Rontji v Westphal [2010] NTSC 67

Appellant: Central Australian Aboriginal Legal Aid Service

Respondent: Office of the Director of Public Prosecutions

Rontji v Westphal [2010] NTSC 67

[1] On 13 September 2010 at Hermannsburg, the Appellant pleaded guilty to one count of driving unlicensed and was convicted and sentenced to a period of 21 days imprisonment. She had nine previous convictions for drive unlicensed. The maximum penalty is 20 penalty units or imprisonment for 12 months. The Appellant was apprehended by police on 1 May 2010, 20 kilometres east of Hermannsburg as a result of attending a road side breath testing station. The license check made by police revealed she did not have a driver's license. When asked why she was driving without a license she said "To come into the sport's weekend". When asked if there was any emergency reason for driving she said "no".

[2] The Appellant argues two grounds of appeal. First, the sentence was manifestly excessive. Second, the learned Magistrate erred by not considering other sentencing options available "alternative to a term of immediate imprisonment". The respondent conceded the sentence was manifestly excessive. As a discretionary order a sentence will not be disturbed unless error is clearly shown according to well established principles.[1]

Proceedings Before The Court of Summary Jurisdiction

[3] Aside from the facts noted above that were put before the learned Magistrate brief submissions were made on behalf of the Appellant explaining she was 30 years of age, married with three children, resides at Jay Creek although she grew up and went to school at Hermannsburg. She had children at a young age; been a full time mother since she was 18 years of age and was currently in receipt of Centrelink benefits. His Honour was told the Appellant was recently trying to obtain her license although there is no clear explanation why that did not proceed. It may have been due to previous disqualifications from driving but that is unclear from the transcript.

[4] Counsel raised the Appellant's plea of guilty and that the drive unlicensed was not aggravated by other poor driving or by alcohol. Counsel noted her previous record of drink driving and submitted that she had learnt not to drink drive but "nevertheless she's still coming to court in relation to driving without a license" (T 3). Counsel told the Court the Appellant had indicated to him she would like to obtain her license and requested the case be dealt with by way of fine.

[5] The learned Magistrate noted the Appellant had been convicted for different traffic offences 23 times including the nine previous matters of driving without a license. He considered she was ignoring her obligation to obtain a driver's license and there was no evidence before him to persuade him that the Appellant had learnt her lesson.

[6] On the basis of the need for general and specific deterrence and being given too many chances, His Honour noted the Appellant had "run out of chances" and imposed the term of actual imprisonment for 21 days.

[7] Before this Court is a schedule of recent penalties for drive unlicensed penalties imposed in the Court of Summary Jurisdiction between 19 January 2010 and 28 July 2010. None of the persons noted in the schedule received a sentence of imprisonment. All were dealt with by way of fine. Many have received aggregated fines with other traffic fines for concurrent offending. I include in that assessment persons who have been fined when they have 7 - 10 previous convictions. The fines for that category of repeat offender range from $125 - $500.

[8] In this matter it is difficult to see how departing from the established sentencing standard could be justified. There was no other errant driving noted and no alcohol was involved. The previous drive unlicensed conviction was dealt with in 2008 for an offence committed in 2007. Although concerning and somewhat frustrating, the offending does not have the features of a contumelious breach of the law. Despite the previous convictions an assessment must be made of the objective seriousness of the offending.[2] In my respectful view the particular offending did not justify a term of imprisonment and is plainly excessive when viewed in the light of the usual sentencing range and recently considered decisions.[3]

[9] Ground two is a related ground. If the Court of Summary Jurisdiction were to impose an alternative sentence to a fine, (if it was thought an alternative would serve general and personal deterrence in a more meaningful way), other options need to be considered before resorting to imprisonment. In Ross v Toohey[4] Mildren J said [14]:

"I accept that imprisonment is an option of last resort in the sense that, the sentencer should consider all of the other lesser options first and, only if the sentencer concludes that no lesser sentence is appropriate, should a sentence of imprisonment be imposed".

[10] I accept also that the mere fact that other options were not canvassed does not mean they were not considered. As Riley J (as he then was) stated:

"It is to be assumed that magistrates are well aware of the sentencing options open to them".[5]

[11] Failure to specifically mention a particular sentencing option does not mean it was not considered.[6]

[12] Counsel did not raise other options for the learned Magistrate's consideration. That may have been due to the settled sentencing standard being a fine. There may have been other options available that could have serviced the requirements of general and specific deterrence and encouraged compliance. Community work may have been an option. On appeal it was mentioned by counsel that some Magistrates postpone sentencing after a plea of guilty has been entered to ascertain if the Defendant can make the appropriate arrangements to take steps to obtain a license. Some remote areas do not have facilities for license testing on a regular basis. Once again, on Appeal counsel who appeared understood that Hermannsburg was a community that did not have the problems of other more remote areas in this regard.

[13] Given the question of the suitability of the Appellant for community work was not raised, I cannot be satisfied the option of community work was available to the learned Magistrate. Defendants must be assessed for their suitability for community work. Given however the significant step taken to order immediate actual imprisonment leads me to the conclusion that ground two is made out. As noted, counsel asked the learned Magistrate to fine the Appellant. Counsel did not offer other alternatives. Other options have been canvassed on appeal. In future cases counsel should, in my respectful view, at least mention alternatives reasonably available at first instance.

[14] The appeal will be allowed. I quash the sentence of imprisonment and impose instead a fine which I consider to be in the upper range of offending for offenders with a significant number of previous convictions for drive unlicensed. I have been conscious of the approach of Martin CJ in Lucy Long v Lindsay Westphal[7] and Peter Michael v Donald Eaton[8] and with respect agree and adopt His Honour's approach.

[15] I have considered having the Appellant assessed for community work however in the interests of expediting the matter (given the Appellant is not personally before this Court on appeal and some time has now lapsed since the offending) in my view on this occasion a fine in the upper range is appropriate.

[16] The Appellant is fined $500 and I order a victim's levy of $40.

[1] R v Raggett (1991) 50 A Crim R 41; House v The King [1936] HCA 40; (1936) 55 CLR 499.

[2] Veen v R (no 2) [1988] HCA 14; (1988) 164 CLR 465.

[3] Lucy Long v Lindsay Westphal [2010] NTSC 55; Michael v Eaton [2010] NTSC 56

[4] [2006] NTSC 92.

[5] Simon v Garner [2007] NTSC 33 at [12].

[6] Simon v Garner at [12] citing Kuiper v Brennan [2006] NTSC 54.

[7] [2010] NTSC 55.

[8] [2010] NTSC 56.