R v Walker [1994] NTSC 79; 116 FLR 198 (1 September 1994)
[2]
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
MARTIN CJ
CWDS
Criminal law - jurisdiction, practice and procedure
Judgment and
punishment - Recognizances - Breach - Generally - Practice - Convictions
activating suspended sentence - Factors taken
into account - Criminal Law
(Conditional Release of Offenders) Act (NT), s6(3). Higgins v Goldfinch (1981)
26 SASR 364, referred to.
HRNG
DARWIN
#DATE 1:9:1994
Counsel for Crown: Alexis Fraser
Solicitors for Crown: DPP
Counsel for accused: Lorraine
Liddle
Solicitors for accused: CAALAS
ORDER
Application refused.
JUDGE1
MARTIN CJ Wilson Jagamara Walker, on 10 February
this year you were sentenced
by me in this Court to three years imprisonment, which was backdated to 27 May
1993, upon your plea
of guilty to manslaughter. You had stabbed a man in the
course of a brawl when you were apparently going to the aid of a relative
who
was being violently assaulted by other people. The man you stabbed died as a
result of the wound that you inflicted upon him.
In all of the circumstances that were then put before me, including
evidence that you were liable to suffer further punishment
in accordance with
Aboriginal ways, the sentence was suspended forthwith upon your entering into
a bond to be of good behaviour for
two years. By that bond you accepted the
supervision of the Director of Correctional Services. It now appears, as you
have acknowledged,
that you have since been convicted of other offences
committed after you entered into that bond.
On 24 June 1994 in the Court
of Summary Jurisdiction at Katherine you were
convicted for driving whilst having a blood alcohol level in excess of .08,
and of
driving whilst unlicensed. For that you were fined a total of $700.
On 24 August 1994 you were convicted by the court at Yuendumu,
that firstly on
22 July at Katherine you drove while having a blood alcohol content of .121
percent, and being a person who had been
disqualified from holding a driver's
licence you were driving, and that you drove a motor vehicle on a public
street without due
care.
For the first offence you were fined $500, your licence was cancelled and
you were disqualified from holding and obtaining
a licence for a further
period of 12 months. On the second offence, that is the driving while
disqualified arising from the original
convictions, it was ordered that you be
imprisoned for a month. For the third offence of driving without due care,
you were convicted
but not ordered to pay any penalty apart from the statutory
victims assistance fund levy. At the same time and date you were also
convicted that on 6 August 1994 at Lajamanu you drove a motor vehicle with a
blood alcohol content of .167 and again for driving
while disqualified.
On the driving offence itself: $800 fine and your licence cancelled for 18
months. On the second offence,
that is the second offence within a short
space of time, driving while being disqualified, you were ordered to prison
for two months
cumulative on the sentence on the other occasion, that is a
total period of three months imprisonment, plus substantial fines. I
assume
you will be unable to pay those fines since you are going to be in prison and
that you will be spending further time in gaol
for the appropriate period to
equate to the quantity of those fines. The two last sets of matters were
dealt with at the one time
by the same magistrate while sitting at Yuendumu,
that is the driving offences in Katherine and Lajamanu.
The Crown now seeks
to have you dealt with for that you have been
convicted of all of those offences during the period of a good behaviour bond.
The
Criminal Law (Conditional Release of Offenders) Act provides that upon
such a conviction you may be brought back before the Court
which sentenced you
in the first place and whether those convictions are recorded in or outside
the Territory, being offences that
you committed during the period of your
good behaviour bond.
In such a case this Court may commit you to prison to undergo imprisonment
for such term, being a term not exceeding the balance of the original
sentence, that is two years and three months. The Court does
not look to your
behaviour to determine whether you failed to be of good behaviour. It seems
on a reading of subs(3) of s6 of the
Act that that is no longer a test. The
criteria which brings you back here is the convictions themselves for the
offences referred
to. Discussion about whether your conduct amounted to a
breach of an undertaking to be of good behaviour is not therefore to the
point
any more, see for example Higgins v Goldfinch (1981) 26 SASR 364.
Nevertheless the Court still has a discretion as to whether it ought to
exercise its powers in respect of the suspended portion
of the sentence and if
so, what it should do. The first question is whether the offences for which
you were sentenced in the Court
of Summary Jurisdiction should lead to the
activation of the suspended sentence. It is well to bear in mind that in
entering into
the bond you must be taken to have understood that if you were
convicted of any offence during the currency of it you stood to be
returned to
prison to serve out the balance of the suspended sentence, as a maximum.
That is a statutory condition imposed upon
release pursuant to a suspended
sentence. It is not to be taken lightly by those who take advantage of the
opportunity offered to
secure conditional release from incarceration, nor can
it be treated lightly by the courts. The parliament has provided that a
conviction
is a trigger which may lead to the offender going back to gaol.
But it is a matter for the Court as to whether the trigger is pulled.
There
are a number of matters to be considered before coming to a decision in the
exercise of the discretion which must be made
in the light of all the
circumstances.
For example: what was the offence for which you were convicted? In this
case we are
talking about the original conviction for manslaughter, in the
circumstances I have already described. It was regarded as being
a killing in
the course of defence of another, which defence of that other person was
excessive. What was the period of the bond?
Two years. What of that period
has elapsed before the commission of the further offences? The conviction is
the fact giving rise
to the exercise of the Court's jurisdiction, but the date
of the offending is the relevant date for consideration of the degree to
which
the offender has observed the obligations and conditions accepted by him by
entering into the bond.
The offences in this
case - the first one was on 10 June 1994, about four
months after you were released on your bond; the next series on 22 July, a
little
over five months from the time you were released on the bond; the next
series on 6 August, a little less than six months after you
were released on
the bond. If, as in a case like this, there is more than one conviction
relied upon the question is: should any
of the earlier or the earliest of them
be given much weight when those with authority to do so do not seek to
activate the committal
proceedings at the time. The prosecutorial discretion
to invoke the powers of the Court, if not exercised promptly may result in
unfairness to the offender if he or she is subsequently subjected to time in
gaol. If the matter is not dealt with promptly the
offender may be entitled
to consider that it is not intended to proceed further against him or her or
that offending of that type
will not be regarded seriously enough to warrant
the bringing of committal proceedings. Additionally an opportunity may have
been
lost for the Court to deal with the offender by way of a warning or
admonition which may have resulted in his offending no more.
Just because there is more than one conviction, it does not necessarily
follow that the scales are weighed more heavily against
the offender. Of
course, if there was more than one separate set of incidents giving rise to
the offences, then that may demonstrate
an attitude on the part of the
offender of such disregard for his undertaking and the authority of the law
that the sanction provided
for of committal back to prison should be employed.
In this case the first conviction occurred on 10 June 1994 and although it
will
be taken into account, it does not carry much weight, given the time
which elapsed before it was sought to invoke the powers of this
Court in
respect of it. The second and third convictions were only a few days ago and
the application has been brought promptly.
As with all options in regard to punishment, the Court must take into
account that its end obligation is the protection of the
community.
Conditional release is usually allowed where it is considered that the
offender ought to be permitted to serve part of
the sentence in the community,
partly upon the basis that there is not likely to be any further threat to the
community, and further
upon the basis of his or her prospects of
rehabilitation; that they are likely to be improved by such a step. Both of
those possible
outcomes have not prevailed in your case. The community has
not been totally protected. It has been further threatened by your
subsequent
criminal offending - though, and it is important to note, no harm has been
done - and you have not demonstrated that you
accept the need to behave in a
responsible manner.
The events which led to your recent convictions were of varying degrees
of
seriousness under the criminal law. The June offence involved you driving
with a blood alcohol content of .137. Not an insignificant
amount, but far
from being very serious. It was not your driving that brought you to the
attention of the authorities, but a random
breath testing station. You had no
excuse for your driving without a licence; that is hardly a serious matter in
this context.
In August the first set of offending had taken place in
Katherine and the details of the particular offences I have already given:
.121 blood alcohol content and, being disqualified, you drove a motor vehicle
on a public street. You were also charged and convicted
of driving a motor
vehicle on a public street without due care, and it appears that you ran into
the back of a turning caravan.
There is no information before me to suggest
that it was more serious than the magistrate regarded it in simply convicting
you without
penalty. In respect of the later offences committed on 6 August
1994 at Lajamanu, your blood alcohol content was .167 and again
you drove
while disqualified.
It is open to this Court in all the circumstances of this case to
overlook the convictions, or
any of them, as not warranting any action, or to
admonish you with a warning that a further conviction or convictions may well
result
in serious consequences; that is, a committal to prison for a
significant period, or to commit you to prison for any period up to
the
balance of the original sentence, two years and three months, with or without
an order that you be again granted the privilege
of conditional release, or in
the event of committal to prison for a period in excess of 12 months, to make
an order that you not
be eligible for release upon parole for a specified
period. All of those courses are available in the exercise of the discretion
whether to commit you to prison or not and, if so, under the provisions of the
Criminal Law (Conditional Release of Offenders) Act.
The submissions made on
your behalf in mitigation of the punishment under consideration are firstly
that the Court has a wide discretion;
secondly, that there were degrees of
defiance involved in your conduct. But that was directed more to your
disqualification from
driving and was not particularly related to the bond
upon which you entered in relation to this offence. In any event, the degrees
of defiance displayed in relation to those matters have been dealt with and
quite harshly in that Court; I do not say not well deserved.
In any event, it is not quite right to say that there has been no
defiance of this Court. The mere fact of your having offended
further shows a
lack of appreciation, at least, of your obligations under the bond. You were
dealt with on the one day in the Court
of Summary Jurisdiction and it was
suggested that, as a matter of law, that only amounted to one offence. Now,
that may or may not
be correct in respect of some aspects of the
administration of criminal law, but I certainly do not take it into account as
something
in your favour in respect of this aspect of administration of the
criminal law.
What I do take into account, however, is that
there was no opportunity
after your first lot of post release offending for you to be brought before
this Court to be dealt with
and perhaps warned or admonished of the risk you
ran if you did not start to act in a more responsible manner. That was
fortuitous,
and it may work in your favour. There are some extenuating
circumstances attending upon the commission of all the offences, as has
been
put to me by your counsel and I need not reiterate them. You will have to
serve three months under sentence and that should
bring home to you that
driving while you are drinking and while disqualified is a most serious matter
and likely to involve you in
further times in gaol should you offend in that
way again. You say you are sorry about those things and consider what you
then did
as being stupid. Well, I can only hope that you are being honest to
yourself when you say those things. It was also part of the
submissions,
which must weigh with me, that the offences for which you were convicted on
these recent occasions had nothing to do
with the type of offence for which
you were convicted back in February.
It is not appropriate that any action should be taken
in regard to the
June convictions. About two months elapsed before anything was done about it
and it was quite a different type
of offence to that for which the sentence
was suspended, and you caused no harm to anybody in that particular series of
events.
In this context it is not so serious an offence as to warrant any
action. As to the later convictions, dealt with on 24 August,
however, action
has been promptly taken and although the offending was different from that for
which the sentence was suspended,
the circumstances are serious. But I note,
again, that there is difference between the two types of offending.
Your continuing
offending in this way shows a disregard of the lawful
authority of the courts on your part. You have of course been punished for
all those things in the Court of Summary Jurisdiction and the question now is
whether this Court should send you back to gaol for
the original offence
because of it, and I must tell you that I was on the verge of doing so. You
have missed an opportunity, which
has perhaps operated in your favour, and
that is that you have not as yet had to confront this Court for a breach of
bond and for
you to be given the opportunity to understand how serious it is
as far as this Court is concerned. On a fine balance it is not appropriate
that you be committed to prison for any part of the unexpired sentence for the
manslaughter.
Your present confinement may have
the effect of deterring you from
further offending of driving under the influence and the like, and I note that
no violence to any
person was involved. It is of course open to this Court,
notwithstanding all that, to see that you go back to gaol for a time in
relation to the manslaughter offence, but I do not propose to do so.
But I do tell you this. You are warned, that should you
be convicted
again of any form of offence during the remainder of the period of the bond
you may not be dealt with so leniently.
The fact that you have been warned
that you should take your undertaking seriously will be known to this Court
the next time you
offend, if you do, and this may well be your last chance.