Solicitors for the Respondent: Director of Public Prosecutions

This is an appeal pursuant to s 163(1) of the Justices Act , against the severity of certain sentences imposed by the Court of Summary Jurisdiction at Darwin on 26 November 1996.

The appellant was charged with and then pleaded guilty to a number of offences in relation to two separate incidents. In relation to file number 9610718 the appellant pleaded guilty to the following charges which related to the 17th May 1996: 1. Assaulting Constable Akin in execution to his duty;

Aggravated assault upon Constable Gallaway in the execution to his duty, the circumstance of aggravation being that he thereby suffered bodily harm;

Assaulting Constable Hair in the execution of his duty;

Resisting a member of the Police Force in the execution of his duty;

Unlawfully possessing a plastic bong and hose for use in the administration of a dangerous drug; and

Being within a public place did use objectionable words which offended or caused substantial annoyance to another person. In relation to file number 9613208 the appellant was charged and pleaded guilty to the following offences which related to the 4th June 1996: 1. Unlawfully entering a dwelling house with intent to commit a crime, namely stealing;

2. Stealing property (including fire arms) and other personal property to the value of $8,060.

3. Unlawfully cultivating a prohibited plant namely cannabis, the number of prohibited plants amounting to a trafficable quantity. This offence occurred on the 18th of June 1996.

4. Obtaining property namely cash by deception. This offence occurred on the 5th June 1996. The learned Magistrate imposed the following sentences:

In relation to file number 9610718: count 1: imprisonment for 7 days;

count 6: a fine of $280. The learned Magistrate ordered that the sentences of imprisonment in relation to counts 1, 2 and 4 be served concurrently and that the sentence of imprisonment in relation to count 3 be served cumulatively on count 2. The learned Magistrate also ordered that the appellant pay $45 restitution to the Clerk of Courts to be paid out to Constable Gallaway in relation to damage to his clothing which occurred during the assault upon him.

In relation to file number 9613208 the learned Magistrate imposed the following sentences: Count 1 imprisonment for 10 months cumulative upon sentences imposed in relation to file number 961071:

count 2: imprisonment for 5 months concurrent with count 1;

count 4: imprisonment for 1 month concurrent with count 1; In relation to count 2 the appellant was ordered to pay restitution in the sum of $1,660. In relation to count 4 the appellant was ordered to pay $55 restitution.

The total sentences therefore involved the following: 1. Total head sentences of 20 months imprisonment. The learned Magistrate further ordered that the sentences be suspended forthwith upon the appellant entering into a recognizance with conditions and supervision.

Restitution orders totalling $1,760. The appellant has appealed all of these sentences.

At the hearing of the appeals the appellant amended the grounds of appeal to read as follows: "1. The sentence (sic) was manifestly excessive.

2. The learned Magistrate failed to give adequate weight to matters personal to the appellant and to the fact that the appellant has a significant intellectual disability and serious psychological problems.

3. The learned Magistrate erred in finding that the appellant had failed to assist the authorities;

4. The learned Magistrate erred in finding any failure to cooperate with police was an aggravating factor as far as sentencing was concerned.

The learned Magistrate erred by failing to having any or sufficient regard to s 40(3)(5) of the Sentencing Act .

The learned Magistrate failed to give any weight or sufficient weight to the principles of proportionality.

The learned Magistrate failed to give due weight to factors of rehabilitation.

The learned Magistrate gave too much weight to specific and general deterrence.

The learned Magistrate erred in imposing restitution order having regard to the fact that the appellant is an invalid pensioner". The facts in relation to file number 9610718 were not in dispute. On the evening of 17th of May 1996 at about 6.55 pm the appellant was seated on a bench outside the Palmerston Florists on the Francis Mall in Palmerston. At this time he had a plastic coke bottle bong which was filled with smoke from burnt cannabis between his feet. He also had several pieces of plastic hose with him.

At this time, police who were in plain clothes and carrying on a foot patrol past the Palmerston Markets, located the appellant with a bong and after identifying themselves as police requested that he stand up and submit to a search of his pockets.

The defendant stood up and told police to "fuck off" as they had no warrant. Police then advised the appellant that he was under arrest and at this time he pushed out at a female Constable, Constable Akin. He pushed her aside and in a loud voice told police to "fuck off" as he ran along the mall. With police in pursuit towards the markets, the appellant then turned on police and as he was approached by Senior Constable Gallaway, he threw a punch at his head. He was tackled and both fell to the ground. The appellant was struggling violently and screaming to police to "fuck off" and to let him go.

The appellant then bit Gallaway on the right forearm causing severe bruising and puncturing of the skin. Whilst Akin attempted to assist, the appellant kicked out at her with both feet. After some struggle he was restrained and handcuffed. He continued to scream in a loud voice things such as "fuck off, fucking pigs, fuck you", repeatedly, despite being advised that he should desist using such language.

At this time there was a large group of market patrons in the area who clearly heard the appellant's shouting. The appellant, when restrained, was placed in the rear of a police van and as the rear door shut, he leaned forward and spat on Constable Hare, who had also come to assist. The spittle struck him on the hair and spectacles and on the right shoulder area of his shirt.

The appellant was conveyed to Berrimah Police Watch House. He continued to shout abuse at police in a loud voice whilst being transported and flung himself about in the rear of the police vehicle, striking the walls and roof of the vehicle with his body and feet.

After he had settled down he was lodged in the cells and later charged and bailed. At the time of the offences, Francis Mall at Palmerston was a public place open to and being used by the public; there was several hundred persons in attendance and there were children attending at the YMCA which operates near where the appellant was initially spoken to.

As a result of the appellant's actions Constable Akin received no injuries; Constable Gallaway received gravel rash to his knees and elbows, severe bruising and puncture marks to his right forearm where he was bitten; his trousers were torn and they were valued at $45. Constable Hair received no injury.

The coke bottle the appellant had between his feet had been adapted as a device to smoke cannabis. It had smoke in it at the time and smelt strongly of burnt cannabis.

In relation to the file number 9613208 the facts were that at some time between 8.00 am and noon on the 4th of June 1996 the appellant, in company with two other persons unknown, drove to Lot 2386 Spencer Road, Darwin River. The appellant gained entry to a house by opening a sliding glass door to the bedroom. After gaining entry the offenders went from room to room in the house removing property and placing it in a vehicle before decamping.

The property taken included 3 firearms, a depth sounder, 70 CDs, a CD player, a Sega Mega Drive, 2 Sega games, assorted clothing, shoes, alcohol and jewellery to the total value of $8060.

On Wednesday the 5th of June the appellant sold 23 of the stolen CDs to a second hand trading shop. He received $55 for that property. The compact discs were subsequently recovered from the trader.

On the 18th of June 1996 at about 8.00 pm a search warrant was executed at the address where the appellant was living at the time. During the course of the search a Winchester lever action rifle which had been stolen from Spencer Road was located in the boot of the vehicle at the residence. Also 8 CDs which had been stolen were located.

At the completion of the search the appellant was arrested and conveyed to the Peter McAulay Centre and in a video/audio taped record of interview, he stated that he had been given a lift by an unnamed male person who had driven into the premises and unlawfully entered the house. He made admissions to entering the premises but denied taking all of the property, stating that he only took CDs and some alcohol.

In relation to the Windchester lever action rifle, in a record of interview the appellant stated that he had purchased that gun for $200 from some male person of unknown description or identity whilst intoxicated at the Litchfield Pub. He was unable to say when he purchased the gun.

During the search of the premises which was at Darwin River Dam Road on the 18th of June, a number of cannabis plants were located ranging in height from 1.5 metres tall and also seedlings. They were located growing in pots in various locations around the block. In his record of interview the appellant admitting ownership of 13 plants. He admitted to growing the plants from seeds, he admitted tendering to the plants and said that they were for his own personal use.

The appellant's previous offending was relatively minor. On the 11th of October 1991 on a charge of stealing the appellant was released on a 12 month good behaviour bond without a conviction. On the 18th of August 1994 on a charge of receiving the appellant was convicted without passing sentence and ordered to perform 80 hours community service.

The learned Magistrate had available to him a pre-sentence report, a psychological report prepared by Ms Hilary Berry, a psychological report prepared by a Mr Damien Howard, an internal memorandum by a Ms Wanka of the Department of Housing and Local Government addressed to "Out Of Turn Committee" dated 29th of July 1996 recommending that he be provided with housing commission accommodation on a priority basis.

The appellant's personal circumstances indicate that he was born on the 22nd May 1974 and was 22 years of age and the time of sentencing. He was born in Darwin and after Cyclone Tracy his family was evacuated to Queensland where they lived for 4 years before returning to Darwin to live. Whilst in Queensland he was diagnosed as having difficulties with his speech. Upon the return of the family to Darwin he was assessed by a speech therapist who recommended that he undergo an extensive speech program. He attended that program for several months but it appeared that he was forced to cease the therapy. He appears to have developed more slowly than children of a similar age and to have suffered from learning difficulty whilst at school. After leaving school in late 1990 he commenced employment as a kitchen hand but following transport difficulties was forced to resign. He then obtained employment with the CSIRO in April 1991 as a laboratory assistant but after several weeks that employment was terminated. In 1993 he obtained employment as a banana farm hand and remained there for 3 months full time and a further 12 months on a casual basis but due to transport difficulties was unable to continue. In 1995 he obtained employment at a melon farm in the Katherine region but left after a week. Thereafter he worked at a mango plantation for a period of 4 weeks until the end of the season. At this time he returned to Darwin and applied for a disability allowance.

The report of the psychologist Mr Damien Howard was prepared in relation to that application, and is dated 6/5/96. It appears that he was subsequently granted a disability pension from the Department of Social Security of $360 a fortnight. He was also provided with an "out of turn" allocation of a flat by the Department of Lands and Housing following ongoing conflict with his family. This occurred after he had been arrested for these offences. Since moving into the flat the appellant had progressed in terms of budgeting his finances, shopping and maintaining himself. It appears that the appellant had had difficulty getting on with his father who was unable to accept the appellant's disabilities.

The appellant was not a heavy alcohol user but was a heavy user of cannabis, smoking between 2-15 bongs a day depending on availability. The appellant claimed that a bong made him feel calm and relaxed, helped him to think more clearly, made him feel better within himself and more important. The information available indicated that he had become a regular user of cannabis at about the age of 18. It appears that he spent much of his money on the purchase of cannabis and alcohol and applied the proceeds of his crimes in the same manner. The psychological assessment of Mr Howard indicated that he had a "significant intellectual disability" as well as "serious psychological problems". The report of Ms Berry indicated that he "appears to have below average level of intellectual functioning". There is no evidence of any mental disorder of either a psychotic or affective nature. He suffered from very low esteem and high levels of hostility although he scored low on the physical assault sub test. He also appeared to be suspicious of persons in authority.

As a result of his low self esteem he was very vulnerable to do and accept whatever necessary to have friends and be accepted as part of a group. Ms Berry recommended that if a non-custodial sentence were to be imposed, that orders could be made requiring the appellant to abstain totally from cannabis and alcohol with regular compliance monitoring; that he be assessed by an agency specialising in drug and alcohol dependency and undergo appropriate education programs; that he not associate with persons having criminal records; that he undertake an anger management program; and that he undertake a self esteem/social skills program.

It would appear that at the time of offending the appellant had a history of living on the streets and had been taken in by a family who lived in the Darwin River area. There was a suggestion that certain members of this family were notorious criminals and at least one member of the family was a co-offender in relation to the unlawful entry charge. It was submitted at the time of the offences on the 17th May 1996 he was under the influence of alcohol and cannabis and had a poor recollection of the events.

The thrust of the submission of counsel for the appellant, Mr Coates, was that the overall sentences relating to suspended sentences of imprisonment were manifestly excessive. It was submitted that taking into the account all of the circumstances of the offending and the offender, terms of imprisonment albeit fully suspended, were not warranted. Mr Coates did not complain of the community service orders imposed or the fine imposed but he also did complain about the orders made for restitution. Although Mr Coates' principle submission related to the need to impose a sentence of imprisonment at all, he also attacked some of the individual sentences.

Looking at the total offending, and bearing in mind the community service orders and the fine imposed I would not have thought a sentence of imprisonment, fully suspended, was manifestly excessive for these offences. I accept the submission made by Mr Coates, that before imposing a sentence of imprisonment which the court intends to fully suspend, the offending should warrant the imposition of a sentence of imprisonment; see Casey v Hayward (unreported, Kearney J, 12 March 1997) and s 40(3) of the Sentencing Act . I also accept Mr Coates' submission that before one could arrive at a conclusion that a sentence of imprisonment was warranted the learned Magistrate would have to satisfy himself after taking into account both the circumstances of the offence and of the offender that this disposition was required; see Casey v Howard supra per Kearney J at page 21. The objective circumstances relating to the aggravated assault upon Constable Gallaway and the unlawful entry and stealing charges were certainly serious enough to warrant actual sentences of imprisonment. Allowing for the mitigating factors including the appellant's intellectual disability, his plea of guilty and change of circumstances, I have still no doubt that the imposition of a sentence of imprisonment, albeit fully suspended, was warranted.

I accept Mr Coates' submission that the appellant's intellectual and psychological problems was a mitigating factor. It was relevant, both as to his level of culpability and to the extent to which a deterrent sentence was appropriate. But it is not the case that general deterrence has no role to play in cases of this kind. In extreme cases, where an offender is suffering from a mental disorder or severe intellectual handicap the proper application of appropriate sentencing principles may have the result that considerations of general deterrence are totally outweighed by other factors; see Neil Norman Simms (1995) 83 A Crim R 1 at 4-5; and see R v Anderson [1981] VicRp 17; (1981) VR 155. The extent to which general deterrence in the sentencing process has a role to play depends upon the level of disability which the defendant is suffering from. In Evan Lloyd Mason-Stuart [1993] SASC 4322; (1993) 68 A Crim R 163, the Court of Criminal Appeal, South Australia, was dealing with a 20 year old male who had sustained brain damage before birth, which had had a severe stunting effect on his physical growth and upon mental capacity. He was of low average intelligence but able to function in the community and held down a job, but his capacity to appreciate the nature of interpersonal relationships and sexual relationships and to appreciate the consequences of his actions appeared to be impaired. He had what the court described as a "substantial degree of diminished responsibility". He had pleaded guilty to the rape of a 12 year old girl whom he had accosted in a public place and dragged away for the purposes of committing the offence. King CJ said, at page 164: "It seems to me that the degree of the appellant's subjective responsibility is so diminished by the damage to the brain which he has suffered, that a court must try to find some way of protecting the public which does not impose the heavy burden of a long period of imprisonment, upon a person whose subjective responsibility has been so diminished.

It is a problem of reconciling the mercy which ought to be shown to a person who subjective moral responsibility is low, with the need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.

A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished.

I can see no basis upon which this court should reduce the head sentence. It is the lowest sentence which could reasonably have been imposed for a crime of this sort. Mr Kourakis, who appeared for the appellant before us, however, urged that the sentencing discretion had miscarried in that the circumstances indicated that this sentence ought to have been suspended.

I do not think that the Judge was wrong in refusing to suspend the sentence. It was a grave crime. I think it called for some punishment, and I think that whilst elements of proportionality and general deterrence may not be important in this matter, the need to deter the appellant, personally, is important. It is important that he should understand that the sort of conduct in which he engaged on this occasion cannot be tolerated and must lead to punishment." Similarly in the case of B (1993) 68 A Crim R 547, the Court of Criminal Appeal of New South Wales held that when sentencing an offender who suffers from a mental disorder or abnormality, general deterrence ordinarily is a factor of less weight than usual because such an offender is not an appropriate medium for making an example to others.

The effect of these authorities is that it is not necessarily the case that it is inappropriate to give some weight to general deterrence. The weight to be given will depend upon the circumstances and the level of the appellant's intellectual and psychological difficulties. Elements of special deterrence most certainly have a role to play, as may the need to protect the public. It is not the case that a prison sentence is inappropriate in the case of serious offending. In any event it cannot be said that the imposition of a fully suspended sentence of imprisonment has the same effect, so far as general deterrence is concerned, as an actual sentence of imprisonment. There is no authority of which I am aware which is authority for such a proposition. It would be obvious to anybody that, so far as general deterrence is concerned, an actual sentence of imprisonment is far more likely to deter others than a fully suspended one. I do not regard the provisions of ss 40(5)of the Sentencing Act to say otherwise. That provision provides that a wholly suspended sentence of imprisonment shall be taken to be a sentence of imprisonment for the purpose of all enactments except certain specified enactments. That can have no bearing upon the general deterrent effect of a wholly suspended sentence of imprisonment. So far as general deterrence is concerned I am unable to accept Mr Coates' submission that the learned Magistrate was wrong when he said that there needed to be an element of general deterrence although not as high as it would be for someone without the appellant's disabilities. It would appear from his Worship's sentencing remarks that he gave general deterrence some weight but as he fully suspended the sentences it can hardly be said to have been given very much weight at all. So far as special deterrence is concerned, the case of Mason-Stuart, supra, makes it plain that it is not inappropriate in a proper case to take special deterrence into account when imposing sentence upon a person suffering from diminished responsibility.

Although the appellant was suffering from both intellectual and psychological problems which diminished his responsibility, I would not regard his case as extreme. There is nothing to show that he was functioning at the very lowest level or that his capacity to understand that what he was doing was wrong was severely diminished.

The relevant criteria for the imposition of a suspended sentence of imprisonment were referred to by Walters J in Wood v Samuels (1974) 8 SASR 465 at pages 468-9, (approved by the Full Court in The Queen v Kruger (1977) 17 SASR 214 at 221-2.) Although there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence, the perceived seriousness and the nature of the particular offence may indicate that a suspended sentence is not warranted. As Walters J said in Wood and Samuels : "A suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of a court's clemency". Nevertheless it is important to recognise that it is inappropriate to impose a sentence which is longer than that which would otherwise be imposed, merely because the sentencer is going to suspend it; see Stevens v Giersch (1976) 14 SASR 81. There is nothing in the learned Magistrate's remarks upon sentence which indicate that this is the course which he took.

As to the suggestion that the learned Magistrate erred in treating the failure of the appellant to assist the police by revealing the identity of his co-offender and treating that as an aggravating circumstance, it is true that the learned Magistrate observed that the appellant had failed to assist the authorities in relation to his co-offenders, and that as a result, the majority of the goods had not been recovered, including 2 firearms which were at large in the community and may be able to be used for other criminal purposes. The learned Magistrate accepted that the appellant had personal fears in relation to telling on his accomplices and went on to observe that people who fall in with criminals of that type cannot expect any discount because of that fear. Nowhere in his sentencing remarks did his Worship state that this was an aggravating matter although he did raise it in those terms during discussion with counsel at the time of hearing submissions. I am not satisfied having regard to all of the circumstances that the learned Magistrate in the end did treat it as an aggravating matter. If he had done so I would agree with Mr Coates that that would be an error. A person who cooperates with the authorities can generally expect that that will be taken into account into mitigation. But a failure to cooperate with the authorities can never be an aggravating circumstance. But just because a sentencer raises a proposition with counsel, which may be wrong, does not justify the inference that he maintained the same view at the time of sentence. On the other hand the fact that the property was not recovered, or fully recovered, including the guns, was clearly a relevant matter going to the appellant's culpability. The fact that restitution is not made is always a relevant consideration.

So far as the sentences imposed for the assaults are concerned, I have no doubt that those sentences are manifestly excessive. The aggravated assault on Constable Garraway was not so serious as to warrant a sentence of imprisonment for as long as 8 months, bearing in mind the appellant's personal circumstances. I accept that assaulting police officers is a serious offence, and often an actual sentence of imprisonment is required. In general, I agree with the remarks of Kearney J in Casey v Hayward , supra, on this topic. However, to further order the accumulation of the sentence for the assault upon Constable Hair was wrong, the assaults all having occurred in the same set of circumstances. I would not have thought a total sentence of more than 3 months for the assault offences was warranted. On the other hand, I think that it is plain that the learned Magistrate scaled down the head sentence that he imposed in relation to the aggravated unlawful entry and stealing charges from that which he otherwise would have imposed, because of the totality principle. A total sentence of 10 months seems to be unduly low for those offences even allowing for the appellant's reduced culpability and level of involvement in that offending. It is apparent from his sentencing remarks that his Worship did take into account the totality principle and arrived at an overall total head sentence of 20 months which he then allocated as between the various offences in the way he did. In V.T. v Winzar (unreported 24 February 1992) I dealt with this type of problem at pages 10-12 of my judgement and indicated that even if error is shown, the court has a power under ss 177 (2)(f) of the Justices Act to dismiss an appeal if it considers that no substantial miscarriage of justice has occurred so that even if the individual sentences are able to be attacked, the appeal can be dismissed if the aggregate of the sentences imposed did not lack proportion to the total criminality involved.

In Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312 at 315-316 Nader J indicated the proper approach to be taken when sentencing prisoners for multiple offences. As his Honour then said, it is desirable that each sentence should be a fair measure of the culpability of the offence for which it was passed, and it is desirable that offences which are not in a real way connected, should in general, be the subject of cumulative sentences. His Honour went on to observe that "the overriding requirement (is) that the aggregate sentence made up of the individual sentences should not lack proportion to the total criminality of the offender's conduct. This last can fairly be regarded as a true principle of law. To fail in this respect is to impose an unjust sentence: either too lenient or too severe. From the point of view of the prisoner and the community, the aggregate sentence is of paramount importance".

In Lade's case the learned Magistrate had adopted the device of not passing any sentence for one or more of the offences to achieve an acceptable aggregate. This practice was deprecated by Nadar J but as Fox and Freiberg, Sentencing: State and Federal Law in Victoria , observe (paragraph 9.415): "The imposition of a heavy sentence in respect of one count and no sentence on the remaining counts is not unknown. The danger which inheres in reaching the desired aggregate by loading the most serious offence or by adding a number of shorter consecutive sentences is that if an appeal is taken against conviction only upon the most serious charge and the conviction is quashed, the court, notwithstanding s 569(1) of the Crimes Act , will have no power to interfere with the sentences imposed on the counts not the subject of appeal. The remaining sentences may then fail adequately to reflect the true gravity of the charges." There is little direct authority on what a court is to do if it considers that the reverse has had happened, namely, that some of the sentences imposed are excessive but that the overall aggregate sentence is appropriate. I adhere to the view I expressed in V.T. v Winzar , supra, that the court ought not to interfere if it considers that no substantial miscarriage of justice has occurred. In Harridine (1992) 61 A Crim R 201 Prior J, at 209, accepted the totality principle as an explanation for a 3 year sentence for an assault occasioning actual bodily harm which had been imposed cumulatively upon two concurrent sentences of 7 years passed for rape. His Honour said that he could not regard the 3 year sentence as manifestly excessive as an appropriate overall sentence was passed. Mullighan J, at 210-211, seems to have accepted the principle, but concluded in the end that the overall sentences for the rapes were not so low as to lead to the conclusion that they must have been reduced in accordance with the totality principle. Some further support is to be found for this approach in The Queen v Knight (1981) 26 SASR 573 at 576, and in the observations of Street CJ in Holder and Johnson (1983) 13 A Crim R 375 at 389 where his Honour said: "As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other.) The important factor is the practical significance of the sentencing order." Further, even in cases where there has been a successful appeal upon conviction in relation to one charge, in circumstances where the appellant had been convicted of a number of charges and in respect of which there were separate sentences, it does not necessarily follow that the appeal court will reduce the sentences in relation to the other offences: see Phillip Anthony Tyler (1992) 62 A Crim R 241 at 250 and R v Tideman (1975-76) 14 SASR 130 at 132 and at 136-137.

Consequently, I consider that what has to be shown is that the aggregate sentence of 20 months is manifestly excessive. In the complex circumstances of this case, this involves this Court, having evaluated objectively the total offending, the prisoner's reduced culpability, and all other relevant factors necessary to be considered to arrive at a proper head sentence, in asking the question, not whether this Court would have imposed a lesser aggregate sentence, but whether the aggregate sentence imposed was not only too much but manifestly so. As I have said, I consider the sentences imposed in relation to the assaults are manifestly excessive, and that a sentence of no more than 3 months is justified. In relation to the unlawful entry and stealing charges, I consider they are low, but as individual sentences not so low as to be manifestly inadequate, and although I myself may have imposed more, I consider that effective sentences for these offences of 17 months is manifestly excessive. Ground 1 of the appeal is therefore made out.

In relation to the orders for restitution, except for the sum of $45 ordered to be paid in account of Constable Galloway, it is apparent from the transcript that the prosecutor in the Court of Summary Jurisdiction had no instructions from either the owners of the stolen property, or from Cash Converters who paid $55 for the stolen CDs, to seek a restitution order. The power to order restitution and compensation is conferred by s 88 of the Sentencing Act , which is to be found in Division 1 of Part 5 of that Act. Ss 90(5), which is the same Division as s 88, provides: "A court shall not make an order under this Division where the person whose property was taken lost, destroyed or damaged does not consent to the order being made." It was submitted by Ms Austin, counsel for the respondent, that ss 90(5) only precludes the making of an order where the owner of the property objects. This construction overlooks the practical reality that, if the owner is not consulted at all, it cannot be determined whether the order is objected to or not. S 91(2) provides that a prosecutor is not obliged to seek such an order, and it is not the practice for owners to seek to appear before the courts in order to obtain such orders. S 97 provides in effect that orders for restitution or compensation do not affect the owner's civil rights. It is difficult to see what prejudice there is to an owner if an order is made under s 88 without the owner's knowledge or consent, or the legislative policy behind s 90(5).

Ms Austin referred me to the observations of Martin CJ in The Queen v Laterre and Sarre (unreported remarks on sentencing, 201/202 of 1995, 7 August 1996) when his Honour said: "There is no evidence before the Court as I consider is required by ss 90(5) of the Sentencing Act , that the person who suffered the damage consents to the order being made or has had the opportunity to indicate that he and/or they do not consent to such an order being made. (It) is necessary, in my view, that where it is intended to pursue an order for compensation that the persons concerned have the opportunity to exercise the rights given by that provision. I do not understand why it is there, but proper regard should be paid to it." I consider that the construction placed upon s 90(5) of the Act by Martin CJ is correct and should be followed. The orders for restitution in relation to counts 2 and 4 on file 9610718 will therefore be set aside.

I impose the following sentencing orders in lieu of the orders imposed by the learned Magistrate:

In relation to file number 9610718: Count 1: - Imprisonment for 7 days.

Count 2: - Imprisonment for 3 months. The restitution order made by the learned Magistrate is not interfered with.

Count 4: - Imprisonment for 1 month. The terms of imprisonment in relation to counts 1, 3 and 4 are to be served concurrently with that in relation to count 2.

In relation to file number 9613208: Count 1: - Imprisonment for 10 months, to be served cumulatively upon count 2 in file number 9613208.

Count 2: - Imprisonment for 5 months, to be served concurrently with count 1.

Count 4: - Convicted and fined $250. Although I consider these terms to be low, there is no appeal by the Crown, and I have decided not to interfere with them. This is a total effective sentence of 13 months.

The penalty imposed by the learned Magistrate in relation to count 3 is not interfered with. The restitution orders made in relation to counts 2 and 4 are set aside.

The sentences of imprisonment in relation to both files are suspended, as from 26 November 1996, on the same conditions as imposed by the learned Magistrate.