Narjic v Hocking & Anor [2001] NTSC 75

Criminal Code 1983 (NT), s 210, s 213(4) and s 251(2)(c)

Nottle v Trenerry [1993] NTSC 47; (1993) 89 NTR 7; Brown v Lynch (1982) 5 A Crim R 404; The Queen v Scanlon [1987] NTCCA 8; (1987) 89 FLR 77, cited

R v Raggett (1990) 50 A Crim R 41; R v Tait (1979) 46 FLR 386; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, referred to.

Appellant: North Australian Aboriginal Legal Aid Service

Respondent: Office of the Director of Public Prosecutions

Narjic v Hocking & Anor [2001] NTSC 75

[1] This is an appeal against sentence imposed by a stipendiary magistrate in Darwin on 3 November 2000. The appellant entered a plea of guilty and was sentenced as follows:

File 9918555 Count 1: Unlawfully damaging property on 14 August 1999 sentenced to 14 days imprisonment (aggregate with the sentences imposed on Counts 1, 2, 3, 5 and 7 on file 20003893) and 40 hours community service.

[2] This offence involved unlawful damage to a motor vehicle the damage being to the car windscreen and roof. This damage was occasioned when the appellant threw a rock at the motor vehicle, a Magna sedan parked outside 26 Snadden Street. He was in an agitated condition following an argument with his wife. The amount to repair the damage was $940.97. There were no orders made for restitution.

[3] Further the appellant entered a plea of guilty to each of the following charges on file 20003893:

Between 27 December 1999 and 29 December 1999 at Nguiu in the Northern Territory of Australia

1. unlawfully entered a building, namely, MCS Girls School Nguiu with intent to commit therein a crime, namely, stealing

Sentence: 14 days imprisonment (aggregate with the sentence imposed on Count 1 on file 9918555 and Counts 2, 3, 5 and 7 on file 20003893) and 120 hours community service.

Between 27 December 1999 and 29 December 1999, at Nguiu in the Northern Territory of Australia

2. unlawfully damaged property, namely being articles for school use, interconnecting doors to different classrooms, graffiti in rooms and on walls and the letting of all fire extinguishers in the building, being the property of MCS Girls School Nguiu

and that the said unlawful damage involved the following circumstances of aggravation:

(i) That the loss (caused) by such damage was greater than $500, namely $2000.

Sentence: 14 days imprisonment (aggregate with the sentence imposed on Count 1 on file 9918555 and Counts 1, 3, 5 and 7 on file 20003893) and 120 hours community service.

Between 27 December 1999 and 29 December 1999, at Nguiu in the Northern Territory of Australia

3. did steal a Panasonic tape player ID MCS 6/7, valued at $50, the property of MCS Girls School Nguiu.

Sentence: 14 days imprisonment (aggregate with the sentences imposed on Count 1 on file 9918555 and Counts 1, 2, 5 and 7 on file 20003893).

Between 17 December 1999 and 27 December 1999, at Nguiu in the Northern Territory of Australia

5. unlawfully entered a building, namely, Lot 594 Nguiu with intent to commit therein a crime, namely, stealing.

Sentence: 14 days imprisonment (aggregate with the sentences imposed on Count 1 on file 9918555 and Counts 1, 2, 3 and 7 on file 20003893) and 120 hours community service.

Between 17 December 1999 and 27 December 1999, at Nguiu in the Northern Territory of Australia

7. did steal a Sony stereo system SN 3358246, food items and other assorted items valued at $1000 being the property of Chris Toombe.

Sentence: 14 days imprisonment (aggregate with the sentences imposed on Count 1 on file 9918555 and Counts 1, 2, 3 and 5 on file 20003893) and 80 hours community service.

On 28 January 2000, at Nguiu in the Northern Territory of Australia

and that the said unlawful assault involved the following circumstance of aggravation:

(i) that the said Donna Vigona was a female and the said Ignatius Narjic was a male.

(ii) that the said Donna Vigona suffered bodily harm.

Sentence: one month imprisonment (cumulative on Counts 1 on file 9918555 and Counts 1, 2, 3, 5 and 7 on file 20003893) suspended after the appellant served the 14 days upon his entering into a recognisance to be of good behaviour for a period of 12 months.

[4] The learned stipendiary magistrate summarised the sentences he had imposed when he advised the appellant as follows (t/p 20):

"The effect of all of that is that you do 14 days. You'll be released next Wednesday, you go back to Bathurst Island, you'll do 480 hours community service. I think you'll do 4 hours a day, which will take you 120 days, close to 6 months. Plus you've one month gaol, suspended, hanging over your head for the assault and you've got to stay out of trouble for the next 12 months. ..."

[5] A summary of the facts in respect of the charges, being Counts 1, 2 and 3 on file 20003893 are as follows:

[6] Between 27 and 29 December 2000, the appellant in company with some other young men, entered the MCS Girls School in Nguiu. They entered the school by removing louvres from the side of a classroom. The appellant and his companions went through the building, making a mess by throwing articles around. They kicked their way through inter-connecting doors into different classrooms. They sprayed graffiti in the rooms and on the walls of rooms. There were some swear words on the walls and a symbol which is associated with this group. The group let off all the fire extinguishers in the building. The appellant took a Panasonic tape player from one of the rooms in the school. Damage was caused to the value of $2000 and a tape player was taken. On 31 January the tape player was recovered from the appellant's residence.

[7] With respect to Counts 5 and 7 the facts found to support the finding that the offences were proved are as follows:

[8] Between 17 December and 27 December 1999, the appellant entered the premises at Lot 594 in Nguiu community. These premises were the residence of two school teachers, Mr Toombe and Ms Steele. The appellant entered the premises by smashing louvres and a toilet window. The appellant climbed through the window, opened a door and let several other young men into the residence.

[9] The appellant and his companions ate some food they found in the dwelling. The appellant took the stereo system and some other items with him. There was a large quantity of material removed. The appellant only benefited to the extent of the stereo and the food he ate and some smaller items, but it was not possible for the prosecution to specify which of the other young men took which items. On 31 January 2000, the stereo was recovered from the appellant's residence and he acknowledged this was the one taken from the teachers' house.

[10] With respect to Count 9, the agreed facts before the learned stipendiary magistrate are as follows:

[11] On Friday 28 January 2000, at about 8.00 pm, the appellant was drinking at the Nguiu Club. Also drinking there was Ms Donna Vigona, the victim in this matter. They left the club at the same time which was about 8.00 pm. The victim went to her sister's house. She left there within an hour. As she was walking away from her sister's house, the appellant approached her and they argued. The appellant punched the victim's head. The victim fell to the ground. The appellant kicked the victim while she was on the ground. The victim attended the clinic. She was treated for a split to her forehead above the right eyebrow. The victim was evacuated to Royal Darwin Hospital for x-rays and observation. She remained at Royal Darwin Hospital overnight, while she was there 15 stitches were inserted in the wound in her forehead. She suffered bruising to her body. She was released from hospital the next day and was given some pain killers to take. The appellant was spoken to about this matter and said that he was angry about a problem between himself and the victim.

[12] The grounds of appeal as set out in the notice of appeal dated 19 December 2000, are as follows:

"1. The learned Magistrate erred in finding that a plea of guilty was entered at the last moment and, in doing so, failed to discount sufficiently the sentence;

1. The learned Magistrate erred in elevating the seriousness of the offences to a level not commensurate with the quality of the acts;
2. The learned Magistrate erred in failing to pay sufficient regard to the appellant's lack of recent criminal antecedents or, in the alternative, attached undue weight to a previous criminal history that was largely stale;
3. The learned Magistrate erred in paying insufficient regard to the appellant's attempts to make restitution;
4. The learned Magistrate erred in paying insufficient regard to the appellant's present circumstances;
5. The sentence on count 1 on file number 20013547 was manifestly excessive having regard to the objective seriousness of the offence and, the learned Magistrate's finding that the offence did not warrant a sentence of imprisonment.
6. The learned Magistrate erred in failing to give sufficient weight to the principle of totality.
7. The ordering of community service in addition to a sentence of imprisonment was excessive in the circumstances of this case."

[13] In the appellant's written outline of submissions, counsel for the appellant Mr Johns stated that the grounds of appeal in the appellant's notice of appeal dated 19 December 2000 can be rationalised into two broad grounds:

1. The learned magistrate erred in failing to give sufficient weight to the mitigating circumstances of the appellant leading him to impose an excessive sentence on charges 1, 2, 5 and 7.

2. The learned magistrate erred in his application of the totality principle.

[14] The appellant has also made application pursuant to s 165 of the Justices Act 1928 (NT) for the court to dispense with the requirement that the notice of appeal be lodged within one month of the date of conviction.

[15] The appellant was convicted and sentenced for these offences on 3 November 2000. The notice of appeal is dated 19 December 2000 which is outside the one month time limit stipulated under s 171(2) of the Justices Act for the filing of a notice of appeal.

[16] I accept that on 3 November 2000 the appellant instructed his solicitor to lodge an appeal against sentence. These instructions were given on the understanding that the lodgement of an appeal on the appellant's behalf was contingent upon a favourable review of the merits of the appeal by the senior counsel (crime) at the North Australian Aboriginal Legal Aid Service. This advice was not provided until 6 December 2000, three days outside the time period for filing a notice of appeal. The notice of appeal was filed on 19 December 2000. I also accept that the appellant resides at Nguiu that he did not have a telephone and did not have easy access to his lawyers. There is no suggestion that the delay in filing a notice of appeal has resulted in prejudice to the respondent.

[17] Section 165 of the Justices Act provides as follows:

"165. Power of Supreme Court to dispense with conditions precedent to appeal where compliance impracticable

The Supreme Court may dispense with compliance with any condition precedent to the right of appeal, as prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with this Act."

[18] I am of the opinion the appellant has done whatever is reasonably practicable to comply with the provisions of s 171(2) of the Act - see Nottle v Trenerry [1993] NTSC 47; (1993) 89 NTR 7.

[19] Accordingly, I make an order dispensing with the requirements of s 171(2) of the Justices Act.

[20] I proceed to deal with the two grounds of appeal as argued by Mr Johns, counsel for the appellant:

The learned magistrate erred in failing to give sufficient weight to the mitigating circumstances of the appellant leading him to impose an excessive sentence on charges 1, 2, 5 and 7.

[21] The principles to be applied in considering whether a sentence is manifestly excessive have been set out in R v Raggett (1990) 50 A Crim R 41 at 46 and R v Tait (1979) 46 FLR 386 at 388.

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in 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 sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v The King; R v Withers; Whittaker v The King; Griffiths v The Queen."

[22] In his remarks on sentence the learned stipendiary magistrate acknowledged that he was dealing with a young man 20 years of age. His Worship stated (t/p 18):

"... I'm dealing with a young man who at best indication seems to be, that since he got involved this year, that is, since the commission of the assault on 28 January 2000, since he continued his involvement with the criminal justice system this year, when the matters started to get before the court, he seems to have stayed out of trouble.

So I'm dealing with a young man who, once the matters started to slowly get rolling in court, he stayed out of trouble. And I say 'slowly get rolling' because they were not resolved quickly, they were adjourned. Set for hearing, didn't proceed as a hearing, and he eventually pleaded guilty.

So I've um'd and ah'd about this. Part of me thinks he's got to go to gaol and part of me thinks well yes, while he's got to go to gaol he's young and there's at least a demonstration this year, since he was apprehended by police, that he's stayed out of trouble. So the approach that I take is this; he's pleaded guilty, he hasn't pleaded guilty at the outset, he's not entitled to that substantial leniency (inaudible) 25 percent that a person gets when they plead guilty at the outset."

[23] These remarks clearly indicate the learned stipendiary magistrate had regard to the youth of the appellant, his plea of guilty and his prospects of rehabilitation.

[24] The learned stipendiary magistrate then continued and noted that the appellant was entitled to leniency as a first offender. He noted the appellant had no prior convictions. His Worship then took into account, as was appropriate for him to do, that the offences committed in December 1999 and January 2000 were committed whilst the appellant was on bail for the offence committed on 14 August 1999.

[25] With respect to Count 1 on file 9918555 the appellant was sentenced to the mandatory minimum sentence of 14 days imprisonment and ordered to undertake 40 hours community service. The maximum penalty for this offence under the provision of s 251(2)(c) of the Criminal Code 1983 (NT) is seven years imprisonment, subject to s 122 of the Sentencing Act 1995 (NT).

[26] The learned stipendiary magistrate indicated that he regarded the offence of unlawful entry, unlawful damage and stealing from the school being Counts 1, 2 and 3 on file 20003893 as serious matters because it involved damage to community resources and a deterrent sentence was called for.

[27] The third set of offences being Counts 5 and 7 on file 20003893 occurred between 17 December and 27 December 1999. The facts in support of those charges are serious because it involved unlawful entry into a private residence and stealing a substantial amount of property.

[28] With respect to the three separate sets of offences, the appellant was sentenced to 14 days imprisonment and ordered to perform 480 hours community service work.

[29] The appellant complains that this is the maximum number of hours community service work the learned stipendiary magistrate could order. However, I consider it relevant to note that the maximum penalty pursuant to the Criminal Code was as follows:

File 9918555 Count 1 seven years imprisonment s 251(2)(c)

File 20003893 Count 1 seven years imprisonment s 213(4)

These maximum penalties are subject to s 122 Sentencing Act.

[30] It is the submission by Mr Johns on behalf of the appellant that a sentence of 14 days imprisonment together with 480 hours community service is excessive. Mr John's describes the 480 hours community service orders as follows:

"To impose a further 6 months where his liberty will be restricted to a degree is not a balanced sentence when one considers the nature of the offending and the personal circumstances of the appellant."

[31] I do not agree with this submission. The offences committed in December 1999 were serious and were committed while the appellant was on bail for an offence committed in August 1999.

[32] The learned stipendiary magistrate did give every consideration to the personal circumstances of the appellant when he stated (t/p 19):

".... I'm told that since the assault he has been remorseful and he regrets his behaviour. And I think there's probably some justification to that comment, in view of the fact that it appears that he has stayed out of trouble since the end of January 2000.

The approach I take is primarily rehabilitative. I'm concentrating more on his age and/or his youth. I consider that a gaol term is justified for the assault. I consider that a gaol term is justified for the property offences committed whilst on bail and even if they weren't committed whilst on bail, the gaol term is justified for that rampage through the school, where the damage was concerned.

However, I think there has to be a balancing process. I have to take into account his youth and I think at the end of the day take into account the fact that it appears that he's stayed out of trouble since the end of January 2000. He's to already do the minimum 14 days for the property offences. To order community service on tope of the 14 days and also to impose a gaol term for the assault, which will be suspended."

[33] The learned stipendiary magistrate indicated he considered a longer period of imprisonment for the property offences was justified but reflected that it would be better for the defendant and for the community if the defendant returned to Nguiu and carried out community service for the community. His Worship calculated that the hours imposed amount to 120 days of work at four hours a day and that this would be "repaying the community for the time, trouble and damage the appellant had caused in relation to the unlawful entries, stealings and .... or the unlawful entries and damage in December last year."

[34] I am not persuaded that the learned stipendiary magistrate has been shown to be in error such that this Court would interfere with the sentence imposed.

[35] Neither do I consider that even though no error has been demonstrated that the sentence itself can be said on the face of it to be manifestly excessive.

[36] I would dismiss this ground of appeal

The learned magistrate erred in his application of the totality principle.

[37] The principle of totality was discussed by the Justices of the High Court in Mill v the Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 - 63:

" The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when .... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

[38] I accept the submission made by Mr Johns on behalf of the appellant, that it is generally accepted that when a number of offences arise out of substantially the same act, circumstances or series of occurrences the presumption of concurrency should be permitted to run its course (Brown v Lynch (1982) 5 A Crim R 404; The Queen v Scanlon [1987] NTCCA 8; (1987) 89 FLR 77).

[39] Counts 1, 2 and 3 on file 20003893 were in respect of the one criminal transaction. Counts 5 and 7 on file 20003893 were unrelated to the earlier counts but formed part of another criminal enterprise also committed during December 1999. With respect to all these offences and the offence of unlawful damage committed in August 1999, the appellant was sentenced to an aggregate 14 days imprisonment. The principle of concurrency was applied with respect to three separate sets of offending.

[40] I agree that the principles of totality and proportionality applies with respect to the imposition of a community service order as it does to any other form of sentencing.

[41] A reading of the learned stipendiary magistrate's reasons for sentence indicate he was balancing the alternative of a longer prison sentence with the imposition of community service orders and decided on the latter. This was a sentencing option that was open to the learned stipendiary magistrate. I have already noted the maximum penalty that was applicable in the circumstances. Whilst the imposition of 480 hours community service work is the maximum number of hours community service work that can be imposed, it is well below the maximum penalty that can be imposed.

[42] I am not persuaded that in proceeding as he did the learned stipendiary magistrate failed to have regard to the principle of totality. I note also that the learned stipendiary magistrate declined to make any orders for restitution. It is clear from his reasons that he considered a deterrent sentence should be imposed for the property offences and that by undertaking community service work the appellant could repay the community for the loss and damage the defendant had caused to a community resource.

[43] I consider his Worship did balance the seriousness of the offending with the personal circumstances of the appellant. I consider the learned stipendiary magistrate did have regard to the principle of totality in that he made the 14 day sentence of imprisonment concurrent and decided not to impose any further period of imprisonment but rather to make orders for community service work. I do not consider this ground of appeal has been made out.

[44] The grounds of appeal do not address Count 9 on file 20003893 so I have not included that matter in my consideration of this appeal. It is however, appropriate to note that it was a serious offence and the sentence of one month imprisonment wholly suspended on a condition to be of good behaviour for a period of 12 months was a sentence within the learned stipendiary magistrate's sentencing discretion. It was also taken into account by the learned stipendiary magistrate when he considered the principle of totality.

[45] For the reasons given I would dismiss this appeal.