Oldfield v Chute [1992] NTSC 35; 107 FLR 413 - NTSC 1992 case summary — Zoe

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Oldfield v Chute [1992] NTSC 35; 107 FLR 413

[1992] NTSC 35

Supreme Court of the NT|1992-06-10|Before: Forster J, Asche CJ, Mildren J

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At a glance

Source facts

Court

Supreme Court of the NT

Decision date

1992-06-10

Before

Forster J, Asche CJ, Mildren J

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

Oldfield v Chute [1992] NTSC 35; 107 FLR 413 (10 June 1992)

[2]

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MILDREN J CWDS Criminal law and procedure - Particular offences

Driving offences - Driving whilst disqualified - Prison term not mandatory unless exceptional circumstances - Sentencing discretion of magistrates - Factors to be considered - Home detention an option. Traffic Act 1987 (NT),s31. Criminal Law (Conditional Release of Offenders) Act 1971 (NT),s19A. Daniels v Nichol (unreported, 13/8/76, Forster J), referred to. Pryce v Foster [1986] NTSC 10; (1986) 38 NTR 23 at 28, referred to. Seears v McNulty (1987) 28 A Crim R 121 at 131, referred to. Smith v Torney (1984) 29 NTR 31 at 36, referred to. Criminal law and procedure - Jurisdiction practice and procedure - Judgment and punishment - Driving whilst disqualified - Prison term not mandatory in the absence of any valid reason or justified excuse - Sentencing discretion of magistrates not circumscribed - Factors and matters to be considered in sentencing - Sentencing options widened by legislation. Traffic Act 1987 (NT),s31. Criminal Law (Conditional Release of Offenders) Act 19?? (NT),s19A. Daniels v Nichol (unreported, Forster J, 13/8/76), referred to. Pryce v Foster ; at 28, referred to. Seears v McNulty at 131, referred to. Smith v Torney at 36, referred to. Criminal law and procedure - Jurisdiction practice and procedure - Judgment and punishment - Sentencing - Where court is dealing with two offences which occurred on different dates, the circumstances of each offence must be considered separately

On 28 February 1992, the appellant was driving another vehicle east along Wills Terrace, Alice Springs. He turned right into Leichhardt Terrace and was again stopped by police for the purpose of a random breath test. When asked his name by police, he gave a false name. The roadside test being positive, he was again conveyed to Alice Springs Police Station where he underwent breath analysis which gave a reading of .208. When asked why he gave a false name, he said 'My memory is mad.' He was again arrested and charged with exceed .08, contrary to s19(2) of the Traffic Act, and failing to give his name and address when required to do so by a police officer contrary to reg142 of the Traffic Regulations. It is not clear whether he was bailed on this occasion or not.
The appellant appeared in the Alice Springs Court of Summary Jurisdiction on 2 March. He was represented by counsel. He pleaded guilty to all charges. His record of prior convictions shows that on 11 November 1991 he was convicted of exceed .08 and driving whilst unlicensed, which resulted in fines being imposed and he was disqualified from holding or obtaining a driver's licence for eight months. He had also been convicted on 8 November 1990 of driving whilst unlicensed and driving an unregistered and uninsured motor vehicle for which he received a total of thirty hours community service. He also had a prior conviction for stealing in September 1988, but that conviction has no relevance.
The learned magistrate imposed the following sentences: (1) For the offences on 25 February 1992: (a) A fine of $400, and a licence disqualification of eighteen months for refusal to provide a sufficient sample of breath. (b) Imprisonment for two months for drive disqualified, and a licence disqualification for eighteen months. (2) For the offences on 28 February 1992: (a) Imprisonment for two months for the exceed .08 offence and a licence disqualification of thirty months. This sentence was made concurrent with the sentence imposed as set out in para (1)(b) above. (b) Imprisonment for four months for driving whilst disqualified, and a licence disqualification of thirty months. This sentence of imprisonment (but not the licence disqualification) was made cumulative upon the other sentences. (c) For failing to give his name and address, he was fined $200.
The appellant appeals to this Court against the two sentences of imprisonment set out in paras (1)(b) and 2(b) above only. The grounds of appeal are identical in each case and are as follows: "(1) That the learned Magistrate erred in law in treating a charge of driving whilst disqualified finalised on 2nd March 1992 before him as being a prior conviction; (2) That the learned Magistrate erred in law in failing to take into account the sentencing principle of totality and thus the aggregate period of imprisonment is manifestly excessive. (3) That the learned Magistrate failed to give due weight to the appellant's youth and record;"

The only submission advanced by counsel for the appellant directed to the sentence of two months' imprisonment for driving whilst disqualified on 25 February 1992 was that it was excessive having regard to the appellant's youth and prior record. The same submission was advanced in relation to the sentence of four months for driving whilst disqualified on 28 February 1992. I have already referred to the appellant's prior record of convictions. It is noteworthy that he had a prior conviction for exceed .08, and two prior convictions for driving whilst unlicensed, as well as other traffic offences. There is nothing in that record to indicate that the appellant was entitled to any leniency. As to the appellant's age, the appellant was eighteen years of age at the time of the offences. He is married with one child. He attended school at Yuendumu to grade 8. He is not very literate and his English is difficult to understand. He lived in town so that he could be near his aged grandfather who is living at Hettie Perkins Nursing Home. It was not clear whether he was employed. His counsel told the learned magistrate only that "He's a young person who is trying to hold down a job and live that sort of life where he can be employed." It is apparent also that the appellant is a member of the Aboriginal race, although no submissions of any kind were directed to the learned magistrate that he was to show any leniency on that account. 7. The circumstances of each offence was explained by his counsel to the learned magistrate briefly. In relation to the offences on 25 February, it was submitted that he was given the job of driving because all of the other occupants in the vehicle were drunk. As to the driving on 28 February, he was apparently sent to get a driver for the "night patrol" because the driver who turned up to do that job had arrived drunk. 8. The learned magistrate's remarks on sentence were very brief. Apart from saying that he took into account what had been put to him, his Worship's only comment was that "the Supreme Court had been quite clear in what should happen when one drives disqualified, and in the absence of any valid reason or justified excuse, there should be a prison term." No doubt his Worship had in mind the decision of this Court in Daniels v Nichol (unreported, 13/8/76, per Forster J) where his Honour said: "... for the offence of driving whilst disqualified from holding a driving licence imprisonment is the appropriate penalty save in exceptional circumstances ... Such driving is a serious contempt of the court and I am quite unable to say that a sentence of three months is manifestly excessive." 9. In Smith v Torney (1984) 29 NTR 31 at 36, Muirhead J observed that "the only practical method of obtaining maximum compliance with such orders is to ensure that those subject to such orders understand that the consequences of a breach will almost inevitably be grave, and imprisonment must, in this regard, be the general sanction." Nevertheless, as his Honour also observed at 36: "There is a danger of injustice if an individual is treated as one of a class of offenders, it is necessary that each person be sentenced as an individual. Every sentence must be determined on its own facts." 10. Since then, the consistent policy of this Court has been to treat this offence as a serious one. As Rice J observed in Pryce v Foster [1986] NTSC 10; (1986) 38 NTR 23 at 28: "These cases all go to show the constant attitude adopted by this Court in relation to an offence of this nature and to indicate that unless exceptional circumstances exist, a term of imprisonment is almost inevitable." 11. However, it must be emphasised that these decisions are not to be understood as requiring a term of imprisonment unless exceptional circumstances exist. As O'Leary CJ observed in Seears v McNulty (1987) 28 A Crim R 121 at 131: "These various dicta, and doubtless, others that are to be found in the many cases that have come to this Court from decisions of magistrates, provide a useful and important guide to the attitude we think it appropriate to adopt towards the offence of driving whilst disqualified. But I think it is important that they be regarded as no more than that. In particular, I do not think that what was said by Forster J in Daniels v Foster should be regarded as circumscribing a magistrate's (or a judge's) sentencing discretion, so that unless "exceptional circumstances" exist (whatever precisely is encompassed within that expression) a sentence of imprisonment must be imposed. Nor do I think Forster J intended such a construction to be given to his words. In my view, the proper approach to sentencing for the offence of driving whilst disqualified is that stated by Muirhead J in Smith v Torney at 36-7, set out above, and with which I respectfully agree." 12. In particular, I would not wish it to be thought that there must, as the learned magistrate put it, be a prison term "in the absence of any valid reason or justified excuse." Although not a specific ground of appeal, that is an incorrect statement of the law. The sentencing discretion of magistrates not to impose a sentence of actual imprisonment goes beyond such matters. One matter worthy of consideration, may be the age of the offender. Another may be the lapse of time which has passed between the disqualification and the subsequent driving. As Muirhead J observed in Smith v Torney at 37: "The sentencing magistrate has many aspects to consider, including the lapse of time between disqualification and the subsequent driving, the circumstances under which the defendant drove and of course his general character." 13. In an appropriate case, it may be relevant, if the accused is an Aboriginal, to bear in mind that leniency is often extended to those who come from a deprived section of the community (see R v Minor (1992) 79 NTR 1 at 12). There may well be other relevant factors warranting the imposition of a sentence other than a sentence of actual imprisonment. It must also be borne in mind that since the decisions to which I have referred above, the Criminal Law (Conditional Release of Offenders) Act has been amended to add to the court's armoury the possibility of a home detention order pursuant to s19A of the Act. An order made under that section involves a suspended sentence of imprisonment as well as substantial interference with an offender's liberty and freedom of movement. But it has the advantage, firstly, of being cheaper, so far as the Territory is concerned, than imprisonment, and secondly, of permitting those in work to remain in employment. It is an option, which in my opinion, should not be overlooked, particularly in cases of first offences against s31(1) of the Act. 14. Having said all of that, I am not satisfied that a sentence of two months' imprisonment was not appropriate in this case for the first of the two offences of driving whilst disqualified. The reason for driving the vehicle was not such as to warrant any leniency. The offence was committed very shortly after his disqualification. Although there was nothing unusual in the manner of his driving observed, the appellant was plainly affected by liquor. Although only eighteen years of age, he had several prior convictions for traffic offences, including one of exceed .08, which demonstrated that he was not only not entitled to the same leniency as one with a less significant record, but that he had a continuing attitude of disobedience to the law. In view of his circumstances, a home detention order was not a possibility. Some leniency might have been possible if more had been known about his Aboriginal background, but no submissions were put to the magistrate along those lines. In these circumstances I am unable to say that the sentence imposed was other than a proper one. 15. The appellant's main submissions related to the penalty for the offence committed on 28 February 1992. The appellant's first argument was that the learned magistrate erred in treating this offence as a subsequent conviction to the offence committed on 25 February 1992. I was referred to a number of decisions including Farrington v Thomson and Bridgland [1959] VicRp 49; (1959) VR 286; R v Miller (1986) 2 Qd R 518; Gallagher v McKinlay (unreported, Asche CJ, 27/11/87, SC of NT); and Jagamara v Hayman (unreported, Angel J, 26/9/91, SC of NT). With the exception of Jagamara v Hayman all of the other cases turned upon the interpretation to be given to statutory provisions which specifically provided for a higher penalty where there was a second or subsequent conviction. In my opinion these authorities are distinguishable because s31(1) of the Traffic Act provides for a single maximum penalty whether or not the appellant has had a prior conviction for that offence. Further, it does not appear that the learned magistrate did in fact treat the offence on 28 February as a subsequent conviction to the offence committed on 25 February 1992. True it is that his Worship imposed a more severe penalty for the offence committed on 28 February, but this offence occurred whilst the appellant was on bail and it is well established that that is an aggravating circumstance: see R v Gray [1977] VicRp 27; (1977) VR 225 at 229-30. In my opinion, the offence which took place on 25 February, and for which the appellant had been arrested, was not irrelevant to a consideration of penalty in relation to the offence of 28 February. The fact that the appellant committed the same offence three days after he had been arrested and bailed for that offence suggests that he had small regard for the law and little intention of obeying its commands. 16. Nevertheless, it is pertinent to observe, as Asche CJ pointed out in Gallagher v McKinlay at 5, that the usual approach where a person is being dealt with for more than one offence is to treat each of those offences as a first offence (assuming there are no prior convictions for that offence) because the accused may not have been warned of the severity of punishment which might be visited upon him by his conduct if it continued, after the initial offence. To some extent this consideration does not have quite the same force in relation to offences against s31(1) of the Traffic Act because it is the uniform custom of magistrates in this Territory to warn persons, at the time an order is made suspending their licences, that if they are convicted of an offence against s31(1) of the Act, they could go to prison. Be that as it may, a magistrate is not bound to impose the same penalty in relation to each offence when he is dealing with two offences against s31(1) which happened on different dates, although that may often be the correct manner of disposition. The circumstances of each offence have to be considered separately, and if the second offence is more serious than the first, or vice versa, a different penalty may be warranted. Even less is he bound to do so where the second offence occurred whilst the accused was on bail after being arrested for the first offence. 17. The final argument was that the learned magistrate imposed total sentences which were excessive having regard to the totality principle. It is important to remember that the magistrate was not merely dealing with two breaches of s31(1) of the Act. He also had three other offences to deal with. The penalties imposed for breaches of s31(1) therefore cannot be considered in isolation. It is necessary to take into account in this case that the learned magistrate also imposed a sentence of imprisonment for two months for exceed .08 which he made concurrent with the penalty for drive disqualified on 25 February, as well as imposed fines and a lengthy period of licence disqualification. The question is whether viewed as a whole, the total sentences were not just or appropriate: see Henry v R (CCA, unreported, 11/4/91 at 15). In my opinion the total sentences, which resulted in imprisonment for six months, fines totally $600 and a licence disqualification of thirty months is excessive and cannot stand. In my opinion a total sentence of imprisonment no more than four months' was warranted in all the circumstances. The appeal is therefore allowed in relation to the second breach of s31(1) of the Act, and the sentence of four month's imprisonment cumulative upon the other sentences is vacated. In lieu thereof the appellant is sentenced to four months' imprisonment concurrent with the other sentences of imprisonment imposed by the learned magistrate. The fines and licence disqualification were not the subject of appeal and therefore stand. The appeal in relation to the breach of s31(1) on 25 February 1992 is dismissed.