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[1989] NTSC 20
Supreme Court of the NT
1989-05-25
Kearney J
Original judgment source is linked above.
COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Appeal - Magistrates - sentencing - nature of appeal against exercise of discretionary sentencing power - appellate court must be satisfied of error in that exercise - Justices Act, s.163(1)(a) Appeal - Magistrates - indictable offence tried summarily - lesser maximum sentence imposed - whether "worst case" principle applies
R v Ireland (1987) 49 NTR 10 HRNG DARWIN #DATE 25:5:1989 Counsel for the appellant : M. Agresta Solicitor for the appellant : CAALAS Counsel for the respondents : C.W. Roberts Solicitor for the respondents : Solicitor for the Northern Territory ORDER Both appeals are dismissed and the sentences and non-parole period imposed on 25 October 1988 are affirmed. JUDGE1 These are appeals against the severity of sentence. The background to appeal No.126 of 1988 On 25 October 1988 the appellant was dealt with summarily before the Court of Summary Jurisdiction at Alice Springs for an offence under Code s.213(4), in that on 22 September 1988 he had unlawfully entered a building with intent to steal. He was sentenced to 2 years imprisonment and appeals against the severity of that sentence. The grounds of appeal are that the sentence is manifestly excessive, and that the learned Magistrate applied incorrect sentencing principles to arrive at that sentence. 2. The offence under Code s.213(4) carries a maximum punishment of 7 years imprisonment when tried on indictment. However, when it is dealt with summarily under s.121A of the Justices Act, the Court cannot impose more than 2 years imprisonment. So the appellant received the maximum sentence the Court could impose. Nature of appeal 3. I note that the respondent initially approached the appeal on the basis that it involved a hearing de novo. That is not correct - see the approach in Mason v Pryce [1988] NTSC 28; (1988) 53 NTR 1 at p 7, followed by Asche C.J. in Fraser v The Queen, unreported, 7 December 1988, at p 102. In this jurisdiction, to succeed on an appeal against sentence, an appellant must show that the sentencing discretion miscarried. The facts 4. The admitted facts were as follows. At about 11.25pm on 22 September 1988 the appellant and one M went to the Yeperenye Shopping Centre. The appellant smashed the door to an office on the first floor with a rock; the 2 entered, thereby unknowingly triggering a silent alarm, and broke into a cash box. The Police arrived and the 2 were arrested. M has since absconded. The cost of the damage was $380. The Court was told that the appellant was depressed at the time, had been drinking with M and had "followed" M in this crime. He was 33 years of age, came from a large family, and had been in trouble with the law at various periods of his life. In an exculpatory statement to the Court he claimed that M was the ringleader, and that he was so drunk at the time he did not know what was going on - "... all I can remember is flashing lights, and I thought I was walking upstairs, and my head was spinning." The sentence 5. In sentencing the appellant, the learned Magistrate said:- "... you cannot go on breaking into places or being otherwise dishonest with other people's money and/or property, and not expect eventually that the sentences will get heavier and heavier all the time. It is, after all, the only way that a community has of protecting itself against people who repeatedly offend, and these offences are serious. It is serious to break into a building, and its a matter that cannot be viewed leniently. ... The difficulty about your prior convictions is such that it is extremely difficult for a court to find any way of exercising leniency in your direction because of your repeated offences." 6. It may be noted that the appellant's admitted record extends for 21 years from February 1967 to March 1988, and comprises 35 appearances in courts on 91 charges found proved or in respect of which convictions were recorded; many terms of imprisonment were imposed on him of which the longest single sentence was 17 months for an attempted housebreak in 1976. The "worst case" argument 7. Ms Agresta of counsel for the appellant submitted that the Court had erred in imposing the maximum punishment it could impose, and that this error went to both grounds of appeal. There were 3 steps in the argument. First, the maximum punishment provided by statute for an offence should be reserved for the "worst" case type of that offence, that is, for the worst example of that offence ordinarily encountered in practice before the courts. I accept that fundamental proposition; see R v Tait and Bartley (1978-79) 24 ALR 473 at pp 484-5, and Mallinder (1986) 23 A Crim R 179. 8. Second, the appellant's crime was not a "worst case" example of the offence charged: he had not engaged in any pre-planning, he was not a principal, and he had not benefitted from what was clearly an unsophisticated crime. I accept as some of the relevant indicia of "worst case" examples, those identified by Vincent J. in Mallinder (supra) at p 187 viz:- "... such matters as the actual intention of the perpetrator, the precise activities in which the perpetrator engaged, the total circumstances in which the offence was committed and, of course, the consequences of the behaviour itself." It is clear that this was not a "worst case" example of the Code s.213(4) offence. 9. Third, the Court had imposed the maximum statutory punishment. For this proposition Ms Agresta relied on Freeman v Harris [1980] VicRp 30; (1980) VR 267. In that case the maximum sentence which a Magistrate's Court could impose when dealing summarily with shoplifting was 12 months; on indictment, those offences carried 10 years. The Magistrate's Court imposed concurrent sentences of 3 months on the appellant for 3 offences of this type. On appeal to the County Court against severity, the sentences were in fact each increased to 12 months, 2 being cumulative. In the Full Court, Starke J. at p 272 clearly treated sentences of 12 months as the imposition of the maximum sentence "comprehended in the Statute" and considered it was not warranted as the case was not a "worst case" type. All 3 Judges considered that the sentencing discretion had miscarried in the County Court, because the sentence was imposed to cure the appellant of drug addiction, and was not proportionate to the offence. They considered the sentence manifestly excessive. This case is cited in Fox and Freiberg "Sentencing - State and Federal Law in Victoria" (1985) at p 342 as authority for the following proposition:- "Where the maximum possible penalty is reduced because of the summary nature of the proceedings, it is wrong for a sentence to be imposed by reference to the maximum that would have applied had the accused been tried on presentment." This appears to be derived from the views of Starke J. 10. I consider that the submission that the appellant was sentenced on a "worst case" basis must be rejected. In Doyle (1987) 30 A Crim R 1 the respondent had received light sentences for a series of housebreaking offences; the Crown appealed. Stephenson J. said at pp 3-4:- "Because he was dealt with summarily the maximum penalty to which he was exposed on each charge was imprisonment with hard labour for two years. It may be that the stipendiary magistrate thought, when sentencing this respondent, that that two years' term of imprisonment had to be reserved for the worst type of breaking and entering with intent. If that were his view then with respect he was wrong. The maximum penalty for housebreaking ... is imprisonment with hard labour for fourteen years. It is my view that when housebreaking and similar offences are dealt with by magistrates ... then there may well frequently be occasions when they will impose sentences of two years' imprisonment or slightly less. A magistrate, in deciding whether to deal with a housebreaking or similar offence (summarily) should look at the spectrum of sentences up to the maximum term for the particular offence and if he elects to deal with the case summarily he may impose a penalty within that range taking care not to exceed the maximum term prescribed by s.443 namely imprisonment with hard labour for two years." I respectfully agree with the approach of Stephenson J. The effect of s.129(3) of the Justices Act 11. Mr Roberts of counsel for the respondent submitted that there was an additional reason why the sentence imposed could not be said to be the maximum sentence, reserved for a "worst case" type. Section 129(3) of the Justices Actprovides:- "(3) If it is proved or admitted that the defendant has previously been convicted and sentenced, whether by the Court of Summary Jurisdiction or the Supreme Court, to a term or terms of imprisonment not less in the aggregate than 6 months for any indictable offence or offences, the Court may, on the conviction of the defendant, inflict any punishment not exceeding the maximum fixed by law, although the punishment so inflicted exceeds the maximum allowable sentence permitted by this section or by section 121A(2), as the case may be." 12. Zelling J. held in Flentjar v Daire (1983) 32 SASR 101 that the then corresponding s.129(3) of the Justices Act1921-1981 (SA) "removes a limitation on the sentencing power of the Magistrate" and in view of the prior record of the appellant in that case, enabled the Magistrate to impose a sentence of more than 2 years. The provision was repealed in 1988 in South Australia. 13. Ms Agresta submitted that s.129(3) of the Justices Act applied only to the 6 minor indictable offences listed in s.120, and not to the offence charged. I am unable to accept that submission; I consider that the reference in s.129(3) to s.121A(2) clearly means that all indictable offences dealt with summarily with the defendant's consent pursuant to s.121A, fall within the ambit of s.129(3). I respectfully adopt the approach of Zelling J. to the interpretation of s.129(3) in the Territory. I consider that this interpretation still leaves ample scope for the operation of s.122A of the Justices Act, which provides for serious, intricate or difficult charges not to be dealt with summarily. 14. It is clear from the appellant's admitted prior record that this case falls within s.129(3), with the result that the 2-year limit on the maximum allowable sentence imposed by s.121A(2) of the Justices Act does not apply, it was within the power of the learned Magistrate to impose a sentence not exceeding 7 years, and the 2-year sentence he imposed was not a maximum sentence. The significance of recidivism 15. As to the second ground of appeal, Ms Agresta submitted that his Worship had erred in that he had sentenced on the basis that because the appellant was a recidivist his "sentences will get heavier and heavier all the time", and had therefore not taken into account the circumstances of the particular offence. 16. It is clear that (apart from express statutory provision) the law does not permit the sentence for a crime to be increased simply because the offender is a recidivist. In Veen v The Queen (No. 2) [1988] HCA 14; (1987-88) 164 CLR 465 at pp 472-1 the majority of the High Court said:- "The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No. 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the
offender: (1979) 143 CLR at pp 467, 468, 482-3, 495. ... ... It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors which is permissible." In Baumer v The Queen [1988] HCA 67; (1988) 83 ALR 8, a recent case from this jurisdiction, the High Court considered at p 13 that while the existence of a bad prior record "would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency", it would clearly be wrong, because of that record, "to increase the sentence beyond ... an appropriate sentence for the instant offence". The Court noted that "propensity may inhibit mitigation but in the absence of statutory authority it cannot do more", and concluded:- "In applying a section like s.154, (of the Criminal Code, which deals with dangerous acts) the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence." 17. It is clear from these statements of sentencing law that the upper limit of the sentencing range for a particular offence is defined by the sentence which is proportionate to the gravity of that offence. It follows that first the objective facts and circumstances of the particular offence should be considered, so as to define the upper limit, the ceiling, of the appropriate range of sentence. Next, factors which sound in mitigation, fall to be considered; and, in a countervailing way, so must any aggravating factors which bear upon the offender's culpability or which tend to negative any of the mitigating factors. Thus in Veen v The Queen (No. 2) (supra) the majority of the High Court, in concluding that the statutory maximum punishment had been properly imposed, appears to have considered that the mental abnormality of the offender, a mitigating factor, was counter-balanced by the fact that that very condition made him a danger to society when at large. Where an offender has a prior criminal record a heavier sentence cannot be imposed simply because of it, because that would involve a measure of double punishment; but the existence of such a record is relevant to factors such as character and criminal propensity, and thus may operate to negative mitigating factors. See generally the observations in R v Baumer (No. 2), unreported, Court of Criminal Appeal, 20 March 1989, and of Nader J. in R v Ireland (1987) 49 NTR 10 at pp 22-24. 18. I consider that, read in their context, his Worship's remarks about the appellant's sentences getting "heavier and heavier all the time" do not mean that he was sentencing the appellant more severely simply because of his record. It is clear from his Worship's following remarks that he took into account the fact that the appellant had committed "repeated offences" as a factor which made it "extremely difficult" to extend him leniency in sentencing. That approach accords with that indicated by the High Court. Other arguments 19. Ms Agresta submitted that his Worship had given undue weight to the sentencing objectives of retribution and deterrence and had not addressed the nature of the offence in the sense of evaluating the circumstances of the offender which went to leniency as against those which went to punishment. I do not find any substance in that argument, on the facts. 20. Ms Agresta further submitted that his Worship had erred in his approach to sentencing, when observing that it was "serious to break into a building ... a matter that cannot be viewed leniently". In my opinion there is no substance in that submission. His Worship's remarks must be viewed in their context and counsel for the defendant had just concluded his remarks by asking that the Court deal with his client "as leniently ... as the Court can in these circumstances". In his ex tempore remarks on sentence his Worship clearly had that request in mind. 21. No information was placed before me as to the current range of sentences imposed for comparable offences of this type. In the absence of such information as to the current tariff, which should normally be furnished when an appellant contends that a sentence for an offence which is frequently charged is manifestly excessive, I am unable to say that this sentence is manifestly excessive though it is certainly heavy. Comparable sentences can be of utility in appeals of this type; see, for example, the observations of Nader J. in R v Ireland (supra) at pp 17-20 and the schedule of cases to that judgment, at pp 30-36. Conclusions 22. As I am unable to detect any overt error in the exercise of the sentencing discretion, or to find that the sentence is manifestly excessive, appeal No. 126 of 1988 is dismissed. 23. The other appeal, No. 127 of 1988, related to the order which his Worship made that the appellant serve, cumulatively upon the 2 year sentence, that part of a former sentence service of which had been suspended when he was paroled on 1 July 1988. His conviction for the offence committed on 22 September meant that he was in breach of the conditions of his parole, the period of which was then current. However, this appeal was not sought to be argued and accordingly it is dismissed. 24. No challenge was made to the length of the non-parole period his Worship fixed. 25. In the result, both appeals are dismissed and the sentences and non-parole period imposed on 25 October 1988 are affirmed.
Sultan
Svikart & Pearce [1989] NTSC 20; 42 A Crim R 15; 96 FLR 457
(1988) 83 ALR 8
(1983) 32 SASR 101