Supreme Court of the NT|1994-02-22|Before: Kearney J

Salmon v Chute & Anor [1994] NTSC 21; 4 NTLR 149; 94 NTR 1; 115 FLR 176; 70 A Crim R 536 (22 February 1994)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA KEARNEY J CWDS Criminal law - indictments - duplicity - callously failing to provide rescue, resuscitation, medical treatment, first aid or succour. HRNG ALICE SPRINGS #DATE 22:2:1994 Appearances not available ORDER Publication of reasons for decision. JUDGE1 KEARNEY J This is an appeal under s163 of the Justices Act from a decision of the Court of Summary Jurisdiction at Alice Springs. It was argued before me on 28 July 1993. On 12 August I ordered, for reasons to be published in due course, that:-

The appeal against the conviction and sentence for the offence against s155 of the Criminal Code be allowed, the conviction quashed, the sentence of 12 months imprisonment imposed for that offence set aside, and the charge for the offence under Code s155 be remitted to the Court of Summary Jurisdiction, for rehearing ab initio.
The appeal against the length of the non-parole period of 6 months be allowed and the order fixing that period be set aside.

"3. When I had been originally charged I had understood that I was not going to be charged with that offence (that is, the offence under Code s155). It was a day before one of my Court appearances that I found out that I was actually going to be charged with that offence. I had been informed by a Solicitor of the Northern Territory Legal Aid Commission and by reference to the file held at the Northern Territory Legal Aid Commission that I was due to attend Court on the 4th of May 1993 and on the 11th of May 1993. I cannot recall prior to which of these Court appears (sic) I was told for the first time that I was going to be charged with the offence under the Criminal Code but it would have been before one of these two appearances. 4. I pleaded guilty to that offence because I understood the charge to mean simply that I did not stop and render assistance. In fact I did not stop and render assistance to the deceased in this case and therefore I believed that I was guilty. 5. I did not understand this charge at the start of the case. At the start of the case I was charged with traffic offences and this offence was charged against me later on. It seemed to me at that time that nothing was getting done about the case and the case was simply being delayed. 6. I believe that very early in the proceedings whilst talking to my solicitor, Ms Pat McCrohan, that I had been

informed unofficially that I was not going to be charged with the offence under the Criminal Code. 7. I wanted to get the charges over and done with as soon as I possibly could. At the time the there was a great build up of pressure on me. The whole incident seemed to me like a nightmare and I was contemplating suicide over what happened. I didn't know what was going to happen to me. I did not know what the outcome was going to be. It seemed like this was a huge weight on my shoulders. 8. At this time I was also worried about repercussions from the family. I was worried about my own safety as a result of this and those considerations were also affecting me. 9. I now understand that there was a lot more to the charges than I understood at the time and I now believe that I should have pleaded not guilty to the offence and would have pleaded not guilty to the offence had I completely understood the charge. 10. It is possible that Ms Pat McCrohan informed me correctly as to the nature of the charge however even if she did so I did not understand it fully. I cannot recall if I was correctly informed of the nature of the charge or not. 11. It seemed to me that nobody really understood what was going on because this type of offence had not been before the Courts before. Ms McCrohan was not sure what penalty I would get and could not advise me as to what would happen. I formed the belief from what Ms McCrohan told me that she did not believe that I would go to gaol for these offences. It was however in my mind that it was possible to go to gaol for these offences but it was not in my mind that I would go to gaol for these offences. 12. At the time of the offence when the accident actually occurred I panicked and I was in shock which was why I did not help. I did not realize what had happened to the child. I asked the police when they came what had happened to the child. 13. I made no conscious decision not to stop at the time of the accident. I simply panicked and did not know what I was doing. 14. I now understand that the facts of this matter indicate that there was no capability of the deceased being rescued, resuscitated, medically treated or given first aid or succour which could have assisted the deceased at all. I do not know whether this fact is true but I understand that to be the prosecution allegation. 15. I have no first aid training or any medical experience. Had I stopped at the scene of the accident I would not have known what to do and do not believe that I could have rescued the deceased." THE APPEAL AGAINST THE CONVICTION FOR THE CODE S155 OFFENCE 9. Code s155, described by a previous Attorney-General in the Legislative Assembly as "the Good Samaritan provision", provides as follows:- "Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years." 10. This maximum punishment is the heaviest for any corresponding offence anywhere in the world. The offence charged is set out on p2. THREE PRELIMINARY ISSUES 11. Before addressing Mr Stewart's submissions in support of grounds Nos. 1-3, it is convenient first to deal with three important issues raised by counsel during the hearing of this appeal, viz: (i) The procedure required to be followed when the Court exercises the jurisdiction to deal summarily with an indictable offence with the consent of the accused under s121A of the Justices Act, with particular reference to the accused pleading guilty, and the Court's acceptance of that plea; (ii) Was the Information bad for duplicity?; and (iii) The nature of this Court's appellate jurisdiction under s163(1) of the Justices Act. 12. I deal with these, seriatim. PROCEDURE WHEN EXERCISING JURISDICTION UNDER S121A OF THE JUSTICES ACT 13. This raises a threshold question whether the Court had jurisdiction to hear and determine the charge of a Code s155 offence, and whether the learned Magistrate followed the correct procedures before accepting the appellant's plea of guilty to that charge. 14. Section 121A of the Justices Act gives the Court jurisdiction to hear and determine summarily certain minor indictable offences, provided the conditions precedent set out in the section itself are met. Rice J put it this way in R v Cavit; ex p. Griffiths [1986] NTSC 21; (1986) 39 NTR 1 at p7:- "Returning then to s121A, just as the specified offences under s120 are cognizable by a Court of Summary Jurisdiction, SO TOO, IF THE REQUIREMENTS OF S121A ARE OTHERWISE SATISFIED, the indictable offences coming within the purview of that section are also cognizable by a Court of Summary Jurisdiction even though they are crimes under the Code ... " (emphasis mine) His Honour went on, at p8:- " ... once an Information has been laid for an offence which comes within the purview of either s120 or s121A, and the Court proceeds to dispose of it summarily, then the PROCEDURE AND POWERS of the Justices Act apply "as if the charges were a COMPLAINT for a SIMPLE OFFENCE" under that Act. It is the combined effect therefore of ss295 and 296 of the Code which reduces a charge of an indictable offence, initiated by an Information, to a SIMPLE OFFENCE if disposed of by a Court of Summary Jurisdiction bound as it is by the added limits to its jurisdiction imposed upon it by the Justices Act." (emphasis in original) 15. For present purposes s121A embodies 2 relevant sets of conditions precedent: s121A(1)(c) and (d), and s121A(1A) and (1B). Section 122A must also be taken into account; it deprives the Court of jurisdiction to hear and determine under s121A a charge of an offence which "appears to him ought to be tried in the Supreme Court" because of certain circumstances - see p12. 16. Section 121A(1) sets out factors about several of which the Magistrate must reach an affirmative opinion before jurisdiction exists under s121A; as far as relevant, it provides:- "(1) SUBJECT TO SECTIONS 121B AND 122A, where (a) a person is charged before the Court with an indictable offence; (b) in the opinion of the Court, the charge is not one that the Court has jurisdiction, apart from this section, to hear and determine in a summary manner; (c) THE EVIDENCE FOR THE PROSECUTION IS, IN THE OPINION OF THE COURT, SUFFICIENT TO PUT THE DEFENDANT ON HIS TRIAL; (d) THE COURT IS OF THE OPINION THAT THE CASE CAN PROPERLY BE DISPOSED OF SUMMARILY; (e) the defendant consents to it being so disposed of; the Court has jurisdiction to hear and determine the charge in a summary manner, and pass sentence upon the person so charged." (emphasis mine) 17. Section 121A(1A), which is subject to ss(1B), allows an accused who is represented by a legal practitioner to plead guilty to a charge being dealt with summarily under ss(1) "at any stage of the proceedings". Ms Fraser of counsel for the respondents submitted in effect that these words should be given their full effect, and meant that the plea could be made at an early stage in the proceedings, as it was here (see p11). She submitted that to interpret s121A otherwise would mean that a Magistrate was unable to allow a plea of guilty to be made without first hearing, for example, prosecution evidence for the purpose of reaching the opinion required by s121A(1)(c). Ms Fraser submitted that the fact that s121A(1A) and (1B) had been added by amendment in 1983 supported the view that the plea of guilty by a legally represented accused could be made literally "at any stage", the object being to save unnecessary expense. I accept this submission. 18. Account must also be taken of the overriding prohibition in s121A(1B) which provides that:- "The Court hearing a charge being dealt with in the manner referred to in subsection (1) SHALL NOT ACCEPT A PLEA OF GUILTY under and in accordance with subsection (1A) from the person the subject of the charge UNLESS IT IS OF THE OPINION THAT IT IS PROPER TO DO SO." (emphasis mine) 19. The combined effect of ss121A(1)(c), (d), (1A) and (1B), in my opinion, is that before the Court accepts the plea there must be sufficient evidence adduced before the Court by the prosecution, or facts admitted, to enable the Magistrate to form the necessary opinion under s121A(1B) "that it is proper" to accept the plea. To form that opinion the Magistrate must ask himself whether on that evidence or the admitted facts, could the accused lawfully be convicted of the offence charged? A Magistrate cannot simply rely on the fact that the defendant was legally represented, to conclude that it was proper to accept the plea of guilty. It is desirable at this point to state briefly the sequence of events in the Court. 20. Before the learned Magistrate on 18 May 1993, Ms McCrohan of counsel announced that she appeared for the appellant and that "this matter is ready to proceed by way of a plea". I observe, with the benefit of hindsight, that the prosecution should not have acquiesced in summary proceedings, merely for the sake of convenience and expedition; such was the nature and novelty of the Code s155 offence that it was clearly not in the best interests of society to do so - see, for example, R v Coe (1969) 1 All ER 65 at 67, R v King's Lynn Justices (1969) 1 QB 488 at 494 and R v Canterbury Justices (1981) 2 All ER 129 at 136. The prosecutor was given leave to withdraw a charge, the charges were then read, the prosecutor asked the appellant how he pleaded, and he replied "Guilty". Immediately after that plea, the facts alleged were read out by the Prosecutor. Defence counsel admitted that those facts were correct, with one minor exception of no present relevance. Matters in mitigation of punishment were then presented in part by Ms McCrohan, on being called on by the Magistrate. The hearing continued that afternoon; Ms McCrohan made further submissions on 19 May, and her Worship proceeded to sentence immediately. 21. From this sequence of events, it is clear in my opinion that the Magistrate, immediately prior to the commencement of defence counsel's submissions in mitigation, had implicitly accepted the appellant's plea of guilty for the purpose of the summary hearing; see the observations of Barwick CJ in Griffiths v The Queen [1977] HCA 44; (1976-77) 137 CLR 293 at 302-3, and Aickin J at pp334-5. 22. It is I think a fair conclusion from reading the transcript that it was not until the submissions in mitigation were being made that the participants in the Court process, including the learned Magistrate and counsel, first realized that there were problems involved in the elements of the offence under Code s155. This is not surprising given the novel nature of the provision; it does not exist in Australia or in other common law countries. 23. This Court has the benefit of approaching those problems with hindsight. Given that benefit, the sequence of events during the hearing, and the difficulties to which Code s155 was seen to give rise, I consider it can now be seen that the Magistrate ought to have later decided not to hear the charge summarily under s121A(1) - that is, to change her earlier decision - because it had then become clear that the opinion required by s121A(1B) for jurisdiction that it was proper to accept the plea to the charge, could not be properly held. It lacked a proper basis in that on the admitted facts, the accused could not, without more, properly be convicted of the offence. I discuss this latter point later; see pp26-42. 24. On this basis - that there was ultimately no proper basis to accept the plea - the appeal against conviction for the offence under Code s155 would succeed. 25. It is pertinent at this point to deal briefly with s122A of the Act, an important provision in a case of this nature. Section 122A provides, as far as relevant:- " a Magistrate shall not have jurisdiction to hear and finally determine a charge under ... s121A, IF IT APPEARS TO ... HIM ... HAVING REGARD TO ITS SERIOUSNESS OR THE INTRICACY OF THE FACTS OR THE DIFFICULTY OF ANY QUESTION OF LAW LIKELY TO ARISE AT THE TRIAL OR ANY OTHER RELEVANT CIRCUMSTANCES, ought to be tried by the Supreme Court". (emphasis mine) 26. Ms McCrohan rightly informed the Court that Code s155 is a novel provision in the law. As noted above, the requirements of its provisions ultimately caused considerable confusion in the Court. With the advantage of hindsight, it can now be seen that the better course of action would have been for the learned Magistrate to have declined, after hearing the plea in mitigation, to hear and determine the charge, applying s122A. On the principles applicable in reaching the opinion required under s122A see R v Harris and Daly (No.1) (1975) 12 SASR 264 at pp268-9, R v Johnston and ors (1978) 19 SASR 157, R v Highbury Corner Magistrate; ex p. Weekes (1985) 1 QB 1147; and R v Bodmin Justices; ex p. McEwen (1947) KB 321. THE INFORMATION - WAS IT "BAD FOR DUPLICITY" 27. Mr Stewart submitted that the Information charging the Code s155 offence was "bad for duplicity". He contended that it was a charge of several quite distinct offences and that this had embarrassed the appellant in his plea. 28. It is convenient at this point to set out again the relevant part of the Information (which complies with s22A and 181 of the Justices Act) on which Mr Stewart relied to support this submission:- "BEING ABLE TO PROVIDE RESCUE, RESUSCITATION, MEDICAL TREATMENT, FIRST AID OR SUCCOUR OF ANY KIND to a person, namely Clinton Abbott whose life may be endangered if it is not provided, callously failed to do so: s155 Criminal Code" (emphasis mine) 29. It can be seen that this follows the wording of Code s155 (p7); but that alone would not save it from duplicity - see R v Molloy (1921) 2 KB 364, and s186 of the Justices Act. Ms Fraser submitted that the Information was not duplicitous. 30. The rule against duplicity, its purpose and the consequences of its breach, are succinctly set out in J.B. Bishop's 'Criminal Procedure' (1983) at p141:- " a statement alleging an offence must allege one offence only. The purpose of the rule is to avoid confusion and unfairness by ensuring that the defendant knows the charge he has to answer. Breach of the rule is regarded as a serious matter: the charge cannot proceed as laid and ANY CONVICTION BASED ON A DUPLEX CHARGE IS BAD." (emphasis mine) 31. A count in an Indictment can be duplex, in two ways: see Romeyko v Samuels (1971-2) 2 SASR 529 at pp533-4, per Bray CJ. In terms of that analysis, Mr Stewart's submission is that the Information as framed alleges more than one offence, stated disjunctively, and is therefore bad for duplicity in the sense of uncertainty. That is, he asks, which of 5 offences in Code s155 was the appellant being charged with: failing to rescue, or failing to resuscitate, or failing to provide medical treatment, or first aid, or succour of any kind? The previous question is: does Code s155 create more than one offence? 32. Separate offences are not necessarily created by the presence of "or" in the relevant provision of a statute; see Ex p Polley; re McLennan [1947] NSWStRp 27; (1947) 47 SR(NSW) 391 and Romeyko v Samuels (supra). 33. In Ex p. Polley Jordan CJ said at p392:- "The question whether an enactment creates one offence or several depends upon its subject matter and language considered in the context. (His Honour then gave some examples, and continued:) But the mere use of the word "or" does not show that it is intended to create two offences. It may sufficiently appear that it is intended to create only one offence of a particular type and to supply one or more instances." 34. His Honour then gave several examples, including:- "Where a statute made it an offence to be in charge of a motor vehicle whilst under the influence of drink or a drug, to such an extent as to be incapable of having proper control of it, it was held that there was here only one offence, that of being in charge whilst incapable, drink or drugs being instances as causes of incapacity: Thomson v Knights (1947) 1 All ER 112." 35. In Romeyko (supra) the provision in question, s107(c) of the Post and Telegraph Act 1901 (C'th), was as follows:- "Any person who knowingly sends or attempts to send by post any postal article which - ... (c) has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character, shall be liable to a penalty ..." 36. Bray CJ noted that the first question was whether s107(c) "creates - - - one or several offences." His Honour observed at p552 that where a legislative provision contains a series of alternatives:- "The true distinction ... is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow." 37. It can be seen that the use of "or" may merely specify different ways in which a single offence may be committed. The difficulties in construction are manifest, and minds may reasonably differ; see the cases collected in Archbold, Vol.1 (1992), at pp77-84, from which it is difficult to ascertain a clear principle. The approach is that the question of duplicity is one of fact and degree in each case. As Lord Diplock put it in DPP v Merriman, (1973) AC 584 at p607:- "The rule against duplicity, viz that only one offence should be charged in any count of an indictment ... has

always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the 18th century, to charge them in a single count of an indictment". 38. It is a reasonable approach to ascertain the gist of Code s155 and then decide whether its specification of rescue, resuscitation etc reveals an intention to create separate offences or merely characteristics of the same offence. 39. Code s155 (see p7) in my opinion imposes a general legal duty, novel to the law of Australia, on a person with certain ability, who "callously fails" to exercise that ability in certain circumstances; that is, it makes it an offence for any person who is able to provide certain direct or indirect assistance - "succour of any kind" - to a person urgently in need of it and whose life may be endangered if it is not provided, to callously fail to provide that assistance. It can be seen that by its nature the Code s155 offence is a crime of omission, consisting of inactivity, failing to act, and hence rather more easily regarded as "single" in nature than a crime of activity; see Ministry of Agriculture, Fisheries and Food v Nunn Corn (1987) Ltd (1990) Crim. L.R. 268. 40. The matters set out in s155 " rescue, resuscitation, medical treatment, first aid or succour of any kind " are in my opinion examples of different forms of direct or indirect assistance; in terms of Bray CJ's analysis in Romeyko they are the "forbidden characteristics" of a single act. I therefore reject Mr Stewart's submission on this point; I consider that the Information for the Code s155 offence is not bad for duplicity. THE NATURE OF THIS COURT'S APPELLATE JURISDICTION UNDER S163(1) OF THE JUSTICES ACT 41. This appeal against conviction follows a plea of guilty. The law in those circumstances is as stated in R v Murphy [1965] VicRp 26; (1965) VR 187: the appeal will only be entertained if it appears that there has been a miscarriage of justice below in that, for example, the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty, or on the admitted facts he could not in law be convicted of the offence charged. If any of these matters are shown, there has been a miscarriage of justice because a plea of guilty must flow from a genuine consciousness of guilt; and the conviction must be quashed. 42. Relying on Seears v McNulty (1987) 28 A Crim R 121, Ms Fraser submitted that this Court was exercising original jurisdiction in hearing the appeal and as a consequence the onus lay on the appellant to establish one or other of the matters mentioned in R v Murphy (supra). It is trite that in an appeal the appellant bears the burden of establishing his grounds of appeal. On an appeal against conviction following a plea, he must also establish one or other of the matters in Murphy, to have his appeal entertained. 43. It is therefore not strictly necessary that I express an opinion on the submission that this Court is exercising original jurisdiction in this appeal. However, I venture to repeat certain remarks I made in J.K. v Waldron (1988) 93 FLR 451 at pp455-6:- "Section 163(1) of the Justices Act is now in a very different form to the provision considered by the Full Court in 1981 in Messel v Davern (1981) 54 FLR 376. The Full Court there noted (at p280-281) that the corresponding provision in South Australia provided for a full appeal on both facts and law; it was held that the then s163(1) provided for an appeal by way of rehearing which could involve a hearing de novo. IT SEEMS CLEAR ENOUGH THAT THE SUBSTITUTION OF THE PRESENT S163(1) IN 1983 WAS DESIGNED TO ABROGATE THE DECISION IN MESSEL V DAVERN BY PROVIDING FOR THE APPEAL UNDER S163(1) TO BE AN APPEAL IN THE STRICT SENSE. As a result I do not think that Messel v Davern is now authoritative as to the nature of a justices appeal in this jurisdiction." (emphasis mine) 44. In my opinion this Court sitting on an appeal under s163(1) is exercising only appellate jurisdiction, and not original jurisdiction. Where it receives fresh evidence on appeal under s176A of the Justices Act, its approach to the exercise of that appellate jurisdiction is necessarily different to that where the evidence is the same as that before the Court below, because it must determine the appeal on the (now different) evidence. However, whether or not fresh evidence is received, for an appeal to succeed the appellant must establish an "error or mistake" by the Court below (s163(1)(b)); see Duralla v Plant [1984] FCA 146; (1984) 54 ALR 29 at pp41-44, per Smithers J. 45. I turn to Mr Stewart's submissions directed to establishing the grounds of appeal (pp3-4). THE SUBMISSIONS BY THE APPELLANT 46. In O'Connor v The Queen (1992) 59 A Crim R 278 the Court of Criminal Appeal (Vic.) held that a miscarriage of justice must be established before an appellate court will interfere to set aside a conviction following upon a plea of guilty. I accept that proposition; see p17. 47. Mr Stewart submitted that there was a miscarriage of justice in this case. He relied on two grounds to establish that submission:-

that the appellant did not appreciate the nature of the charge alleged or did not intend to admit he was guilty; and
that on the admitted facts he could not in law be convicted of the offence charged.
The respondent rightly conceded that either ground, if established, meant that a miscarriage of justice had occurred; see Murphy (supra.) I turn to the grounds, in turn.
Ground 1: failure to appreciate the nature of the charge, or to intend to admit guilt. Although this ground was not set out in the amended Notice of Appeal, no objection was taken and I will deal with it. Mr Stewart should have applied to amend the Notice of Appeal to incorporate the ground; see r83.06(c).
Mr Stewart submitted that O'Connor v The Queen (supra) established that advice by counsel to an accused as to how he should plead is not necessarily a bar to establishing Ground 1.
In O'Connor, the applicant was tried on 3 offences to which he pleaded not guilty. During the trial, at his counsel's request, he was re-arraigned on Count 1 and pleaded guilty. The trial judge was reluctant to accept the plea, but the trial continued. On appeal, the applicant deposed by affidavit that he had changed his plea because he had been misled by his counsel into believing that he had the criminal intent required to establish that offence. The Court referred to R v Murphy (supra), and said at p283:- "The joint judgment of Herring CJ and Adam J concluded in that case that a prima facie case of guilt was made out, and there was no sound reason for setting aside the plea of

guilty. IT WAS NOT SUGGESTED IN THAT CASE THAT THE APPLICANT WAS IN ANY WAY MISTAKEN AS TO THE MEANING OF THE CHARGE. IT WAS AS TO THE CONSEQUENCES OF A PLEA OF GUILTY THAT THE APPLICANT WAS MISTAKEN. In the same case, Sholl J delivered a separate judgment and stressed that all the decided cases depend upon whether there was in the court's opinion A MISCARRIAGE OF JUSTICE SUCH AS WOULD BE SEEN IF, FOR EXAMPLE, THE PLEA OF GUILTY STEMMED FROM A MISUNDERSTANDING OF THE CRIME TO WHICH THE PLEA WAS MADE, "OR FOR SOME OTHER REASON WHICH ENABLED ONE TO SAY THAT (HIS) PLEA WAS NOT REALLY ATTRIBUTABLE TO GENUINE CONSCIOUSNESS OF GUILT." (emphasis mine) 52. The Court allowed the appeal, inter alia, on the basis that the applicant was "mistaken as to the meaning of the charge", having been misled by his counsel into believing that he was guilty of the offence. 53. I respectfully agree with the observations in O'Connor (supra); it is clear, in my opinion, that the correct principle is as stated by Sholl J in R v Murphy (supra). I apply that principle to this appeal. 54. To ascertain if the appellant can establish a miscarriage of justice in terms of Ground 1 it is necessary to examine the proceedings in the Court and to consider the affidavit of the appellant in relation thereto. Mr Stewart submitted that the affidavit, in particular pars4, 5, 9, 10 and 11 (at pp5-6), and certain aspects of the proceedings in the Court, clearly establish that the appellant - and indeed his then counsel - did not then understand the nature of the Code s155 offence. 55. It is convenient to set out again the relevant parts of those paragraphs of the affidavit:- "4. I pleaded guilty to the offence because I understood the charge to mean simply that I did not stop and render assistance ... therefore I believed that I was guilty. 5. I did not understand this charge at the start of this case. At the start of the case I was charged with traffic offences and this offence was charged against me later on. ... 9. I now understand that there was a lot more to the charges than I understood at the time ... 10. It is possible that Mrs Pat McCrohan (his counsel) informed me as to the nature of the charge however even if she did so I did not understand it fully. I cannot recall if I was correctly informed of the nature of the charge or not. 11. It seemed to me that nobody really understood what was going on because this type of offence had not been before the courts before. Ms McCrohan was not sure what penalty I would get and could not advise me as to what would happen. I formed the belief from what Ms McCrohan told me that she did not believe that I would go to gaol for these offences ...". 56. The remainder of the affidavit sets out relevant background information. 57. Mr Stewart in addition referred me to particular aspects of the transcript of the proceedings in the Court. It is unnecessary to go into them; overall, they show that the charge of this offence clearly resulted (understandably, given its novelty) in misunderstandings by all parties concerned, as to the nature of the offence. 58. Ms Fraser submitted that the appellant cannot discharge his burden of proof by the mere assertion that he did not understand the charge fully. I accept that. Ms Fraser submitted that it was clear from the submissions in mitigation that Ms McCrohan clearly understood the nature of the Code s155 charge and properly advised the appellant in relation thereto, and therefore the appellant understood the charge. I do not accept that submission, for the following reasons. 59. It is the state of affairs at the time the Court tacitly accepted the plea of guilty which must be examined in considering whether the accused has shown that he did not understand the nature of the offence to which he had pleaded guilty. There is no single matter that establishes that the appellant misunderstood the nature of the Code s155 offence. However, reviewing the transcript, and in particular taking into account the obvious uncertainty of both counsel and the learned Magistrate as to the nature of the offence (for example, as to what the requirement of a callous intention entails), I am satisfied that the appellant misunderstood the nature of the charge when he pleaded guilty to the offence. Consequently, there was a miscarriage of justice in the proceedings before the Court. 60. Ground 2: that on the facts the appellant could not be convicted. Code s155 is set out at p7. Mr Stewart submitted that this is a novel provision in the criminal law of Australia and had not hitherto come before this Court. That is correct; it is instructive to examine the background to Code s155 before considering the submission as to what its elements require by way of proof. 61. 'Failure to rescue' provisions in the criminal law: In the history of civilization many societies have considered that a bystander has a moral obligation, as a human being, to aid a person in danger. See, for example, the biblical story of the Good Samaritan in Luke 10:30-35. Not every society has sought to enshrine this moral obligation in law, so as to impose a legal duty on the bystander to rescue. But many have; a fairly general legal duty positively to aid persons in danger is not unique either to the Code or to this century. 62. In ancient Egyptian law and in Indian law there are provisions for the punishment of those who fail to aid persons in danger. In contrast, Roman law knew little of general criminal liability for omissions to act; nor did traditional scholastic thought. The few delicts in Roman Law involving omission to act were particular in their nature: for example, the law punished the failure of a slave to defend his master from assault, the failure of a soldier to assist a superior officer captured by the enemy, and the failure of a husband to prevent his wife from becoming a prostitute. The common law follows this approach of particularity: positive legal duties are owed only to a limited group with whom a special relationship exists which creates a responsibility. Ultimately, this approach founds on conceptions of individual autonomy and liberty, with duties imposed on citizens being the minimum necessary to permit peaceful co-existence within society. It is said that the law should not enforce altruism or legislate morality. See generally on the history of criminalizing omissions to act: Graham Hughes 'Criminal Omissions' (1958) 57 Yale Law Journal 590. 63. In modern times, a 'failure-to-rescue' offence appeared first in the Russian Criminal Code of 1845 and later in the Codes of Tuscany (1853), the Netherlands (1891) and Italy (the Zanardelli Code of 1889). In the first half of this century other Codes conformed to this pattern. Usually, they make it an offence voluntarily to fail to render to a person in peril assistance which the accused could have given without incurring personal danger or creating danger to others which is certain, serious and imminent. It is said that they do not require heroism but punish indifference, and recognize the limits of what can fairly be asked of people. Since WWII almost every new Criminal Code, in the Civil Law countries, contains a 'failure-to-rescue' offence: see F.J.M. Feldbrugge 'Good and Bad Samaritans: Comparative Survey of Criminal Law Provisions' (1966) 14 American Journal of Comparative Law 630-631. As to the Codes see also A. Ashworth, "The Scope of Criminal Liability for Omissions", (1989) 105 LQR 424; and A. Ashworth and E. Steiner, "Criminal omissions and public duties: the French experience", (1990) 10 Legal Studies 153. 64. As noted, the common law countries have imposed criminal liability only for certain omissions to act; for example, in 1558 in England it was made a religious offence not to go to church. A modern example of this approach is s149(b) of the Code read with s153 and other provisions, viz:- 149. "It is the duty of every person having charge of a child under the age of 16 years or having charge of any person who is unable to withdraw himself from such charge by reason of age, sickness, unsoundness of mind, detention or other cause ... (b) ... to take all reasonable action to rescue such child or other person from such danger. 153. A person who omits to perform any duty imposed upon him by this Division is held to have caused any consequences to the life or health of any person to whom he owes the duty by reason of such omission, but whether or not he is criminally responsible therefor is to be determined by the other provisions of this Code." 65. This is clearly directed, inter alia, to the type of situation which arose at common law in R v Russell [1933] VicLawRp 7; (1933) VLR 59. The most general category of duty to act, recently recognised by the common law, arises where an accused has inadvertently created a danger, realizes its existence, and fails to take measures which lie within his power to counteract it; see R v Miller [1982] UKHL 6; (1983) 2 AC 161. In that case, Lord Diplock said at p175:- "The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal; AND IF IT EVER WERE TO DO SO THERE WOULD BE DIFFICULTIES IN DEFINING WHAT SHOULD BE THE LIMITS OF THE OFFENCE." (emphasis mine) 66. In short, the common law countries have not as yet introduced a more general offence of 'failing to rescue', on the basis that it is both unnecessary and unworkable. Hence the path-breaking nature of Code s155: in a jurisdiction whose legal system is based on Australian common law concepts and approaches there now exists an offence otherwise to be found only in jurisdictions based on the Civil Law. Its basis lies in a concept of social responsibility: where another's life is endangered, it is seen that a person is socially and legally responsible to take such steps as he is able to avert that result, even though the endangered person is a stranger to him, and he had nothing to do with creating the dangerous situation. 67. The elements of the offence in Code s155. The offence comprises 4 elements. It makes it an offence for:-

any person who, being able to provide
rescue, resuscitation, medical treatment, first aid or succour of any kind
to a person urgently in need of it and whose life may be endangered if it is not provided
callously fails to do so.
It can be seen that an accused need not have been involved in any way in creating the peril which endangered the other person's life, in contrast with the common law. Possible applications of Code s155 are cases involving motorists and others who fail to assist victims of accidents, doctors who fail to make home visits to sick or injured persons and parents who fail to summon medical attention for their sick childre. The scope of Code s155 is uncertain and broad. I turn to the (admitted) facts placed before the Court as tending to establish the 4 elements of Code s155.
The proceedings before the Court. When the case was called on, the following occurred immediately:- "MS McCROHAN: Your Worship, I appear for Andrew Salmon and this matter is ready to proceed by way of a plea. THE PROSECUTOR: Your Worship, seek leave to withdraw count

HER WORSHIP: That's the 'fail to rescue'. Count 2 withdrawn." 70. Count 2 was a charge under Regulation 138(1)(b) of the Traffic Regulations, which provides:- "Where injury ... is caused to a person ... by reason of an accident in which a vehicle is involved, the driver shall ... (b) render such assistance as the driver can at the scene of the accident." 71. Reg. 138(1)(b) is a good example of the general common law approach of imposing liability for omissions only in particular and defined situations; it stands in sharp contrast to the generality of Code s155. The transcript continues:- "The charges were read by the Prosecutor. THE PROSECUTOR: To those charge(sic) how do you plead, guilty or not guilty. THE DEFENDANT: Guilty." 72. The Prosecutor then stated the facts on which the prosecution relied; the appellant later acknowledged them to be correct for the purposes of his pleas. As far as relevant the facts were as follows: "At about 6.21 pm on 14 April 1993 the defendant was the driver of a sedan which was being driven north along Gap Road. As the defendant passed the Gap Resort Motel a child on the defendant's left-hand side ran on to the road in front of the defendant's vehicle. The defendant applied heavy brakes and swerved the vehicle towards the left in order to avoid hitting the child. The child struck the right-hand front fender of the defendant's vehicle causing the child to be thrown some distance in an easterly direction landing on the bitumen. The defendant continued driving north along Gap Road failing to stop or rendering any assistance. The child was conveyed to the Alice Springs Hospital for treatment for injuries received during the collision. The child died some 40 minutes later. The defendant drove the vehicle to the Stuart Caravan Park. As a result of information received police attended at the park at 9.24pm, some 3 hours after the accident. The defendant was spoken to and as a result arrested and held under section 137 of the Police Administration Act, conveyed to the police station where he was later spoken to in a taped record of conversation in which he fully admitted

the offences stating: 'The boy just ran out in front of me'. When asked for a reason for failing to stop (an offence under Reg.138(1)(a)) and failing to report the accident (an offence under Reg.138(1)(d)) the defendant replied, 'I panicked'. The defendant admitted to be a disqualified driver, (having lost) his licence in Victoria in January 1993 for a period of 15 months. When asked for a reason (why he was driving that day) the defendant replied, 'I had to get to work'. The defendant was not recorded as having a Northern Territory driver's licence. At the time of the offence Gap Road (was) a public street, et cetera, Your Worship. The vehicle was inspected by a transport inspector and found to be unroadworthy being the back left tyre is bald. The left indicator doesn't operate, Your Worship. MS McCROHAN: Those facts are admitted except Mr Salmon says the left-hand indicator worked before that night." 73. Ms McCrohan was then called on, and made submissions in mitigation. THE ADMITTED FACTS AND THE ELEMENTS OF THE CODE S155 OFFENCE 74. Element 1 (p26) This element delineates the person on whom the 'duty to rescue' falls. 75. The width of the words "any person" is confined by the requirement that he be "able to provide" one of the forms of succour set out in element 2. To be "able to provide" is a requirement that the accused be able to provide direct or indirect assistance or help to a victim. For an accused to be shown to have this ability would appear to involve proof that he met three criteria, in terms of capacity, proximity and knowledge. That is to say, (a) the accused must have both the physical and mental capacity to provide help or assistance to the particular victim, the help required of him by law being limited by his capacity, by what he can give in the particular situation, and by what is reasonable in that situation; (b) there must be some degree of physical proximity between the accused and the victim in terms of physical presence or, possibly, in the form of communication such as a telephone; and (c) the accused must know that the victim requires aid, assistance or help. 76. The admitted facts of this case permit inferences to be drawn that the appellant is a man of average intelligence, physically able, and physically proximate to the victim at the time of the accident. The admitted facts include the following:- "The defendant applied heavy brakes and swerved the vehicle towards the left in order to avoid hitting the child. The child struck the right hand front fender of the defendant's vehicle." 77. The inference open to be drawn from this is that the appellant must have realised at the time, that is, had actual knowledge, that the accident would be likely to result in potentially serious injuries to the child. This inference is reinforced by the fact that the appellant was travelling on a bitumen road at "about 50 kilometres" per hour at the time of the accident. 78. Element 2 (p26). The ambit of the assistance or help envisaged by the section is very wide. 79. In the Oxford Dictionary, 2nd ed., the following meanings are assigned to the words used:- ""Rescue" - to deliver or save (a person or thing) from some evil or harm; to afford deliverance or safety: "Resuscitation" - restoration to life; restoration of consciousness in one almost or apparently drowned or dead; revival, restoration or renewal of something to life. "First aid" - assistance given on the spot in the case of street accidents and the like, before proper medical treatment is procured. "Succour" (of any kind)

aid, help, assist; to give assistance to; shelter, protection."

The words are to be read noscitur a sociis, in their context. They envisage a person either directly or indirectly aiding or assisting a victim. Direct assistance or help is where, for example, a person personally administers first aid, resuscitation, medical treatment, or simply drags the victim to safety. Indirect assistance or help is given where, for example, a person telephones for an ambulance or merely calls for help.
As to element 2 Mr Stewart submitted:
that the prosecution had failed to discharge its onus of proof with respect to element 2, as the admitted facts did not bear upon proof of what this element entailed; or
that even if the admitted facts were relevant to proof of element 2, the accused was unable to assist in any of the ways envisaged by the element and that inability constitutes a defence to Code s155.
In support, Mr Stewart noted that Ms McCrohan had submitted that " ... (the accused) didn't have any first aid skill." Further, he relied on paragraph 15 of the appellant's affidavit (p7).
Ms Fraser submitted that the admitted facts establish element 2. She noted in support that it was admitted that:- "The defendant continued driving north along Gap Road failing to stop or render any assistance."
I reject Mr Stewart's submissions. I accept Ms Fraser's submission that the admitted facts permit a clear inference that the appellant, at the time of the accident, was a compos mentis responsible adult driving a motor vehicle on a road, in a position to render either direct or indirect assistance or help to the child, and capable of so doing. The fact that bystander went to the child's aid after the appellant left the scene of the accident does not retrospectively absolve the appellant from performance of his duty to provide such aid or help.
Element 3 (pp26-27) It is incontestable that a young child - or indeed any person - hit by a motor vehicle travelling at approximately 50 kilometres per hour is a person "urgently in need" of some type of assistance. Mr Stewart, rightly in my opinion, did not contest this proposition. "Urgently" connotes that the danger to life must be such as to require immediate action.
As to the second limb of this element - "whose life may be endangered if (the assistance) is not provided" - Mr Stewart submitted that the admitted facts did not bear upon its proof. He submitted that:- " ... there was no evidence whatsoever that the life of the deceased was or might have been endangered by any failure to provide any of these enumerated items (of assistance)."
This submission is based on the premise that a causal link must be established between the failure to rescue and the endangering of life.
Mr Stewart submitted that the injury the child sustained on impact with the motor vehicle was of a fatal nature and nothing the appellant could have done by way of aid or assistance would have prevented the child from dying. Consequently, the argument ran, the child's life could not be said to have been endangered by the appellant's failure to provide aid or assistance, for death was inevitable. The child died some 40 minutes after the accident. In effect, the submission was that a person is not required by Code s155 to render aid in a case where that aid cannot achieve its purpose, that is, to save the victim's life.

which further support paragraph 8 of the affidavit. (The newspaper articles were admitted into evidence in the Court and were before this Court, without objection by Ms Fraser)

The inference that the appellant panicked is not consistent with what is required to satisfy the requirement of "callously fails". When a person panics he has at that time no ability consciously and deliberately to choose to help or assist; Code s155 requires that it be proved that a person deliberately and consciously chose not to provide help or assistance. In Crack v Post (supra) Macrossan J at p322, in respect of the 'defence' of panic advanced in that case, where a plea of not guilty had been entered, that:- "It is possible to imagine a shock so intense and overwhelming that FOR A BRIEF PERIOD a driver of a vehicle MAY BECOME EFFECTIVELY PREVENTED FROM EXERCISING HIS WILL AND, IN THIS SENSE, ALSO FROM CONTROLLING HIS ACTIONS ... " (emphasis mine)
I respectfully agree. The degree and duration of any panic which the accused felt were left unexplained in this case by his plea; the question whether there had been operative panic to an extent which involved loss of will on his part, and the length of any period during which the panic lasted, was not properly addressed. Further, it is not clear that the Court gave full consideration to the application of the community standards I have mentioned, when considering whether his failure was callous though her Worship noted "the abhorrence, with which the community reacts to these offences", and that the accused's offending was "against normal human decency."
The foregoing are the reasons for orders nos. 1 and 2 made on 12 August 1993 (pp1, 2). As a result, it is not necessary that I deal with Grounds 4 to 7 inclusive, or Ground 10, as set out in the amended Notice of Appeal (pp3-4). I turn to the other appeal, against the severity of the sentence of 4 months imprisonment for failing to report the accident; see Grounds 8-12 (p4). SENTENCE IMPOSED FOR OFFENCE UNDER REG138(1)(D OF THE TRAFFIC REGULATIONS: FAILING TO REPORT ACCIDENT
It is convenient to set out the relevant provisions of Regulations 138(1)(d) and 147 of the Traffic Regulations, viz:- 138 "(1) Where injury ... is caused to a person ... by reason of an accident in which a vehicle is involved, the driver shall - ... (d) ...report the accident ... to a member of the Police Force at the nearest practicable police station as soon as practicable after the accident and in any event, not later than 24 hours after the accident." 147 "A person who contravenes or fails to comply with a provision of these Regulations is liable on conviction for an offence against the provision to a penalty not exceeding $2,000 or imprisonment for 6 months."
Mr Stewart relied on the 4 grounds of appeal, nos. 8, 9, 11 and 12 in the amended Grounds of Appeal (p4), taken together, to submit that the Magistrate had erred in exercising her sentencing discretion, in sentencing the appellant to 4 months imprisonment for the offence under Reg.138(1)(d). THE GENERAL PRINCIPLES APPLICABLE TO APPEALS AGAINST SENTENCE

ASSESSING SOME SALIENT FEATURE OF THE EVIDENCE. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error - - -". (emphasis mine). SUBMISSIONS THAT THE SENTENCE WAS MANIFESTLY EXCESSIVE 120. In R v Holder and Johnston (1983) 3 NSWLR 245, Street CJ said at p254:- "It can be acknowledged that the level of inviolability allowed in earlier times to the sentencing judge's discretion has tended to be lowered in modern times ... The lowering of the threshold barriers at which excess or

inadequacy becomes manifest, is an observed and established tendency which meets both community expectations as well as the requirements of justice. THE APPEAL COURT EVALUATES THE PERMISSIBLE RANGE OF SENTENCE IN THE LIGHT OF ALL THE ADMISSIBLE CONSIDERATIONS AFFECTING THE CASE IN HAND, AND DRAWING UPON ITS OWN ACCUMULATED KNOWLEDGE AND EXPERIENCE. A sentence lying outside that range will (in the case of a convicted person's appeal), ... be corrected. There is no warrant for applying a different approach in principle in detecting the threshold barrier between a convicted person's appeal and a Crown appeal." (emphasis mine) 121. In Raggett (supra), a Crown appeal against inadequacy, after referring to the classic formulations in the case-law, I said at p47:- "In general, then, to establish the existence of the necessary (unidentified) error THE CROWN MUST SHOW THAT THE SENTENCES ARE NOT JUST ARGUABLY INADEQUATE BUT SO VERY OBVIOUSLY INADEQUATE THAT THEY ARE UNREASONABLE OR PLAINLY UNJUST ." (emphasis mine) 122. The same principle applies in an appeal against severity, substituting "appellant" for "Crown", and "excessive" for "inadequate". 123. Mr Stewart was unable to establish if there was a sentencing "tariff" for the offence under Reg.138(1)(d), due to the lack of statistical material, but he submitted that since the maximum sentence for this offence is 6 months, a sentence of 4 months was warranted only if the appellant's case was properly categorized as falling within the "worst case" category. He submitted that it was not within that category. In support he relied on 4 submissions, to which I now turn. First, however, I observe that a sentence which is two thirds of the statutory maximum does not, ipso facto, appear to indicate that the sentencer treated the case as one within the "worst case" category, for sentencing purposes. 124. First, Mr Stewart submitted that under Reg.138(1)(d) the appellant had 24 hours to report the accident, and his offence became "extremely bad" only after 24 hours had elapsed. The inference to be drawn from this submission was that as the appellant was located some 3 hours after the incident, the case was not of a "worst case" type. 125. I reject this submission. Reg.138(1)(d) requires that the driver "report the accident ... as soon as practicable after the accident and in any event, not later than 24 hours after the accident". This imposes a primary obligation on a driver who is involved in an accident to report it as soon as the circumstances allow him to do so. This is a question of fact in each case. 126. Her Worship in sentencing the appellant referred to this aspect, as follows:- "You compounded your wrong of initially driving away by not reporting to the Police. Some 3 hours later the Police located you. So rather than travelling immediately to the Police Station, you continued home BUT YOU DID NOT MAKE ANY REPORT TO THE POLICE IN THE NEXT 3 HOURS, UNTIL SUCH TIME AS THEY ACTUALLY FOUND YOU. ONE WOULD'VE HOPED THAT ONCE THE INITIAL PANIC HAD WORN OFF THAT YOU WOULD'VE MADE YOUR WAY TO THE POLICE STATION, AND 3 HOURS IS A SUBSTANTIAL TIME IN WHICH NOT TO TAKE THAT ACTION." (emphasis mine) 127. Clearly, her Worship took into account the time aspect in exercising her sentencing discretion as she was bound to do. On the facts, it was clearly open to her Worship to form the view that this case involved a serious breach of Reg.138(1)(d). 128. Second, Mr Stewart submitted that the appellant had not made any attempt to leave the jurisdiction or avoid culpability or responsibility when the Police spoke to him. I accept that. I reject the thrust of this submission, that inadequate weight was given to this factor, on the basis that her Worship appears to have taken into account Ms McCrohan's submissions as to the appellant's otherwise excellent character and behaviour, and his lack of "culpability" as regards causing the accident. Her Worship said, at p7 of the transcript of proceedings of 19 May 1993:- "As indicated earlier, there was nothing in your driving which compounded the offence and you had nothing to drink prior to the accident. I'm told on a personal basis that you have been devastated by the commission of these offences, and that you constantly suffer from flashbacks of the incident. ALL OF THOSE FACTORS I MUST TAKE INTO ACCOUNT. ... EVEN ALLOWING FOR YOUR PREVIOUS GOOD CHARACTER, except for the offence in January 1993 ... (emphasis mine). 129. Her Worship weighed these factors against, inter alia, the fact that the appellant did not take a positive step in reporting the accident to the Police, viz:- "One would've hoped that once the initial panic had worn off that you would've made your way to the Police Station, and 3 hours is a substantial time in which not to take that action." 130. In my opinion, her Worship gave sufficient weight to the appellant's otherwise general good character and behaviour, and to the lack of his culpability, as far as causing the accident was concerned. Obviously the fact that the appellant failed to take a positive step to report the accident weighed heavily against him with her Worship, and it was competent for her Worship to make that judgment. 131. Third, Mr Stewart submitted that the appellant failed to report the accident, because he had panicked. Earlier in his submissions Mr Stewart stated that the appellant's panic was based on fear for his own safety; the two newspaper articles in evidence, tended to show a belief in Alice Springs that if a driver is involved in an accident, and gets out to assist a person injured, he is putting his own life at risk, because he may be attacked by others present. 132. The short and complete answer to this submission is, as her Worship noted, how did this fear, if true, prevent the appellant from driving to the nearest Police Station to report the accident? To rely on any such belief as an excuse for not reporting the accident is clearly not sustainable. I consider that in relation to this charge, her Worship gave sufficient weight to the fact that the applicant panicked. 133. Fourth, Mr Stewart submitted that in imposing the sentence of 4 months imprisonment her Worship bore in mind the tragic consequences of the accident, even though she expressly stated she was not. He submitted that this conclusion flowed from the severity of the sentence itself. 134. In reply, Ms Fraser submitted that her Worship's remarks must be taken at their face value; that is, that her Worship had specifically turned her mind to this aspect, and had separated in her mind the separate tragedy of the child's death from the matters relevant to sentencing for this charge. Ms Fraser conceded that the sentence was "heavy or harsh ... in the circumstances", but submitted that none of the matters raised by Mr Stewart were of sufficient weight, singly or together, to show that the exercise of the sentencing discretion had miscarried. Ms Fraser submitted that her Worship had given very thoughtful and reasoned comments, in exercising that discretion. 135. I consider that the sentence imposed was a heavy sentence. The appellant bears the onus of showing that the sentence is obviously excessive, plainly unjust or unreasonable, and not merely that it is arguably excessive. I do not consider that the appellant has discharged that onus. 136. I come next to Mr Stewart's submissions that her Worship had placed too much weight on the need for general deterrence, in imposing the sentence. GENERAL DETERRENCE 137. (i) The general principles applicable. Fox and Freiberg in their 'Sentencing: State and Federal Law in Victoria', (1985) at p446 set out the purpose of general deterrence as follows:- "General deterrence sees the sanction as demonstrating to prospective offenders the consequences of violating the law; if persons are persuaded to refrain from crime, public protection is advanced. In Williscroft[1975] VicRp 27; , (1975) VR 292, 298 -299, the majority cited with approval the passage from the New Zealand case of Radich (1954) NZLR 86 which stated " ... ONE OF THE MAIN PURPOSES OF PUNISHMENT ... IS TO PROTECT THE PUBLIC FROM THE COMMISSION OF SUCH CRIMES BY MAKING IT CLEAR TO THE OFFENDER AND TO OTHER PERSONS WITH SIMILAR IMPULSES, IF THEY YIELD TO THEM, THEY WILL MEET WITH SEVERE PUNISHMENT." (emphasis mine) 138. At p447 they go on to say:- "Deterrence would seem to depend on the ability of the potential offender to weigh up, in a rational manner, the advantages and disadvantages of a course of conduct and to base his actions upon the results of his reasoning. On this basis, it makes sense for the courts to regard the question of general deterrence as important where the offender is a person of intelligence, mature judgment and involved in planned acquisitive crime. Where crimes are committed by those who appear to be less deterrable, the deterrent function of the sentence may be reduced, though not completely excluded." 139. And at p448:- "IN DETERMINING THE PRECISE WEIGHT TO BE GIVEN TO THE DETERRENT ASPECT OF A SENTENCE A CONFLICT MAY ARISE BETWEEN THE DIFFERENT REQUIREMENTS OF SPECIAL AND GENERAL DETERRENCE. ... However, CONSIDERATIONS OF GENERAL DETERRENCE MAY DICTATE A HEAVIER PENALTY." (emphasis mine) 140. I agree with these general statements. I turn to the submissions. 141. (ii) The submissions. In sentencing the applicant her Worship stated at p7:- "I HAVE FORMED THAT VIEW (that a sentence of imprisonment must be imposed) ON THE BASIS THAT OFFENCES OF THIS KIND MUST BE DETERRED. Whilst I consider that it is highly unlikely that you are ever likely to be involved in an offence similar to this again, (I consider) that other members of the public must be deterred from offending of this kind -- - - I do not consider that it would be appropriate to suspend the operation of the sentence and you will have to serve a period of imprisonment." (emphasis mine) 142. Mr Stewart submitted that her Worship here had in mind general, not special, deterrence; that is clearly correct. 143. He relied on the passage at p447 Fox and Freiberg set out above, to submit that her Worship had given too much weight to the aspect of general deterrence, which is applicable when the offence is prevalent in the community. He noted that there was no suggestion that the subject offence was prevalent in the community and submitted that the appellant should not be made a scapegoat for others. However, this submission focuses only on one situation when a Magistrate can take general deterrence into account; it is not the only situation. 144. Ms Fraser submitted that the two newspaper articles tendered in evidence support an inference that the offence was prevalent and accordingly her Worship rightly had the aspect of general deterrence in mind. 145. Mr Stewart, in reply, submitted that the articles showed nothing more than that drivers who had stopped after an accident had been assaulted. 146. I consider that the newspaper articles do not support an inference that this type of offence is prevalent in the Alice Springs community, though they support an inference that there is a potential for this type of offence to occur in the future. This inference is supported by the arguments on which Mr Stewart relied to establish that the appellant left the scene of the accident due to the fact that he panicked; his panic was based on fear which, he asserts, was created by the contents of those newspaper articles or similar articles. 147. I consider that her Worship was entitled when sentencing to take into account the need for general deterrence; in the circumstances of this case, I consider that she gave that aspect the appropriate weight, as the matter was serious. The Court must try to prevent offences such as this becoming contagious. THE EFFECT ON THE PENALTY OF THE VICTIM BEING A CHILD 148. Mr Stewart's other main argument was that her Worship misdirected herself in holding that where a child was involved in an accident, the penalty should be the greater. 149. In the course of sentencing, her Worship said:- "All of those factors I must take into account. The offences for which I must deal with you, and in particular the offence of failing to rescue, (that is, the Code s155 offence) is an extremely serious offence. IN MY VIEW THE FACT THAT A CHILD WAS INVOLVED MAKES IT MORE SERIOUS THAN HAD AN ADULT BEEN INVOLVED." (emphasis mine) 150. Taken in isolation this passage lends weight to Mr Stewart's submission. However, Ms Fraser cited the immediately following paragraph:- "The Criminal Code itself, in penalties imposed for offences, recognizes that offences involving children call for the imposition of a higher penalty than those involving an adult; and in this particular case I consider that where

you know that you had hit a child, that you must have recognized that there was a good chance that the child had in fact been badly injured, in fact more so than had an adult been involved" 151. She submitted that this showed that her Worship was not directing herself that she was required to give the appellant a higher penalty simply because the victim was a child; rather, her Worship was simply referring to the mores of this community - that offences involving a child are more serious than offences involving adults, a matter demonstrated by the Code. Ms Fraser submitted that was a relevant matter to which her Worship must turn her mind when addressing the particular circumstances of this case, in weighing up the competing matters for her consideration in determining whether or not to impose a sentence, and whether or not to suspend that sentence. Ms Fraser submitted that the reference was not made in terms of whether or not the penalty should be heavier but that it showed that it was a more serious example of the breach. 152. Placing the two paragraphs set out above in their context and the paragraphs subsequent to them, I consider that no misdirection was involved. That view is supported by the observation very correctly made by her Worship earlier in sentencing - "In sentencing you I do not consider that I am able to take into account the terrible consequences of the accident" 153. Mr Stewart also submitted that her Worship did not give sufficient weight to the matters pointing towards the suspension of the sentence. He submitted that: (1) insufficient weight had been given to the appellant's remorse, manifested by the references by his counsel to his being unable to sleep and other matters in his contemplation (including suicide); and (2) the appellant had, apart from a drink driving offence, an impeccable record but insufficient weight had been given to this. 154. I turn to these submissions. 155. (1) Insufficient weight given to the appellant's remorse. Her Worship said in sentencing, inter alia:- "I'm told that on a personal basis that you have been devastated by the commission of these offences, and that you constantly suffer from flashbacks of the incident. ALL OF THOSE FACTORS I MUST TAKE INTO ACCOUNT. (emphasis mine) 156. It is clear that her Worship expressly referred to the matter of remorse, and has given it consideration in the exercise of her sentencing discretion. I reject Mr Stewart's submission, and consider that it has not been shown that her Worship gave insufficient weight to the appellant's remorse. 157. (2) The aspect of the appellant's previous good character. Mr Stewart, on this aspect, relied on her Worship's comment in sentencing:- "Although that offence (a previous offence, of drink-driving) is not a similar offence to the ones for which I must now deal with you, it does indicate some irresponsibility as far as driving is concerned." 158. He submitted that her Worship had given insufficient weight to the appellant's previous good character and his lack of any responsibility for the accident. 159. I reject this submission. Reference to the transcript of proceedings of 19 May 1993, clearly shows that her Worship was mindful that the appellant was not to blame for the accident, and was mindful of his remorse for the accident and its consequences, and of his previous good character except for the drink-driving offence in January 1993. 160. Her Worship's comment as to "irresponsibility" must be seen in its context. Her Worship was there making an observation as to the applicant's character, and it was an observation fairly open to her Worship on the facts presented in mitigation. The submission that her Worship gave insufficient weight to the appellant's previous good character, or too much weight to the irresponsibility of the appellant as regards driving, misconstrues the thrust of her Worship's comment. SHOULD THE SENTENCE NEVERTHELESS HAVE BEEN SUSPENDED? 161. Finally, Mr Stewart dealt with Ground 12 (p4): that the learned Magistrate erred in not exercising a discretion to wholly suspend the service of the sentence of imprisonment. Mr Stewart submitted that, on the basis of the need for general deterrence, her Worship believed she was required to imprison the appellant. He submitted that general deterrence was not to be taken into account in the circumstances of this case, as the offence was not prevalent; consequently, her Worship ought not to have imprisoned the appellant, but suspended his sentence. 162. I have dealt with this aspect earlier in the judgment (at pp49-51). I concluded that given the circumstances of the case, her Worship was entitled to have regard to the factor of general deterrence, and gave it due weight. I consider that her Worship gave cogent reasons for her decision to imprison, and the factor of general deterrence was a factor to which she was entitled to give due weight in reaching that conclusion. Accordingly, I find that her Worship did not err in exercising a discretion not to suspend any part of that sentence. 163. The foregoing are the reasons for making order No.3 (p2) on 12 August 1993.

Post and Telegraph Act 1901

Salmon v Chute & Anor [1994] NTSC 21; 4 NTLR 149; 94 NTR 1; 115 FLR 176; 70 A Crim R 536

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Salmon v Chute & Anor [1994] NTSC 21; 4 NTLR 149; 94 NTR 1; 115 FLR 176; 70 A Crim R 536 (22 February 1994)

Parties

Legislation Cited (2)

Cases Cited (10)