Supreme Court of the NT|1989-12-04|Before: Rice J

Ross v Svikart [1989] NTSC 47; 99 FLR 134 (4 December 1989)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Rice J.(1) CWDS Appeal - Justices Appeal - appeal against severity of sentence - disputed facts - procedure to be adopted - whether magistrate considered irrelevant and improper factors - whether magistrate failed to take personal factors into account. Case applied: Georgeff v Samuels (1976) 14 SASR 384 at 386 Cases considered: Baumer v R [1988] HCA 67; (1988) 83 ALR 8 at 13 Murphy v Smith (unreported judgment Forster C.J. 2 September 1983 at p 4) R v Maitland (1963) SASR 322 at 335 R v Stehbens (1976) 14 SASR 240 at 245 R v Thompson (1975) SASR 217 at 221 R v Vecsey (1962) SASR 127 at 128 Cases followed: Cransenn v King ; House v King ; Statutes: Criminal Code (NT) s.218 HRNG ALICE SPRINGS #DATE 4:12:1989 Counsel for the Appellant: G. Dooley Solicitor for the Appellant: CAALAS Counsel for the Respondent: M. O'Loughlin Solicitor for the Respondent: Solicitor for the NT ORDER Appeal allowed. JUDGE1 On 30 October 1989 the appellant was charged in the Alice Springs Court of Summary Jurisdiction constituted by a stipendiary magistrate with unlawful use of a motor vehicle at Alice Springs on 3 August 1989. (S.218 of the Criminal Code.) The appellant pleaded guilty and was convicted and sentenced to a term of imprisonment for 3 months. The appellant appealed against the sentence. His stated grounds of appeal are:- "(a) That the said sentence imposed on the appellant by the learned Stipendiary Magistrate was in all the circumstances manifestly

excessive. (b) That the learned Stipendiary Magistrate erred in that he took into consideration irrelevant and improper factors when formulating the sentence he imposed on the appellant." 2. When the appeal came on for hearing, I requested counsel for the appellant to state the second ground with more particularity whereupon I was told that the learned magistrate took into consideration improper factors in that he speculated about what may have happened to the vehicle should it have actually been stolen and taken elsewhere, which in fact did not occur; that he failed to take into consideration the various factors that pertained to this particular incident, but instead treated it as "a typical case of the unlawful use of a motor vehicle." Moreover, it was claimed that the learned magistrate allowed extraneous matters to affect him, that he mistook the facts and that he failed to take into account factors personal to the appellant. 3. The facts outlined by the prosecutor were stated thus:- "On Thursday, 3 August 1989 the defendant in this matter was in company with another male person and both were walking back to Morris Soak Camp and Woodyard(?) Camp. The defendant entered the premises of 43 Madigan Street, and with the assistance of the other person pushed a Holden sedan vehicle from the driveway and down the street. The defendant was sitting in the passenger's seat of the vehicle assisting the other person to fit a hot wire kit to the vehicle. The defendant was unable to decamp the scene due to his highly intoxicated state and was apprehended by police. When asked for a reason as to why he was in the vehicle the defendant stated that he wanted to go home to Kintore and that the other bloke made him sit in the vehicle. The defendant was arrested and told he would be charged with the above offence. He did not have permission to enter the vehicle. The co-offender in the matter, Your

Worship, is George Jagamara." 4. It is important to note from the transcript of proceedings in the lower court that at the conclusion of these remarks, counsel for the appellant stated that while the appellant admitted sitting in the passenger's seat, he took issue with other portions of that precis of events and thereupon immediately commenced his submissions. 5. During the course of his submissions counsel laid the blame for the commission of the offence squarely at the feet of George Jagamara whom he claimed had suggested that they steal a car and go back to Kintore, to which the appellant demurred by stating that he was not going to go in a stolen car back to Kintore and that he at no time intended going back there and that, in fact, he lived at Kiwakurra, past Kintore. It was put that George was both the instigator and perpetrator of the offence and that the appellant had no knowledge of how to hot-wire a car and that George acted alone and that he, the appellant, who was drunk at the time, was merely hanging about and went and sat next to George in the car. It was submitted that there was no damage to the car, and that the appellant was so drunk that he did not leave the scene whereas George left without being apprehended. 6. It was further submitted that the appellant is a 34 year old Pintabi man born at Kiwakurra. He has lived there all his life except for a period of five years when he went to Papunya for his schooling. After taking on a job when he was 19 years of age for about nine months, he went back to Kiwakurra where he worked for the local community, driving a water truck and graders and other machinery. It was submitted that he has had stable employment ever since 1975. It was put that his father, mother and five sisters all live at Kiwakurra. About four weeks before his court appearance he received a pay cheque for $1,500 representing his fortnightly wage. He is married, has three young children. He came to Alice Springs in August 1989 to see his uncle. It was submitted that he had caught a plane to Alice Springs for that purpose and that he had been trying to organize a flight back should he be in a position to do so. It was claimed that was his usual way of coming to and going from Alice Springs. 7. The appellant's prior convictions which are quite numerous were admitted; but it was contended that it was not since 1987 that he had been convicted of any offence of note. In 1982 he had been convicted of breaking, entering and stealing and was fined $250 which it was submitted was a rather insignificant matter. It was admitted, however, that in 1988 (in fact, on 6 June) that the appellant had been convicted of driving unlicensed and of exceeding .08%, namely .20%, and fined $500 and disqualified from driving for 18 months. It was therefore submitted that he had "turned himself around" by which I take it that he had reformed from the spate of offending in relation to the illegal use of motor vehicles for a period of virtually 10 years. Indeed, between 1972 and 1978 he had been convicted on six separate occasions during that period of kindred offences under the then existing legislation, namely s.49A of the Summary Offences Act for which the maximum penalty was a fine of $1,000 or six months' imprisonment, or both. I pause to mention that under s.218 of the Criminal Code under which the appellant was charged before the learned magistrate, the maximum penalty is imprisonment for two years for what is termed an "unaggravated offence". 8. Finally, the appellant's counsel asked for a community service order or a fine in lieu of imprisonment which he submitted would be inappropriate in view of the circumstances and the fact that the appellant had improved himself. 9. Immediately after hearing these submissions, the learned magistrate, in the course of sentencing, remarked:- "It's been put forward Mr. Ross, that the motor vehicle wasn't damaged in the time which you had it, and it could well be that it wouldn't have been damaged in the ensuing 12 hours if you had continued to retain possession of it, but by then it would either be at Kintore or Kiwakurra in Western Australia, or some parts in between, or even some parts beyond chasing

kangaroos. It's a typical unlawful use of a motor vehicle where a person takes a vehicle in and the taking would involve him driving the motor vehicle a long distance into remote areas of the Northern Territory and into remote areas where the owner of the motor vehicle would not have lawful access to those lands. Courts must treat these offences extremely seriously.

People are entitled to possess their motor vehicles in peace without having them stolen or taken and parliament has clearly demonstrated by increases in penalties that they expect courts to become more strict on these matters, and parliament has increased the penalties applicable from the times, I realise, when '77 was your last interfere (sic.) with a motor vehicle. You had 6 months sentence in '75, 3 months in '75, 6 months at Essington House in '72 and other penalties, all indicating, no doubt, to you that courts would take a serious view of such offences. Although those offences are a long way back, nonetheless they have to be taken into account by the court, and obviously they reduce any chance of leniency the court might otherwise be disposed to give to you, particularly as in 1982 you had another dishonesty offence. After that your number of offences have declined but you have to be quite clearly realise that courts cannot and will not, and indeed ought not impose penalties that do

not act as a deterrence not only to yourself but to other people in the community who might be disposed to take motor vehicles and head off into the wide blue yonder with them. You'll be convicted and ordered to be imprisoned and kept at hard labour for a period of 3 months." 10. On the hearing of the appeal, it was contended by counsel for the appellant, (who had also appeared for the appellant in the court below,) that the learned magistrate should have accepted the facts outlined in the appellant's submission where they conflicted with those outlined by the prosecutor and in consequence should have accepted the version of the facts most favourable to the appellant where they conflicted with those outlined by the prosecutor. I do not accept this submission. 11. In my opinion, the proper approach is that if an accused person agrees that he is guilty of conduct constituting the crime charged but does not admit the truth of the facts put forward by the prosecution which are relevant only on the question of penalty, his proper course is to give and, where appropriate, call evidence with a view to having the disputed facts resolved. (See R v Vecsey (1962) SASR 127 at p 128; R v Maitland (1963) SASR 322 at p 335; R v Thompson (1975) SASR 217 at p 221 and R v Stehbens (1976) 14 SASR 240 at p 245.) In the first instance, it behoves the accused to initiate the challenge to the facts outlined by the prosecutor. The Court is thereby made alive to any point of conflict and is not left to speculate about the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused. 12. I set out below the observations of Walters J. in Georgeff v Samuels (1976) 14 SASR 384 at p 386 et seq., which, with respect, I adopt as an authoritative expression of the law, equally applicable to the Courts of Summary Jurisdiction in the Northern Territory:- "I have a good deal of sympathy for the views expressed by the Special Magistrate in relation to the submissions made to him in mitigation of penalty. Sitting as a Special Magistrate, I too might have entertained them with considerable scepticism. But, with all respects, it seems to me that if the Special Magistrate were disinclined to accept the submissions made by counsel in extenuation of the appellant's offence, he should not have come to a concluded view on the issues before him without first having given the appellant the opportunity of substantiating on oath the facts put in the extenuation of his offence. By his plea of guilty, the appellant admitted no more than the essential ingredients of his offence; and his plea did not, of itself, negate any circumstances of mitigation. It is the primary duty of a sentencing court 'to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the

accused' (R v Maitland (1963) SASR 332, at p 335). And this duty is no less in a court of summary jurisdiction. The procedural principles to be applied by a summary court, when it is about to pass sentence on an offender, have been laid down by Bray C.J. in Law v Deed (1970) SASR 374. At pp 378-379 of his judgment, the learned Chief Justice enunciated the procedure to be applied before a story, appearing on its face to be incredible, should be rejected; his Honour said:- "Normally (the defendant's version) is put forward by the defendant's counsel if he is represented or, if he is not, by himself without being sworn. The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think that it ought to take this course without giving the defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call.
Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination. That was not done in this case and I think the appellant should be given an opportunity to do it if he so desires. It is true that no request was made by ... counsel; but he could not be expected to anticipate the learned Special Magistrate's rejection of the story and I think that, before the learned Special Magistrate finally rejected it, he should have given the defendant an opportunity to enter the witness box.'"

...... "Ordinarily an election by counsel not to call, or not to apply to call, evidence for a defendant is binding on that party, but it seems to me that in a sentencing court, that rule is abrogated in the light of the decisions in R v Maitland (supra); Schugman v Menz (1970) SASR 381; Law v Deed (supra); Low v Jones (Unreported Wells J., 17th February, 1976). Because of these decisions, and the course taken by the Special Magistrate, or his omission to follow the correct procedure, I have come to the conclusion that the present case warrants the intervention of this Court; that the appeal should be allowed on the third ground raised by the notice of appeal, and that the case should be remitted for re-hearing. Since I propose to adopt this course, I refrain from saying more about the facts relevant to the charge against the appellant." ...... "Although the duties of counsel 'are not capable of exact definition which will cover every situation', I would think that where his client's freedom is at stake, counsel should make himself aware of the procedural rules and any relevant authorities which will assist his client's case. And I go so far as to say that if counsel observes that the court is proceeding to pass sentence on erroneous principles, it is his duty to call the court's attention to the fact. It must be taken, I think, that the task of legal research belongs to counsel, and although it is not difficult, even after careful research, for authorities to be missed, I have no doubt that if counsel who appeared for the appellant in a lower court had made a reasonably diligent search, he would have been in a position to call the Special Magistrate's attention to the decisions which I have cited in these reasons, and thus have prevented the non-application of correct procedural and evidentiary principles." 13. For the appellant, reliance was placed on the celebrated decisions of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509. In House, Dixon J. (as he then was) and Evatt and McTiernan JJ. said at p 504:- "The manner in which an appeal against an

exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into

account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." The same judges in Cranssen said at p 519:- "It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instances restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority." 14. Applying these principles to this appeal, I am of the opinion that the learned magistrate fell into procedural error. The submissions by the appellant's counsel were so far at variance with the prosecution's version of the facts that, in my opinion, notwithstanding counsel's failure to call the appellant to give sworn testimony if he wished to dispute any of them, the learned magistrate was bound to accord the appellant that opportunity of his own motion once the conflict of facts presented itself. 15. Although this is sufficient to dispose of this appeal, I feel constrained to mention that the learned magistrate quite properly, in my opinion, considered that the appellant's previous offending for this type of offence, although occurring a long time ago, reduced his chances of leniency which the Court might otherwise be disposed to accord him. (cf. Baumer v R [1988] HCA 67; (1988) 83 ALR 8 at p 13.) Coupled with this, the learned magistrate considered that the aspect of deterrence loomed large in the sentencing process, both as to the appellant himself and to other people in the community who might be disposed to commit the same offence. 16. The learned magistrate in his introductory and closing remarks on sentencing, however, resorted to somewhat speculative and rhetorical observations. Even though magistrates in Central Australia are in an ideal position to know about the prevalence of this offence and about the loss and inconvenience caused thereby to owners of motor vehicles, the learned magistrate's remarks were irrelevant to the matter he was considering and would better not to have been said. (cf. Murphy v Smith (unreported judgment of Forster C.J., 2 September 1983 at p 4).) 17. For these reasons, I allow the appeal for the purpose of setting aside the sentence and of remitting the case for rehearing, on the appellant's plea of guilty, before a Court of Summary Jurisdiction to be constituted by a stipendiary magistrate, other than the stipendiary magistrate from whose order this appeal is brought. Order accordingly.

Ross v Svikart [1989] NTSC 47; 99 FLR 134

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Ross v Svikart [1989] NTSC 47; 99 FLR 134 (4 December 1989)

Parties

Cases Cited (7)