Namala v Whittington [2016] NTSC 71

Bukulaptji v The Queen [2009] NTCCA 7; (2009) 24 NTLR 210; House v The King [1936] HCA 40; (1936) 55 CLR 499; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, referred to

Ryan v Malogorski [2012] NTSC 55; Jinjair v Verity [2014] NTSC 35, considered

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Namala v Whittington [2015] NTSC 71

[1] The appellant appeals the severity of a sentence imposed by the Court of Summary Jurisdiction on 2 March 2016.

[2] The appellant was charged on information that, on 9 November 2015, he stole a one litre bottle of Jim Beam, valued at $59, the property of Airport Hotel, Jingili. The appellant was later charged on complaint with a breach of bail on account of his failure to attend court on 11 November 2015 to answer the stealing charge. He was arrested by police for the breach of bail on 1 March 2016, and remained in custody when he entered pleas of guilty to both charges on 2 March 2016.

[3] A document containing the agreed facts for each of the offences was tendered, and the facts read out in court.

[4] The admitted facts in relation to the stealing charge were as follows. At about 3.00 pm on Monday, 9 November 2015, the appellant attended the BWS store at the Airport Hotel, McMillan's Road, Jingili, in company with a male co-offender.

[5] The appellant and the co-offender entered the store and moved about the aisles. The appellant removed a one litre bottle of Jim Beam valued at $59 from a shelf and attempted to hide the bottle under his shirt. He and his co-offender then left the store without paying. The appellant admitted that he did not have permission to remove any property from the BWS store and keep it as his own.

[6] The appellant's actions had been observed by a customer, who alerted the store manager, who then followed the appellant from the store, across McMillans Road, to an area of grassy bushland where he observed the appellant discard the Jim Beam and sit down with other persons. The store manager then retrieved the bottle of Jim Beam, returned to the store and notified police.

[7] The actions of the appellant and co-offender had been captured by an in-store CCTV camera.

[8] Police officers subsequently attended the bushland area and arrested the appellant and his co-offender. They were taken to the Darwin Watchhouse and placed in protective custody due to their level of intoxication. The appellant was later charged and bail considered.

[9] The appellant had a limited criminal record. The only relevant matters were convictions imposed by the Court of Summary Jurisdiction in May 2012 for aggravated unlawful entry of a building and stealing. The offences were committed in November 2011. The appellant was sentenced to carry out 50 hours of community work.

[10] Counsel for the appellant made submissions in mitigation of penalty. He drew the magistrate's attention to the appellant's limited record of prior offending, and the gap between the offences committed in November 2011 and the offending in November 2015. He referred to the relatively low value of the stolen alcohol. He submitted that the bottle was recovered intact and in a resalable condition.

[11] Counsel went on to submit that the appropriate sentence was a fine, or possibly community work. In relation to the latter, however, the appellant had broken his arm a few days prior to his court appearance, and his capacity to perform community work was in doubt. Defence counsel told the magistrate that community work was not available to the appellant.[1] In relation to a fine, the appellant had already served three days on remand, and therefore, counsel submitted, the magistrate should sentence the appellant to three days, noting that it had been served in full, rather than impose a fine.[2] Counsel made it clear at a later point that, if the appellant had not spent time in custody, he would have been asking for a fine; but that he was asking for the expedient 'time served' sentence to ensure that time served was "not wasted".[3]

[12] The magistrate informed defence counsel that he considered that a sentence of imprisonment was appropriate, but that the sentence should be longer than three days.[4] His Honour rejected defence counsel's pragmatic submission because he considered that a sentence of three days was inadequate.

[13] The magistrate made the following sentencing remarks:[5]

HIS HONOUR: Today the defendant Anthony Namala has pleaded guilty to a single count of stealing. He has done so at an early opportunity but not at the earliest opportunity, in that he was arrested on 9 November 2015 and bailed on that date to appear in court on 11 November 2015 and he did not appear, which resulted that a warrant had to be issued for his arrest.

... Accordingly while I give him credit for an early plea, I do not give him credit for anything like the earliest plea or the full discount that would be warranted for the earliest plea in such circumstances.

The maximum penalty for stealing is 7 years in gaol. The offending in this case was the defendant and a co-accused entered the hotel bottle shop with the intention of stealing. The defendant hid a bottle of Jim Beam alcohol valued at $59 under his shirt and then left the hotel without attempting to pay. It was at all times his intention to do that.

This defendant was born on 15 February 1984, so at the time of this offending he was 31 and three-quarter years of age. He is now 32 years of age. He has a prior conviction for stealing. That offending occurred on 5 November 2011, four years before the offending which I'm dealing with today. At that time he was 27 and three-quarter years of age.

Neither at the time of the offending in November 2011 nor at the time of the offending in November 2015 was this defendant a young person for sentencing purposes. He was an adult. And the very important allowances which are made for young offenders, whether they be youth or whether they be young for sentencing purposes, a rough rule of thumb would be under the age of 25 and over the age of 18. But these things aren't fixed in concrete.

But the discount or the concession doesn't apply in this case. A gap of four years to an adult between 27 and 31, in my view is not a very great gap. The defendant clearly offended when he was in Darwin and on a drinking session. He normally lives in Palumpa where, if you look at his antecedents, he has not gotten into serious trouble apart from some driving matters.

The sentencing dispositions available to me in these circumstances include a fine. I'm told that at the present time he is not employed. No doubt he has some income from Social Security. I haven't been provided with details of that. I am informed that he cannot undertake community work because of an injury he has suffered recently, a broken arm which is why he's in Darwin at the moment.

In my view a fine does not recognise, given the circumstances of this offending and of this offender, the seriousness of the offending. To sentence the defendant to time served, a maximum of three days taking into account the original arrest in November and this his arrest yesterday and his court appearance today is very insufficient. It serves to trivialise the seriousness or the gravity of this type of offending. It's extremely prevalent offending.

And in my view a sentence of actual imprisonment is called for and it is one that is to be greater than the three days.

[14] The magistrate convicted the appellant of both offences. For the stealing offence he sentenced the appellant to imprisonment for one month, backdated by three days and deemed to have commenced on 29 February 2016. The magistrate suspended the sentence immediately and fixed a 12 month operational period.[6] For the breach of bail his Honour sentenced the appellant to seven days imprisonment, to be served fully concurrently with the sentence for stealing. The total effective sentence was thus imprisonment for one month, suspended immediately and subject to a 12 month operational period.

[15] The seven-day sentence for breach of bail is not challenged on appeal. However, it is contended that the sentence for the stealing offence was manifestly excessive and that the learned magistrate failed to apply the principle of imprisonment as a last resort.

[16] An issue identified by the appellant on appeal[7] was whether the magistrate was justified in inferring that the appellant entered the BWS premises with the intention to steal alcohol. The appellant's intention at the time of entering the store was not specified in the admitted facts. No submissions were made in relation to the appellant's intention at the time of entering the store. The magistrate had not signalled that he might draw the inference. Counsel for the appellant contends that the magistrate "elevated the objective seriousness without a proper basis". Rolled up with that contention is an asserted failure on the part of the magistrate to accord procedural fairness.

[17] The finding of fact that the appellant had entered the store with the intention to steal alcohol was a finding adverse to the appellant and hence the magistrate was required to be satisfied beyond reasonable doubt of that fact.[8]

[18] On the agreed facts, the appellant did not purchase any items from the BWS store. He removed the Jim Beam from a shelf, hid it under his shirt, and then stole it by taking it from the store without paying or attempting to pay. In my opinion, however, the magistrate was not justified in drawing the inference that the appellant entered the BWS premises with the intention to steal alcohol, without first giving defence counsel the opportunity to make a contrary submission. There were a number of possible inferences, including that the appellant had entered the store with honest or neutral intentions (for example, for the purpose of browsing and looking at the liquor items in stock, intending to purchase liquor himself or perhaps believing that his co-offender intended to purchase liquor), but that he had formed the intention to steal while inside the store. The agreed facts did not state whether or not the appellant and his co-offender had money to pay for any purchases they might have made at the BWS store. If, between them, they had no money, and the appellant knew, an inference that the appellant intended to purchase alcohol would not have been a reasonable inference. In that case, the magistrate's inference may well have been justified. Similarly, the agreed facts did not state or otherwise indicate how long the appellant and his co-offender had been in the store before the stealing took place. The evidence was simply that they had "moved about the aisles". If the appellant had entered the store and gone straight to the shelf where the bourbon was on display, and then stolen the bottle of Jim Beam, the magistrate would have had a stronger basis to infer that he had entered with the intention of stealing.

[19] Notwithstanding my conclusion in [18], I do not consider that the magistrate's possible misapprehension as to the point in time at which the appellant formed the intention to steal was a mistake of fact of the kind referred to in House v The King,[9] sufficient to open up the sentence to correction on appeal. The appellant had not given any explanation for entering the store. Although the magistrate should not have drawn the adverse inference he did, his Honour equally could not have drawn any inferences favourable to the appellant since there was no evidence on which he could have been satisfied in the appellant's favour on the balance of probabilities.

[20] The appellant's argument in relation to manifest excess was that the magistrate did not apply or have regard to the principle of proportionality, that he failed to consider s 40(3) Sentencing Act and that his Honour did not assess the objective seriousness of the appellant's offending "in the scale of stealing offences".

[21] Counsel for the appellant contends that the appellant had stolen a single low value item which was recovered very shortly after the offending, apparently intact and in a saleable condition; that the offending was unsophisticated; that the appellant, a 32-year-old male, had only one prior conviction for stealing, four years earlier; and that the plea to the stealing charge was entered at an early opportunity.

[22] These contentions may be accepted. However, in relation to the last of the matters submitted, it may be noted that the appellant did not attend court to answer the stealing charge on the day he was bailed to attend. The appellant did not attend court until he was arrested four months later while drinking with family members at a Darwin suburban bus stop. His explanation for the failure to attend court on the first occasion was inadequate,[10] as the magistrate made clear.[11] The appellant's avoidance of court raised questions about the level of his remorse and acceptance of responsibility for his offending. The appellant's conduct detracted from the notional credit to be given for his guilty plea.

[23] It is clear from the magistrate's sentencing remarks that his Honour considered that punishment and deterrence, both general and specific, were the relevant sentencing objectives. The magistrate was clearly concerned about the prevalence of the offence of shop stealing ("this kind of offending"), and his remarks were probably directed at the stealing of alcohol. The appellant does not dispute the magistrate's assessment of prevalence, or that sentencing objectives in his case should have been otherwise. His principal contention is that, even taking those matters into account, the sentence was disproportionate to the objective seriousness of the offence.

[24] The principles applicable to the manifest excess ground of appeal are well known.[12] It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge committed error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.

[25] In Truong v The Queen,[13] the Court of Criminal Appeal referred with approval to the following statement in relation to manifest excess made by Bongiorno JA in Hanks v The Queen:[14]

The term 'manifest excess' is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.

[26] The maximum sentence for the offence to which the applicant pleaded guilty was a term of imprisonment of 7 years.[15] The sentence of one month imposed by the magistrate should be seen in the context of a maximum sentence of 84 months. It is not immediately apparent that the sentence was disproportionate to the objective seriousness of the offence, or well outside the reasonable range open to the magistrate in the circumstances of the offence and the offender. Nor is it immediately apparent that the magistrate did not assess the objective seriousness of the appellant's offending in the scale of stealing offences.

[27] Counsel for the appellant did not argue that the sentence was outside the range of sentences currently imposed by the Court of Summary Jurisdiction for shop stealing offences. Rather, counsel relied on three single judge appeal decisions in support of the manifest excess ground: Ryan v Malagorski,[16] Munkara v St Leger Moss,[17] and Jinjair v Verity.[18]

[28] In Ryan v Malagorski, Blokland J upheld an appeal against severity of sentence in the case of a 22 year old single mother charged with stealing clothes valued at $99.90 from a shop, and also damaging clothing. The appellant had no prior history of dishonesty. She was sentenced to a term of imprisonment of two weeks, fully suspended. Blokland J expressed concern that the sentencing magistrate had imposed a prison sentence, a sentence of last resort, and remarked that the benchmark for crimes justifying a custodial sentence is higher in the case of youthful offenders.[19] Her Honour imposed a fine of $400 plus victims' levy in substitution for the original sentence.

[29] In Munkara v St Leger Moss, Hiley J upheld an appeal against severity of sentence in the case of a 34 year old male charged with two counts of stealing rum from a liquor store. The first count was for stealing two bottles of rum, and the second for stealing another bottle of rum about three hours later. Hiley J considered that the sentence of six weeks was manifestly excessive because the offence was low range, the monetary value of the goods was low, the appellant pleaded guilty at the earliest opportunity (the day after he had been caught), the appellant had already spent four days in custody, and the appellant had no prior convictions for offences of dishonesty. In the circumstances, his Honour resentenced the appellant and imposed a sentence (for 'time served') of four days' imprisonment.

[30] In Jinjair v Verity, Blokland J upheld an appeal against severity of sentence in the case of a 40 year old man charged with receiving stolen goods, namely alcohol to the value of $70. Her Honour imposed a sentence of one week in substitution for the original sentence of six weeks, observing that a prison sentence of six weeks implied "conduct of a significantly more serious type than is represented by the actual offending". Her Honour made the following assessment:[20]

A sentence of six weeks imprisonment does, however, strike as harsh given the value of the property received; the circumstances under which the appellant received the alcohol; the extent of the appellant's knowledge of the theft and the purpose for receiving the stolen property. The value of the goods was $70. The appellant had just been released from protective custody and was offered alcohol to drink in the street that he was told was stolen; he continued to drink the alcohol. This was obviously not a case involving any planning, prior knowledge of the theft or intention to dispose of the property for financial gain.

[31] Counsel for the appellant does not contend that the above appeal decisions establish a range, but argues that they "support the submission that ... the sentence was excessive."[21] The appellant concedes "some variance in the circumstances" of the above sentencing appeals compared with the sentence the subject of the present appeal, but argues that "the differences are not so great for it to be appropriate that a sentence of one month imprisonment was imposed."[22] I reject that argument. The three sentencing appeal decisions (and only three were relied on) were specific to their own facts. None of them stated any principle which necessarily applies in the case of the within appellant: a 32 year old male offender with a relatively recent prior conviction for stealing, who has re-offended by stealing alcohol in company and who has entered a plea of guilty only after being arrested for breach of bail. In any event, even if one assumes that three offenders have received more lenient sentences than the appellant, for similar offending, that does not mean that the sentence imposed on the appellant was manifestly excessive (nor that the earlier sentences were manifestly inadequate). As Heydon J observed in Hili v The Queen,[23] the ability of a later sentencing judge to differ from an earlier sentence exists where the judge simply disagrees with the earlier sentence. Further, as pointed out by the Court in Truong v the Queen,[24] it may not even be a situation of frank disagreement; an obvious example is where the later judge sees the need to emphasise different sentencing objectives to those emphasised in an earlier sentence or series of sentences.

[32] The appellant has not established that the sentence imposed was clearly and obviously excessive, or that it was so far outside the range of a reasonable discretionary judgment as to itself bespeak error. This Court must be very careful to ensure that its intervention on appeal is appropriate. Sentencing for the lesser offences of dishonesty, and in particular stealing from retail outlets, is generally the role of the judges of the Local Court. Those judges are in a better position than the judges of this Court to assess the prevalence of particular kinds of offending and to determine how deterrence for such offending may be best achieved by specific, crafted sentences for individual defendants who appear before them. The fact that a judge of this Court may consider the offending is of a lower order of seriousness or deserving of a lesser penalty is not to the point. It was the magistrate's task to assess the gravity of the offending and it has not been established that his Honour's assessment resulted in a manifestly excessive sentence.

[33] The first ground of appeal therefore must fail.

[34] The second ground of appeal is that the magistrate failed to apply the principle of imprisonment as a last resort. The ground does not raise the length of the term of imprisonment imposed, but asserts error in the fact that imprisonment was imposed at all.

[35] There is no doubt that the principle of imprisonment as a punishment of last resort applies even where a sentence of imprisonment is wholly or very substantially suspended. Under s 40(3) Sentencing Act, a court may not impose a suspended sentence unless the sentence of imprisonment, if unsuspended, would be appropriate. It should always be expected that the sentence, or part sentence which is suspended, may have to be served.[25] The correct approach is to determine the proper term of imprisonment and then decide whether it would be appropriate or otherwise to suspend the term of imprisonment in whole or in part.[26]

[36] The magistrate was clearly aware that he would need to be satisfied that a sentence of imprisonment was appropriate, even if he were to adopt defence counsel's submission that the sentence should be for the equivalent of time served on remand.

[37] As mentioned in [11] above, defence counsel submitted that the appropriate sentence was a fine or possibly community work. However, counsel informed the Magistrate that the appellant was not in a position to do community work because he had recently broken his arm. Surprisingly then, the appellant's written submissions read as follows:[27]

Other sentencing options available to the learned Magistrate included a good behaviour bond or a community work order. The learned magistrate had heard submissions that the appellant had a broken arm but did not order a formal assessment for a community work order from the Department of Corrections.

[38] The use of the word 'but' suggests that the magistrate failed to do something which he ought to have done. It is clear, however, that the reason the magistrate did not order a formal assessment for a community work order was because of information provided by defence counsel as to the appellant's incapacity. Moreover, the magistrate was not asked to order a formal assessment for a community work order.

[39] The magistrate was also well aware of a range of sentencing options available to him, including the imposition of a fine. Defence counsel had submitted that a fine would have been "the appropriate disposition" but for time served. The magistrate clearly disagreed, for reasons explained by him in his sentencing remarks extracted at [13] above. I note in any event that the magistrate was not provided with details of the appellant's financial circumstances to enable him to fix an appropriate fine had he been minded to do so.

[40] For a number of reasons, including the age of the appellant, the nature of the offending and the fact that the type of offending was prevalent, his Honour determined that the appropriate sentence was a sentence of imprisonment and that it should be greater than the three days served.

[41] The appellant has not established that the magistrate breached the principle of imprisonment as a last resort. Ground 2 of the appeal therefore fails.

[42] I would add that, although the magistrate did not articulate his sentencing reasons beyond those which appear in [13] above, I conclude that his Honour wanted the appellant's possible return to gaol (to serve the balance of the one month's sentence) to act as a deterrent during the 12 month operational period which he fixed. Clearly the magistrate was concerned that the appellant had not taken the offending seriously, had been cavalier with the court and required something to direct his attention to the consequences of his offending and the possible consequences if he were to re-offend in the following 12 months. Notwithstanding the pressured circumstances which often exist in the Court of Summary Jurisdiction, the magistrate's overall sentence appears to have been quite carefully crafted to achieve appropriate sentencing objectives.

[43] The appeal should be dismissed.

[6] Sentencing Act, s 40(6).

[7] Appellant's written outline of submissions, par 24, and oral argument.

[8] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27].

[9] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

[10] Transcript 2 March 2016 pp 12.9 - 13.2.

[11] His Honour described the explanation as "underwhelming": transcript 2 March 2016 p 15.1.

[12] See, for example, Liddy v R [2005] NTCCA 4 at [12]; cited with approval in Morrow v The Queen [2013] NTCCA 7 at [36].

[13] Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186 at [37].

[14] Hanks v The Queen [2011] VSCA 7, per Bongiorno JA at [22], Redlich JA agreeing.

[15] For subject matter up to $100,000 in value.

[16] Ryan v Malogorski [2012] NTSC 55.

[17] Unpublished decision Northern Territory Supreme Court (Hiley J), 17 April 2014 in JA 1 of 2014 (21356827). Transcript 17 April 2014.

[18] Jinjair v Verity [2014] NTSC 35.

[19] Ryan v Malogorski [2012] NTSC 55 at [16].

[20] Jinjair v Verity [2014] NTSC 35 at [14].

[21] Appellant's written outline of submissions, par 25.

[22] Appellant's written outline of submissions, par 29.

[23] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [79].

[24] Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186 at [30].

[25] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [78], per Kirby J;

[26] Bukulaptji v The Queen [2009] NTCCA 7; (2009) 24 NTLR 210 at [31], per Riley J.

[27] Appellant's written outline of submissions, par 17.