Parmbuk v Garner [1999] NTSC 108

aggravated unlawful use of a motor vehicle (the circumstance of

aggravation being the damage caused was to the value of $14,183.40)

driving a motor vehicle on a public street whilst not being the holder of

a licence to do so [s.32(1)(a)(1) of the Traffic Act];

driving a motor vehicle at a speed and in a manner dangerous to the

public [s.30(1) at the Traffic Act];

being the driver of a motor vehicle, failed to stop the said vehicle when

required to by a police officer [s.65(1) of the Motor Vehicles Act];

aggravated criminal damage (the circumstance of aggravation being that

the loss caused by such damage was approximately $5,000) [s.251 of

dangerous act � driving a vehicle head on towards a poli ce vehicle at

speed on a narrow dirt road causing the police vehicle to take evasive

action and causing serious actual danger to the lives of the public

With respect to the offences referred to in para.[2] (a), (b), (c), (e ) and (f)

the learned Chief Magistrate imposed an aggregate sentence of twelve

months "imprisonment" (as to which see later) backdated to 14 May 1999.

It was ordered that the sentence of imprisonment be suspended after six

months subject to the condition that the appellant submit to the supervision

of the Department of Correctional Services for a period of 18 months (from

7 July 1999). With respect to the offence referred to in para.[2](d) the

learned Chief Magistrate recorded a conviction but imposed no further

The circumstances of the offences were summarized by the prosecution and

agreed on behalf of the appellant in the following form:

"Sir, the facts are that in the early hours of Tuesday 4 May this year

the defendant had an argument with his girlfriend and in an agitated

state he went to Top Camp. The defendant attended the residence for

Bonifus Perjic(?) and approached the Port Keats stores white Toyota

Landcruiser ute which was parked in the yard. The registration

The defendant then entered the vehicle and using a spare key he

started the engine and drove off with the vehicle. The defendant then

drove the vehicle around the community at great speed making

donuts and skids at various locations around the community. The

defendant then drove to the Port Keats Club and picked up a co -

The defendant then drove with the co-offender seated in the front

passenger seat and while the vehicle was driven around the

community the co-offender seated on the passenger window ledge

hanging out of the window used a metal wheel brace to belt the

panels of the passenger side door and make a loud noise.

As the defendant drove the stolen vehicle around the community the

co-offender continually belted the door panel while he cheered and

yelled loudly causing the majority of the community to come outside

of their houses and watch and cheer the defendants driving.

As police followed the vehicle around the community the vehicle

increased its speed to the extent where police had to stop following

the vehicle due to the residents safety. The defendant continued

doing donuts causing clouds of dust and young children running

around the road following the defendants driving causing police to

At this stage police were considering getting a firearm and forcing

the vehicle out of Port Keats and shooting out one of the tyres to stop

the defendants vehicle due to the extreme danger to the public and

The vehicle was stopped on the roadway at Port Keats near the

Dumoo houses. Police approached the stolen vehicle in a police

vehicle. Without warning the stolen vehicle reversed toward the

police vehicle and collided with the bullbar of the police vehicle.

At one stage the defendant drove the vehicle over several metre high

concrete pillars in between the old clinic and staff house at speed

causing extensive damage to the vehicles undercarriage. The stolen

vehicle then drove off at high speed between houses narrowly

Police were continuing to follow the defendants vehicle, warning the

public to stay clear of the roads. The police vehicle followed at a

safe distance when the driver of the st olen vehicle failed to negotiate

a corner and ran head on in to a 6 foot chain mesh fence. The police

vehicle again was driven up to the rear of the stolen vehicle.

The police vehicle was stopped to the rear and left of the stolen

vehicle with their blue lights activated and the siren sounding. When

police were alighting from the police vehicle the stolen vehicle,

without warning, was reversed at speed side swiping the drivers side

The value of damage is estimated at $5,000. The police vehicle had

to be sent to Darwin immediately due to problems with its steering as

a result of the collision. And sir, that left the police at Port Keats

The stolen vehicle was then driven off at speed, failing to stop. A

short time later police were driving their police vehicle down a track

near the dump. The stolen vehicle was driven towards the police

vehicle at speed. To avoid a head on collision the police vehicle was

When the stolen vehicle continued to drive directly at the front of the

police vehicle, the police vehicle was reversed off the roadway in to

the scrub. The stolen vehicle narrowly missed the front of the police

vehicle, causing officers to fear for their lives, and continued to drive

During the morning the defendant continually drove in to the football

oval and at high speeds proceeded to do donuts and drove off when

police approached them. At 7.30am after driving around the

community for 3 � hours the defendant abandoned the vehicle a the

barge landing in Port Keats due to the engine being seized. The

offenders then swam across the creek and in to the scrub.

Later in the morning the defendant was brought to the Port Keats

Police Station by concerned family members where he was arrested.

Later in the afternoon the defendant took part in a record of

interview and made full admissions to the offences. When asked his

reason for unlawfully using the vehicle he replied: ,,I had an

argument with a girlfriend. When asked why he did not stop when

called upon he replied: ,,I was angry. When asked why he drove at

speed head on towards the police vehicle he replied: ,,To have an

The defendant was charged and refused bail. At no time did the

defendant have any permission to steal or damage any of the property

mentioned and at the time of the offences the streets of Port Keats

were public streets and the defendant does not hold a drivers

licence. And, sir, the defendant has been in custody since 4 May".

The appellants criminal record was tendered by the prosecution. In addition

to several offences of dishonesty, this disclosed that the appellant had been

found guilty of the following similar offe nces on the dates indicated:

The appellant had previously received sentences of release on a good

behavior bond, community service orders, fines and detention in a juvenile

detention centre for periods ranging from 14 days to 6 months.

The learned Chief Magistrate in sentencing the appellant had the benefit of a

pre-sentence report. In his reasons for sentence, the learned Chief

Magistrate stressed the very serious nature of the offences committed by the

appellant during the incident of 4 May 1999. His Worship emphasized that

the incident had extended over several hours, members of the appellants

community and police officers had been put at risk and damage of around

$20,000 had been caused. The learned Chief Magistrate expressed doubts as

to the sincerity of the appellants remorse having regard to his record of

similar offences involving motor vehicles and comment in the pre -sentence

report that the appellant was worried about the prospect of receiving

traditional punishment from his family and members of his community. His

Worship indicated that the appellants case was one calling for an element

of general deterrence. After referring to the need to promote the appellants

vocational opportunities, in particular by encouraging the appellant to

improve his English language ability by taking advantage of educational

opportunities in Don Dale Detention Centre, His Worship explained that the

appellants sentence would be a combination of "imprisonment" followed by

a period of supervision while subject to a partly suspended sentence.

The appellant was born on 10 October 1982. Accordingly, his seventeenth

birthday was to occur some five months after the date fixed for the

commencement of his sentence (14 May 1999). In referring to "the time that

you will spend in Don Dale" it seems clear enough that the learned Chief

Magistrate intended to sentence the appellant to a term of detention rather

than "imprisonment". In the course of submissions at the appeal, this Court

was informed that the appellant in fact had remained at Don Dale Detention

Centre until his seventeenth birthday (10 October 1999) and was then

Ms Little on behalf of the appellant relied on the following appeal grounds:

that the learned Magistrate placed undue weight on the prosecutors

that the learned Magistrate paid insufficient regard to the social and

that the learned Magistrate place undue emphasis on retribution and

general deterrence and accordingly placed insufficient weight on the

in all the circumstances the sentence was so manifestly excessive as

(following a grant of leave to add an additional ground of appeal) the

sentencing the appellant to an aggregate sentence; and

sentencing the appellant to an aggregate sentence which

included two property offences which cannot be served

concurrently with sentences of detention or imprisonment for

In addition a number of other grounds of appeal were referred to but were

either not pressed or are such that it is not necessary to refer to them for

It is convenient to turn first to the additional ground of appeal (para. [9](e)

above) concerning the learned Chief Magistrates imposition of an aggregate

sentence for five of the appellants offences. Ms Whitbread, counsel for the

respondent, immediately conceded that his His Worship was in error in

Two of the appellants offences (aggravated unlawful use of a motor vehicle

and aggravated criminal damage) were "property offences" within the

meaning of the Juvenile Justice Act and, accordingly, subject to the

provisions of Division 3 of Part VI of the Act dealing with repeat property

offenders. The appellant was a juvenile who had previously been dealt with

by the Juvenile Court for one or more property offences and was liable to

serve a period of not less than 28 days detention for the two new property

offences pursuant to sub-section (6) of section 53AE. Sub-section (9) of

"(9) The mandatory period of a period of detention imposed under

subsection ...(6) is not to be served concurrently with either of the

(a) a period of detention for another offence that is not a property

offence regardless of when the sentence for the other offence was

It follows from these provisions that the learned Chief Magistrate was in

error in imposing an aggregate sentence with respect to the appellants two

new property offences and the three other offences of driving unlicensed,

driving at a speed and in a manner dangerous to the public and dangerous

Aside from the specific provisions dealing with property offences (one

effect of which is to prohibit imposition of an aggregate sentence covering

property and non-property offences), the Juvenile Justice Act contains no

specific provision for the imposition of aggregate sentences (cf s.52 of the

Sentencing Act and see Bynder v Gokel [1998] NTSC 110; (1998) 8 NTLR 91 at 102).

Accordingly, the learned Chief Magistrate was also in error in imposing an

aggregate sentence with respect to the three non-property offences of the

It follows from the above that it is necessary, as a minimum, to re-structure

the appellants sentence to accord with the provisions of the Juvenile Justice

Act. Of course, it does not necessarily follow that any re -structuring of the

appellants sentence would result in an outcome different to that intended by

the learned Chief Magistrate. However, before turning to the other grounds

of appeal, I note that His Worship appears to have been under a

misapprehension as to his sentencing powers in the Juvenile Court.

At the conclusion of submissions on behalf of the respondent, during which

the police prosecutor, Mr Murphy urged the learned Chief Magistrate to

impose a "substantial period of incarceration" on the appellant, His Worship

"And the maximums twelve months in this jurisdiction, isnt it?".

Mr Murphy confirmed the learned Chief Magistrates view of the maximum

sentence available under the Juvenile Justice Act. However, as Bynder v

"... the Juvenile Court cannot make any order where a juvenile is

sentenced to an effective term, or terms, of detention exceeding 12

months except to the extend permitted by ss 53(2), 92(2) and (now)

s.53AE(2A) of the Juvenile Justice Act". (emphasis added).

Section 53AE has been repealed and replaced since the judg ment in Bynder

v Gokel was delivered, but not in any material respect for the purposes of

the above passage. That judgment (at p.102 and 103) holds that the Juvenile

Court may order a juvenile to be detained or imprisoned for a period

exceeding 12 months where, inter alia, section 53AE (dealing with repeat

property offenders) is applicable and accumulation of sentences results in a

custodial sentence in excess of twelve months. In the present case, counsel

for the respondent has not suggested that the lea rned Chief Magistrates

misunderstanding as to the limits of his sentencing powers has led him into

error. In re-sentencing the appellant, I do not propose to increase the

appellants effective sentence. I will now turn to the remaining grounds of

Ms Little submitted that the learned Chief Magistrate placed undue weight

on the police prosecutors comments regarding sentence. The gravaman of

this ground of appeal is that, the prosecutor, having referred to the agreed

facts in the terms which I have quoted at paragraph [4] above, made

submissions as to an appropriate disposition in colourful and somewhat

emotional terms in which he sought to embellish those agreed facts.

For present purposes, I do not consider that is necessary to canvass this

ground of appeal in any detail. Ms Little conceded that she was not able to

identify anything in the sentencing remarks of the learned Chief Magistrate

which supported the contention that His Worship had given undue weight, or

indeed any weight, to the prosecutors comments. In the circumstances,

Similarly, I do not consider that there is any validity in the ground of appeal

that the learned Chief Magistrate paid insufficient regard to the social and

environmental circumstances of the appellant. The main thrust of this

complaint was that His Worship had not paid any, or any sufficient, regard

to the possibility of the appellant being subjected to traditional punishment

at the hands of his family or members of his community. This was not an

issue raised by the defence, but rather emerged from comments in the pre-

sentence report prepared at the learned Chief Magistrates request. The

author of the report had been unable to obtain any details as to the form that

traditional punishment or payback might take and no evidence was adduced

In Munugurr v R (1994) 4 NTLR 63 (and see also R v Minor (1992) 79 NTR

1 at 2) the Court of Criminal Appeal, in relation to submissions that an

offender would be subjected to traditional punishment held at p.73:

"The importance of having evidence put before the Court in proper

manner cannot be over-emphasized. The Court must be satisfied that

the information which is presented to it is reliable".

"statements from the bar table are of little assistance if they are not

backed up by evidence from those fully conversant with the

language and customs (and we add, views) of the community

In the present case, the information regarding the possibility of the appellant

being subject to traditional punishment fell far short of meeting the criteria

suggested above and the learned Chief Magistrate was correct to give this

matter little or no weight in arriving at an ap propriate sentence for the

The final grounds of appeal which needs to be canvassed (undue emphasis

on general deterrence and retribution, insufficient weight given to

rehabilitation and ,,manifestly excessive) amount in practical terms to a

complaint that the learned Chief Magistrate failed to take into proper

account the proper principles for sentencing juvenile offenders.

The proper approach to the sentencing of juveniles is well known and well

established. The following passage from the judgment of Martin CJ in

M v Hill [1993] NTSC 43; (1993) 114 FLR 59 at 66 provides a helpful summary of the manner

in which the Juvenile Court should tackle the difficult and sensitive task of

"Furthermore, it is well entrenched in the criminal law that there is

an essential difference between children and adults when they come

before a court exercising criminal jurisdiction. It is often the case,

as here, that the offending is explicable, in part, at least, by difficult

personal circumstances, immaturity and the growing-up process: see

the remarks of Burt CJ in Noddy v The Queen [1980] WAR 132 at

133. To all that is to be added, in respect of this appellant, a

particular intolerance to racial slurs. Judges of this Court have often

had occasion to reiterate the relevant portions of the preamble to the

Juvenile Justice Act 1983 (NT) which ways that it is an Act relating

to: ,,... the punishment of juvenile offenders ... with the intention

that juveniles be dealt with in the criminal law system in a manner

consistent with their age and level of maturity (including their being

dealt with, where appropriate, by means of admonition and

counseling) .... Having referred to that purpose of the Act Maurice

J in Simmonds v Hill [1986] NTSC 1; (1986) 38 NTR 31 went on (at 33) to observe

,,In the Juvenile Court the retributive aspect of sentencing is, at

best, of secondary importance. Even lower in the scale, if,

indeed, it has any place at all, is deterring others. The

overwhelming concern is the young offenders development as

a law abiding citizen. The court should be at pains to ensure

that its sentences do not alienate its young clients. Particularly

is this so in the case of a first offender. Here there is a real

risk that an incentive to good behavior has been removed,

namely the desirability of a clean record in what for young

people just leaving school is a very difficult labour market

The remarks of Martin CJ were adopted by Kearney J in M v Waldron (1988)

[1988] NTSC 42; 90 FLR 355. His Honour also referred to R v Homer (1976) 13 SASR 377 at

"... in the case of a juvenile ... the court is trying to find out

what is the best means of turning this delinquent juvenile into

a responsible law abiding adult and that has really nothing to

do with the seriousness of the crime ... and no useful

comparison can be made between an order made under a non -

punitive system and a sentence imposed on an adult."

I would also endorse the observation of Martin CJ in Hill, supra, at 67:

"The punitive and deterrent aspects of the sentencing process should

not be allowed to prevail so as to possibly destroy the results of (the)

I emphasis that in applying the above principles each case should be dealt

with on its merits. In particular, even in the case of a juvenile, deterrence

and punishment as sentencing objectives in the particular circumstances of

an offender and an offence (or offences) may assume considerable

significance. In Forrester v Dredge, unreported No. JA 78 of 1996,

"...general deterrence does have a role to play even in the sentencing

of juveniles and the weight to be given to it must vary according to

the circumstances of the case, including the nature of the charge."

With respect, I agree with this remark of Mildren J, but also adopt the

observation of Thomas J in Grego v Setter unreported No 9706926 of 1997,

"Overall, however, the consideration of general deterrence is not as

important in the sentencing of juveniles as it is in the case of

sentencing an adult. When sentencing a juvenile, considerations of

rehabilitation should always be regarded as very important, GDP

In the present case, the learned Chief Magistrate, correctly in my view,

referred to the notorious fact that unlawful use of motor vehicles at Port

Keats by young offenders is a matter of community concern. In the

appellants case, having regard to his history of similar offences involving

motor vehicles, I consider that the appellant was an appropriate vehicle for a

sentence involving an element general deterrence. Similarly, on the basis of

the appellants antecedents, an element of personal deterrence and

punishment was warranted notwithstanding the appellants status as a

juvenile. It is clear, however, that in giving expression to these sentencing

objectives, the learned Chief Magistrate did not lose sight of the need to

structure a sentence which promoted the appellants rehabilitation. He

sought to do this by making available the educational and vocational

training opportunities of a detention centre (notwithstanding his reference to

"imprisonment") coupled with a partly suspended sentence subject to

In the light of the appellants criminal record and the very serious nature of

his offences (in particular the offences of ,,dangerous act and ,,driving at a

speed and in a manner dangerous) I do not consider that the learned Chief

Magistrates approach was in any way contrary to the proper principles for

the sentencing of juvenile offenders. On the material before His Worship,

the appellant was a juvenile in urgent need of discipline, education, training

and supervision. It may well be that greater consideration might have been

given to the appellants precise age to avoid him having to serve any period

of incarceration in an adult prison. The effect of the learned Chief

Magistrates orders was such that the appellant would be likely (subject to

s.53(6) of the Juvenile Justice Act) to spend some five months in a detention

centre and one month in an adult prison. I do not consider that this latter

period would assist the juveniles rehabilitation. In the circumstances, as it

is necessary for the reasons stated earlier to re-sentence the appellant, I will

take the opportunity to adjust the appellants sentence to avoid him having

to spend any further period in an adult prison. I will also adjust the

appellants sentence to run from 4 May 1999 (the date he was taken into

custody) rather than 14 May 1999. Adoption of the latter date by the

learned Chief Magistrate appears to be explicable only on the basis of

For the above reasons, I allow the appellants appeal against sentence and

set aside the sentences imposed by the learned Chief Magistrate on 7 July

aggravated unlawful use of a motor vehicle and aggravated criminal

damage � the appellant is convicted and is to be detained in a

driving a vehicle on a public street whilst not being the holder of a

licence to do so � the appellant is convicted and is disqualified from

holding a licence to drive a motor vehicle for a period of 12 months

as from 4 May 1999 and discharged without further penalty;

driving a motor vehicle at a speed and in a manner dangerous to the

public � the appellant is convicted and is to be detained in a

being the driver of a motor vehicle, failed to stop the said vehicle

when required to do so by a police officer � the appellant is

convicted and is discharged without further penalty; and

dangerous act � the appellant is convicted and is to be detained in a

The sentences with respect to (c) and (e) above are to be served concurrently

to each other, but on a cumulative basis to the sentence referred to at (a)

above. All sentences of the appellant are deemed to have commenced on 4

With respect to the effective sentence of 12 months detention, the a ppellant

is to be released from detention or imprisonment from the date of this order

and the unserved balance of his sentence of detention is to be suspended for

a period of 12 months from the date of this order, subject to the following

the appellant is to report immediately to the Director of Correctional

Services or his delegate and comply with any requirement of the

to reside with a particular person or at a particular place;

to refrain from specified activities or from associating with

to participate in specified educational programmes, vocational