDS OF APPEAL 5. There are 3 grounds of appeal which are common to each of the 3 appeals. A fourth ground is applicable only to appeal No. 14 of 1994; a fifth ground is common to appeals Nos. 12 and 14 of 1994. I deal with these grounds in the order in which Mr Stubbs argued them. GROUND NO.1 6. This ground applies only to appeal No. 14 of 1994. The appellant contends that his Worship was in effect informed that he did not admit the circumstance of aggravation charged - that the loss exceeded $500; that his Worship failed to determine whether that circumstance existed; and that this failure rendered uncertain the maximum punishment which the appellant faced (2 years under Code s251(1), or 7 years under s251(2)(c)), the amount of any proposed compensation (since the loss was not particularized), and the factual basis upon which he was sentenced. THE PROCEEDINGS ON THE PLEA 7. This charge related to the earliest of the 4 offences for which the appellant was sentenced on 18 February 1994; it was the first offence for which he was charged before the Court that day. It will be recalled that the cost of the 45 smashed louvres was put at $800. Appeal No. 12 of 1994 relates to an offence committed some 2 weeks later, on 8 December 1993, for damaging an identical number of louvres (45) said in the Complaint to be valued at $250; this was the second offence for which he was charged before the Court. Ms Burrows was his counsel on 18 February. 8. Immediately after he pleaded guilty to the offence of 22 November 1993, there was the following exchange:- "MS BURROWS: Your Worship, just before the next plea is taken, the next plea is going to be to exactly (the) same offence but on a different day with a value of 45 (inaudible) $250. Unfortunately, I didn't speak to my friend about (it) this morning. I had spoken to a prosecutor previously about it. HIS WORSHIP: I would have thought $800 is more the figure than 250. MS BURROWS: No. We actually made some inquiries about the cost of louvres being $7 each and when we dealt with a similar matter at Numbulwar - I think Mark Numbulbalwar (sic, Nundhirrbala) whom Your Worship dealt with a couple weeks ago, a juvenile. What happened on that occasion was, we accepted a value of $7 on each louvre plus a $50 transportation fee for it. So I just clarify that in relation to the - - - HIS WORSHIP: All right. Well, what do you want to do, sergeant? Anyway, just read the next charge out. He's already pleaded guilty to the first one (the offence of 22 November 1993). THE PROSECUTOR: Yes, Your Worship. SECOND CHARGE (the offence of 8 December 1993) READ BY THE PROSECUTOR" 9. It is clear that Ms Burrows here was drawing attention to the inconsistency in valuing the 45 louvres in the offence of 22 November at $800, while the value of the same number in the offence of 8 December was put at $250. The appellant pleaded guilty to the remaining 3 charges and the following exchange then took place:- "THE PROSECUTOR: Your Worship, on that first one I read out, about the damage to the louvres, (on 22 November 1993) I believe something may have been worked out prior to my - I'VE HAD NO KNOWLEDGE OF THE COST OF THOSE LOUVRES. MS BURROWS: Your Worship, it may be the case that that (inaudible) to be withdrawn BECAUSE WE DON'T AGREE THAT THE VALUE'S CERTAINLY $800. HIS WORSHIP: They are the particulars. We're not arguing about the fact that he damaged it. We're arguing about the ... MS BURROWS: No, Your Worship. Definitely not. We certainly agree that it's (inaudible) but it is listed as a circumstance of aggravation. HIS WORSHIP: Well, you tell me what the facts are and I'll make up my mind whether the charge - I'll hear from Miss Burrows and then I can make up my mind, the factual basis for sentencing. Yes? THE PROSECUTOR: Yes, Your Worship, the facts. At about 2 am on Sunday, 22 November 1993, the defendant was at his

home address where he had an argument with his wife. The defendant stormed out of the house, picked up a star picket and walked over to Numbulwar School where he smashed the louvre windows, a total of 45 in all. A few days later he was spoken to in a written record of interview, wherein he admitting (sic, admitted) smashing it. He stated he was sober at the time and the property smashed was the property of the NT Government. He didn't have - - - permission for smashing. That was at the Numbulwar School and they will seek restitution. HIS WORSHIP: Yes. Are those facts - - - MS BURROWS: Yes, Your Worship, those facts are admitted." (emphasis mine) 10. I consider it is clear, in relation to the words emphasized in this passage, that Ms Burrows was suggesting that the plea of guilty to the charge of the circumstance of aggravation should be withdrawn, because the alleged loss of $800 was not admitted. I consider from his remarks that it is highly likely that his Worship, after hearing the facts, would have treated the earlier plea as a plea of guilty to damaging the louvres, but not as a plea of guilty to the circumstance of aggravation charged. The statement of facts on which the prosecution relied made no reference to the value of the louvres smashed; there was no evidence of their value. However, that is not to the point; the appellant was entitled in the circumstances to have recorded that he pleaded not guilty to the circumstance of aggravation charged, and to have his case dealt with on that basis.
In due course the appellant was sentenced to 1 month's imprisonment for this offence. THE APPELLANT'S SUBMISSIONS 11. Mr Stubbs first submitted in effect that the Information had wrongly charged this offence on the basis that it was an offence of criminal damage under Code s251(1), accompanied by a circumstance of aggravation under s251(2)(c). He submitted that to charge on this basis involved a misinterpretation of s251; in truth, it created 13 separate offences, one of which was constituted by s251(2)(c), and the Indictment should have charged it as such. He submitted that accordingly the proceedings on the Indictment were a nullity. 12. Code s251(1) provides, as far as relevant:- "(1) Any person who unlawfully damages any property is guilty of an offence and is liable to imprisonment for 2 years. (2) If - (a) ... (b) ... (c) the loss caused or intended to be caused by such damage is greater than $500; or (d) ... the offender is guilty of a crime and is liable to imprisonment for 7 years." 13. Section 251(3) also sets out 4 circumstances, and provides that in those circumstances "the offender is guilty of a crime and is liable to imprisonment for 14 years." Similarly, s251(4) sets out 4 circumstances, and provides that in those circumstances "the offender is guilty of a crime and is liable to imprisonment for life." 14. On the face of it, s251 does not create a single offence constituted by s251(1) together with 12 different circumstances of aggravation of that single offence; rather, as Mr Stubbs submitted, it appears to create 13 separate offences of which 12 are crimes while the s251(1) offence is a simple offence; see Code s3(4). I note that a "crime" is one species of "offence"; see s3(1). If that is the correct construction of s251, the Indictment of 12 December 1993 was defective in that it did not charge the crime constituted by s251(2)(c). Further, since on that basis the amount of the loss was an element of the offence charged (and not a circumstance of aggravation), and was eventually not admitted, a plea of "not guilty" to the crime would have been the only plea which could properly ultimately have been recorded, and the hearing should have proceeded on that basis. Supporting this construction is the reference to "offence" in s251(1), where it is clearly a "simple offence", and to "crime" in s251(2), (3) and (4); it would seem from this differing nomenclature that the nature of the offences in those subsections may be different from that in s251(1). There is a distinction between a statutory provision in which proof of aggravating factors make an accused liable to greater punishment for the same offence, (as is clearly the case, for example, in s154) and one in which those factors affect the identity of the offence, by converting a lesser offence into a greater; see the view of the majority in Kingswell v The Queen (1985) 15 ACLR 264. The distinction can have practical consequences; see The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359 at 366-8, per Brennan and Deane JJ. Clearly, Mr Stubbs' submission as to the proper construction of s251 is very arguable. 15. However, the better view, I think, is that there is but one "offence" created by s251, and 12 different circumstances of aggravation, and the Indictment was correctly framed. The same question arose in relation to the very similarly worded s188, in O'Brien v Fraser [1990] NTSC 1; (1989-90) 66 NTR 9, which was not cited to the Court. Asche CJ discussed the principles and authorities at pp12-17 and held that s188(2) does not create separate offences, but circumstances of aggravation of the offence created by s188(1). It is sufficient to say that I respectfully agree with his Honour, and apply his reasoning and conclusion to s251. The requirement in s305(4) (that any circumstance of aggravation intended to be relied upon must be charged in the Indictment) satisfies the basic principle of the criminal law that all necessary factual ingredients on which the prosecution relies must be charged and proved. 16. It is also a basic principle of criminal law that there be an informed and unequivocal plea of guilty to a charge of an offence, and to any charge of a circumstance of aggravation, before the plea can found a lawful conviction and sentence for that aggravated offence. It is clear from what took place in Court on 18 February that there was ultimately no informed and unequivocal acknowledgment by the appellant of the truth of the circumstance of aggravation charged; see pp5-7. The strong likelihood is, as Mr Cato of counsel for the respondent submitted, that the learned Magistrate later ignored the circumstance of aggravation charged, and treated the plea as a plea to criminal damage simpliciter under s251(1) and sentenced on that basis. However, the possibility that he did not do so, but bore in mind the circumstance of aggravation charged and the higher maximum punishment which it carried, cannot be entirely excluded. In any event, as far the circumstance of aggravation was concerned, the plea should have been altered to one of "not guilty", in light of what Ms Burrows and the prosecutor said at pp5-7. Since a basic principle is involved, the appellant cannot be put at any risk, in that respect. 17. Mr Stubbs further submitted that on any view the offence charged could only have been dealt with summarily pursuant to s121A of the Justices Act; he conceded that the appellant had consented to this procedure, under s121A(1)(e). Hence, no doubt, his early plea of guilty to the charge; see s121A(1A) of the Act. The question is, should the Court have accepted that plea in the light of what was then put at pp5-7? I adhere to the views I expressed in this regard in Salmon v Chute (unreported, 22 February 1994) at pp5-6, viz:- "The combined effect of ss121A(1)(c), (d), (1A) and (1B), in my opinion, is that before the Court ACCEPTS the plea there must be sufficient evidence adduced before the Court by the prosecution, or facts admitted, to enable the Magistrate to form the necessary opinion under s121A(1B) "that it is proper" to accept the plea. To form that opinion the Magistrate must ask himself whether on that evidence or the admitted facts, the accused COULD lawfully be convicted of the offence charged. A Magistrate cannot simply rely on the

fact that the defendant was legally represented, to conclude that it was proper to accept the plea of guilty." (emphasis mine) 18. Clearly, in light of the passages set out at pp5-7 the plea of guilty could not lawfully have been accepted as an admission of the existence of the circumstance of aggravation charged. If nevertheless it had been (wrongly) so accepted, the maximum punishment his Worship would have had to bear in mind was 7 years imprisonment, even though he could impose no more than 2 years; see Sultan v Svikart [1989] NTSC 20; (1989) 96 FLR 457 at 460. The appellant was entitled to have resolved the question whether the amount of the loss charged was greater than $500; in light of the facts stated and relied on by the prosecution, he was entitled to have it resolved in his favour. That is to say, he was entitled to have the charge dealt with on the basis of criminal damage simpliciter, with a maximum punishment of 2 years imprisonment. 19. Mr Stubbs sought leave to amend the Notice of Appeal so as to appeal against the conviction for this offence; Mr Cato did not object, and leave was granted. I consider that in view of what was said in the Court on 18 February the appeal against the conviction for the aggravated offence of 22 November 1993 must succeed, despite the plea of guilty; the conviction must be quashed and the sentence set aside. In the light of the outcome of the other appeals, the charge should be remitted for rehearing before the Court of Summary Jurisdiction. GROUND 2 20. This ground is applicable to appeals Nos. 12 and 14 of 1994, which relate to the 2 unlawful damage offences. The appellant contends that, in sentencing, his Worship failed to take into account 2 relevant sentencing considerations, viz:- (a) The question of the payment of compensation; and (b) the offer to make further and full compensation. 21. Mr Stubbs submitted that his Worship's approach to the offence of 22 November 1993 meant that the appellant was unsure how much compensation should be paid. Further, his Worship did not refer in either case to the significance to the sentence of the appellant being prepared to pay compensation. Mr Stubbs submitted that this was a live matter and a relevant sentencing consideration. At transcript p5 the appellant's counsel Ms Burrows had submitted:- "MS BURROWS: Your Worship, in regards to the criminal damage offences, they are the type of matters of course Your Worship's dealt with on several occasions. IT IS THE CASE THAT LLOYD HAS ALREADY STARTED PAYING BACK THE MONEY. HIS FATHER, LINDSAY JOSHUA, RETAINS MONEY EACH FORTNIGHT AND THAT GOES TO THE SCHOOL PRINCIPAL IN ORDER TO PAY FOR THE DAMAGE TO THE WINDOWS. THAT'S ALREADY UNDER WAY. THOSE OFFENCES OCCURRING LAST NOVEMBER AND DECEMBER." (emphasis mine) 22. It seems that both offences involved the smashing of the school's windows. Mr Stubbs submitted that the passage quoted indicated that the appellant was prepared to pay compensation and at that time was already "paying back" the cost of the damage he had caused. He submitted that his Worship had taken no account of the payment of compensation and had given paramount consideration when sentencing to a purported community desire in that respect, and to the fact that he had treated the appellant leniently on 4 previous occasions. He submitted that in stressing these 2 factors his Worship ignored other relevant sentencing considerations. 23. If a prisoner offers to pay compensation, that is a relevant sentencing consideration, and to fail to take any account of it when sentencing is an error; see Saylor v Svikart (unreported, Martin CJ, 18 May 1994) at p7. His Honour said:- "Many crimes injure particular individuals and the ends of justice are enhanced if restitution is made. An offer of restitution made to the Court, the ability of the offender to pay it, and willingness to be bound to pay it, ought to be encouraged by some form of lesser penalty appropriate to the case. The mitigation might be more if restitution has already been made, but that is not to discount entirely an apparently genuine offer made to the Court." 24. I respectfully agree, though it is a matter for the sentencer to decide what weight to give to this factor, in all the circumstances. At transcript pp6-7 Ms Burrows had submitted that the 3 weeks which the appellant had spent in custody was sufficient punishment for his 4 offences, which were "not of the nature that this Court needs to impose lengthy terms of imprisonment", and an order for community service work would be appropriate. In proceeding to sentence immediately in the light of that submission, his Worship said at transcript pp6-7:- "I can say from the outset I don't agree with that submission that you put to me, Miss Burrows. When a community gets to the stage where they put some young offenders on the plane and send them over to Groote Eylandt it's an unusual occurrence and it's clear that the community are fed up with young boys and in particular Lloyd Joshua from - sick of their and fed (sic, up) with their continuing misbehaviour in the community. Lloyd has been treated leniently by me in the past and I've seen him on four occasions since October 1992, which is a space of some 15 months; this is the fifth time. On each occasion he was taken into custody - rather, on some of the occasions he was taken into custody for a short period and released either on probation with community service work. He's 18, I think, this year. He acts as if he's about 12. And I know that his father, Lindsay Joshua, has tried at

least on one occasion in my presence to get him to understand that he has to behave himself. He's clearly a young man who is not taking any notice of his elders and I have no confidence at this point in his life that he will; and IN MY VIEW THE INTERESTS OF THE COMMUNITY BECOME PARAMOUNT, bearing in mind that he is still a young offender, but he has continually offended AND WHERE A COMMUNITY SPEAKS IN THE WAY THAT I BELIEVE THEY HAVE, THEY DON'T WANT LLOYD BACK IN THE COMMUNITY FOR SOME (TIME). I LISTEN AND I GIVE EFFECT IN ACCORDANCE WITH THE PRINCIPLES OF SENTENCING. I'm going to send him to gaol and I'm going to give him a period of time which will give him some time to think about his future behaviour. In respect of the damaged property, for both these he's convicted and sentenced to one month's imprisonment. In respect of the second damaged property, that's cumulative with the first month. In respect of the unlawful uses, this is a common occurrence and the court should impose sentences which deter like offenders such as Lloyd. It seems to be just a game and thought to be a game by a lot

of the young men there, and not only is it potentially dangerous because their driving, the vehicle can be put out of commission and, Numbulwar being a small community, people should be entitled to simply their own government or otherwise vehicle without it being touched. On each of those he's convicted and sentenced to three months imprisonment cumulative to each other and cumulative to the terms I've just imposed. On file 9321804 one month, 9401766 one month, 9401772 six months imprisonment, a total of 8 months imprisonment, the sentences to run from 26 January 1994. Thank you, Lloyd. You've got eight months imprisonment. You'll get out after about five months. If you do this again I'm just going (sic, to) send you to prison for longer and longer periods. You've just got to learn not to touch those vehicles. Leave them alone. Do what you're told." (emphasis mine) 25. I consider that it sufficiently emerges from these remarks on sentence that his Worship did not give much weight to the payment of compensation, as a sentencing consideration; I do not think it proper to conclude that he took no account of it at all, simply because he did not mention it. 26. It was a matter for his Worship in his discretion to consider the weight he should give to the offer, and payment, of compensation. I reject this ground of appeal. GROUND 3 27. This ground applies to all 3 appeals. The appellant contends that his Worship placed "too much emphasis on apparent community attitudes (in Numbulwar) without a proper evidential basis (for these attitudes)." The basis of this ground lies in his Worship's remarks on sentence, set out at pp14-15. 28. Mr Stubbs conceded that the Magistrate was very experienced in the region and clearly had a great deal of local knowledge concerning the Numbulwar community and the appellant. This is very significant, as I mentioned at p4. He submitted that the appellant's father was a leader in the community, the appellant might be groomed to follow him, and might have been given a heavier sentence than was appropriate because of that factor. There is no evidential basis for that submission, which is mere speculation. I indicated during the hearing of the appeal that if a sentencer is contemplating taking into account certain matters knowledge of which he has acquired outside the particular proceedings, adverse to the prisoner, he should apprise the prisoner's counsel of it and afford counsel an opportunity of dealing with those matters before proceeding to sentence. Fairness dictates no less. 29. Mr Stubbs accepted that some members of the Numbulwar community had arranged to fly the appellant and some others to Groote Eylandt to be interviewed there by the Police; and they wanted them to be dealt with by the Court in Darwin. He submitted that his Worship had wrongly elevated those facts into a belief that the Numbulwar community wanted the appellant to be given a lengthy prison sentence; alternatively, his Worship had drawn on other information in his possession which had not been ventilated in Court, to that effect. He conceded that it could fairly be implied from the community's desire that the case be heard in Darwin, that it considered that some sort of custodial disposition was appropriate. A somewhat contradictory submission was that the community should not have been treated as saying that the accused could not stay in Numbulwar; they merely wanted him dealt with in Darwin, and his Worship had wrongly concluded that the community wanted the appellant to be imprisoned, and had relied on this as the major factor when sentencing him, together with his prior record. 30. I think it is fair to construe his Worship's remarks on sentencing emphasized at pp14-15, as evincing a belief on his part that the Numbulwar community considered that the appellant should receive a sentence of imprisonment, when dealt with in Darwin, so that he would not be back in the community "for some time". His Worship had not afforded Ms Burrows an opportunity to address the question whether that was in truth the view of the Numbulwar community, a view which he enunciated in the course of sentencing and to which he proceeded to give effect. 31. Mr Stubbs referred to Munungurr v The Queen (unreported, Court of Criminal Appeal, 11 February 1994), on the proper way in which community views on the disposition of offenders should be placed before the Court. He submitted that these cautionary observations were not observed in this case. That is correct, but here the Magistrate appeared to be acting on his local knowledge, and what was required was that this be revealed to counsel and submissions solicited (and if necessary, relevant materials) before the appellant was sentenced. 32. Mr Stubbs submitted that his Worship had imposed a lengthier sentence than would ordinarily have been imposed, because of his perception that that was what the Numbulwar community desired. 33. I think his Worship's sentencing remarks, emphasized at pp14-15, may fairly be construed as indicating that he gave "paramount weight" to what he perceived to be the Numbulwar community's view that the appellant be kept out of that community "for some time". I think that this can fairly be seen to have been a dominant factor in his sentencing and in the length of the effective sentence imposed. In my opinion, with respect, too much weight was given to this factor when sentencing. It is understandable that this should have occurred, as the Court of Criminal Appeal had published reasons for decision in Munungurr v The Queen (supra) just one week before; there the Court had stressed the importance of the views of remote Aboriginal communities when sentencing a member of that community for an offence committed within it. In that respect, what is important, as Muirhead J pointed out in R v Davey [1980] FCA 134; (1980) 50 FLR 57 at 60, is:- "... the attitude of the Aboriginal communities involved not only on questions of payback and community attitudes to the crime ...". 34. In Munungurr (supra) the Court stressed at p12 that the senior officers of representative Aboriginal bodies in these communities are "often ... persons of some importance in these communities according to traditional law, and can be expected to know the wishes of their communities." In general, the Court stressed (p13) the need for "evidence from those fully conversant with the language and customs (and we add, views) of the community concerned." In that case, it contemplated "detailed statements in the term of affidavits or statutory declarations", or viva voce evidence. The Court said at p14:- "The importance of having evidence put before the court in a proper manner cannot be over-emphasised. The court must be satisfied that the information which is presented to it is reliable. It would be very easy for the court to be misled by information reflecting only the views of the defendant's relatives and supporters." 35. At p19, when re-sentencing, the Court took into account "the community's wishes" as a relevant factor, "and the effect of imprisonment upon the community." In the circumstances of that case, these factors were factors in mitigation of sentence; in the present case, they operate in the reverse way. 36. No doubt the Court in Munungurr (supra) stressed the significance of "the community's wishes" as a relevant sentencing factor, in light of the Report of the Royal Commission into Aboriginal Deaths in Custody, particularly Recommendation 104 which has since been supported by the executive governments in Australia. Recommendation 104 provides:- "104. That in the case of discrete or remote communities sentencing authorities consult with Aboriginal communities and organisations as to the general range of sentences which the community considers appropriate for offences committed within the communities by members of those communities and, further, that subject to preserving the civil and legal rights of offenders and victims such consultation should in appropriate circumstances relate to sentences in individual cases." 37. The qualification there expressed "subject to preserving the civil and legal rights of offenders and victims" is very important. See also pars22.4.18-22.4.20 of Volume 3 of the Report. As the Report noted in par22.4.20, there may not in fact be a single community view, but differences of opinion within the community. Munungurr (supra) rightly stressed the need for accuracy in obtaining the views of the local community. 38. In general, it is fundamental that the Court should not pay any attention to public pressure when considering what sentence to impose. To do so is an abdication of the judicial function and gives rise to the possibility of injustice; the basis of sentencing should be the facts and circumstances of the offence and offender, as disclosed in Court. It is fundamental to sentencing that a prisoner be given a sentence appropriate to his offence, and no more; see Veen v The Queen (1979)143 CLR 458. The Court must preserve its independence from public clamour on sentencing, not because of an insensitivity to public opinion but because of the possibility of injustice if it pays attention to anything other than the record of the particular case. The magistracy and judiciary are required to administer and apply the law "without fear or favour, affection or illwill" and without being influenced by public outcry. Further, it is a cornerstone of our system of administering criminal justice that all persons are equal before and under the law; it follows that they have the right to the equal protection and benefit of the law, irrespective of their race, religion, colour, status, or anything else. It is for the Court alone to evaluate the seriousness of the offence and whether imprisonment is required, and to do so on evidence relevant to the offence and the offender, and not by reference to the views of others. 39. At the same time, the traditional orientation of the lives of Aboriginal people living in remote settlements like Numbulwar is a background fact of fundamental importance. In those communities, the continued unity and coherence of the group of which the particular accused is a member is essential, and must be recognized in the administration of criminal justice by a process of sentencing which takes due account of it, and the impact of a member's criminal behaviour upon it. The difficulties for the sentencer are manifest. As the learned Magistrate rightly pointed out in his paper (op cit) at p19:- "It is important that the concept of community in the Criminal Justice System is understood to mean firstly the entire Northern Territory community, secondly the Aboriginal section of the entire Northern Territory community, and thirdly a small community in which the court sits. The system of community justice can only be meaningful to the extent that it complies with the moral and social expectations of the local community. The system in effect should "belong" to the community in which it operates. It surely follows that justice in the community therefore can only be effectively delivered by a system which incorporates a thorough knowledge of the community, its history, clans and moieties, encourages community participation and involvement when and if necessary, and continuously monitors the effectiveness or otherwise of court dispositions. These basic requirements properly reflect "the fundamental truth that the administration of the criminal law if for any jurisdiction an intensely local experience." 40. This approach has also been recognized in the law. See, for example, Houghagen v Charra (1989) 50 SASR 419; Jadurin v The Queen [1982] FCA 215; (1982) 7 A Crim R 182 at 186; and Mamarika v The Queen [1982] FCA 94; (1982) 63 FLR 202 at 206-8, where it was accepted that the wishes of the Umbakumba community should be taken into account when determining the appropriate disposition. 41. No doubt, from his lengthy experience and local knowledge, his Worship had formed an appreciation of the Numbulwar community's views in this case; fairness dictated that he inform counsel of his views, before relying on them as a major factor in sentencing, and afford counsel an opportunity to deal with them. As that was not done, a breach of the rules of natural justice occurred; I would allow the appeals against the sentences imposed for that reason. GROUNDS 4 AND 5 42. Mr Stubbs conceded that each of the 4 sentences (1 month, 1 month, 3 months and 3 months), regarded in isolation, were not excessive. However, the totality of 8 months was manifestly excessive (Ground 4), and came about because (Ground 5) his Worship had failed to take properly into account and apply the totality principle in that respect. These grounds apply to all 3 appeals. 43. He submitted that there had been no "last look" at the total of 8 months, to see if it was appropriate. In fact it is clear that his Worship bore the total in mind, from his remarks at p15; it cannot be said that he failed to take account of the totality principle. 44. On the 'manifestly excessive' point, Mr Stubbs referred to Mamarika v Svikart (unreported, Martin CJ, 23 December 1993), noting that information identical with that placed before this Court by Ms Burrows had been placed before his Honour. The sentences for the unlawful use of a motor vehicle, with one exception, did not exceed 6 months imprisonment. He submitted that in general the data showed that most persons received non-custodial dispositions (fines and orders for community service work) even where the offences were more serious than here, and the offenders had worse records than the appellant. Where custodial dispositions were made, they did not exceed 6 months in all, for multiple offences. 45. He referred in detail to the facts and sentences imposed in Mamarika (supra) (very bad previous record, 18 months imprisonment reduced "with some reluctance" to 12 months, and released on a bond after serving about 8 months); Isaac Wuramarba, 17 April 1991 (some relevant priors, 22 offences, total effective sentence 6 months); Absolom Lalara, 11 December 1991 (many priors, several offences, 1 weeks imprisonment); Ishmael Lalara, 11 December 1991 (many priors, several offences, 2 months imprisonment); Jessup Herbert, 10 December 1991 (many priors, several offences, 6 months imprisonment); Alan Wurramara, 11 December 1991 (many priors and sentences of imprisonment, several offences, 9 months imprisonment); and other cases. 46. He submitted that "in Groote Eylandt terms" the appellant's prior record was not a bad one. The appellant was aged 17 at the time of these offences. He had been before the Court on 7 previous occasions, between December 1990 (when he was 14) and 17 November 1993 (5 days before he committed the first of these 4 offences). He had been convicted of 27 offences, mainly of the unlawful entry and stealing type, though 2 were for criminal damage and 2 involved the unlawful use of a motor vehicle. The dispositions for those offences show the usual general pattern - from community service orders to a few days imprisonment to a period of 4 months probation with a condition of residing at an outstation. 47. Mr Stubbs informed me that most Groote Eylandt offenders receive less than 6 months imprisonment; I note that that appears to be the case. Mr Stubbs conceded that in this case an effective sentence of immediate imprisonment lay within the proper exercise of the sentencing discretion but submitted that his Worship had "missed a step" in sentencing, in imposing a sentence in excess of 6 months imprisonment rather than a shorter sentence. He relied on what was said in Mamarika (supra). He submitted that his Worship had a practical 6 months ceiling on the sentences which he imposed in Groote Eylandt but had departed from it in this case in the belief that that was what the Numbulwar community desired. I observe that it seems to be correct that the sentencing 'ceiling' in practice for offenders convicted at Alyangula of multiple non-violent summary offences is of the order of 6 months imprisonment; however, that does not mean that 6 months is some type of rigid sentencing barrier. I do not consider that it has been shown that the aggregate of the sentences (8 months) is manifestly excessive in light of the circumstances in which the offences were committed. CONCLUSIONS 48. For the reasons stated at pp4-12 I allow the appeal against the conviction for the offence of 22 November 1993, set aside the sentence of 1 month's imprisonment, and remit the charge for that offence to the Court of Summary Jurisdiction for re-hearing. 49. I allow the appeals against the sentences imposed on the other 3 charges, and quash those sentences, because of the breach of the rules of natural justice in the sentencing process; see pp16 and 22. 50. The question arises as to the appropriate disposition to be made, in light of the powers of this Court in s177(2) of the Justices Act. I consider that all 4 charges should be remitted to the Court of Summary Jurisdiction at Darwin in order that the charge for the offence of 22 November 1993 may be reheard, and the appellant re-sentenced for the other 3 offences. It is clear that these charges should be dealt with promptly. I will hear counsel on the question of bail pending the re-hearing. 51. Orders accordingly.

Joshua v Thomson & Anor [1994] NTSC 50; 119 FLR 296

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Judgment (6 paragraphs)

Joshua v Thomson & Anor [1994] NTSC 50; 119 FLR 296 (27 May 1994)

Parties

Cases Cited (5)