be manifestly excessive and call for the intervention of an
appellate court in the interests of justice."
19. The conclusion
that I have reached is that the mere reception of the
evidence of disparity does not per se give rise to the exercise of a fresh
sentencing discretion by this Court. What must be shown is that there is a
manifest discrepancy which calls for the exercise of the
discretion of this
Court to intervene.
20. The Appellant submits that such a disparity exists here. Both the
Appellant and his co-offender
were 15 years of age at the time of the
offences. Both had had previous convictions for unlawful use of a motor
vehicle. Indeed,
it was submitted that A.K.'s prior record of convictions was
worse than that of the Appellant. A.K. had had a total of 63 prior
convictions,
whereas the Appellant had had only 18. Both the Appellant and
A.K. had received unfavourable reports from the same probation and
parole
officer. No distinction could be made between them as to their respective
roles in the offences. A.K. had committed the offences,
as well as the offence
on 28 July 1991, whilst released on a good behaviour bond, whilst the
Appellant had only a matter of days
previously been released upon a bond after
serving one month's imprisonment out of a total of 3 months' imprisonment. The
Appellant
has not yet been charged with a breach of that bond. The Appellant
received a total sentence of 6 months' detention, whilst his co-offender
received only one months' detention for the same offences.
21. Counsel for the Respondent submitted that the disparity in the sentences
was justified because (a) A.K. had not been convicted of any offences in 1990
whereas the Appellant's first convictions occurred
in 1990 and all but three
of his convictions occurred in 1991, (b) the majority of A.K.'s prior
convictions were "old" (i.e. between
1986 and 1989), (c) A.K.'s sentence was
not back-dated and he spent 11 days in custody in addition to the sentence of
one month's
detention, (d) A.K. had only two prior convictions for unlawful
use of a motor vehicle for which he had received community service
orders
whilst the Appellant had 6 prior convictions for that offence in 1991 (and
during that year he was in a detention centre for
6 of those months), (e) the
Appellant had only just been released from imprisonment when the offences
occurred.
22. In my opinion
these differences are only superficial. The prior records
of both juveniles, as well as the reports of the probation and parole officer,
show that both offenders are recidivists likely to offend again when released.
The fact that A.K. did not offend in 1990 is explicable
by the fact that he
was then serving a sentence of twelve months imprisonment imposed on 29
November 1989. There is nothing before
me to show that he was released early
upon an application by the Minister under s.61 of the Juvenile Justice Act,
and I do not think
that I should make any such presumption when considering
the Appellant's position. Both the Appellant and A.K. committed these offences
whilst on good behaviour bonds and whilst A.K. received punishment for breach
of his bond, and the Appellant has not, the Appellant
could still be brought
before the Court and dealt with for breaching his bond. It is true that the
Appellant has more convictions
for the offence of unlawfully using a motor
vehicle than A.K., and most of these are recent, but he has no prior
convictions for
trespass upon enclosed land (for which he received a
cumulative 3 month sentence of detention) whereas A.K. who had 6 prior
convictions
for trespass received a concurrent sentence of 1 month's detention
for trepass upon enclosed land. Whilst it may well be that A.K.'s
sentences
were lenient, and a total sentence of 6 months' detention for the Appellant
was not manifestly excessive, I have come to
the conclusion that the
discrepancy between the sentences, even allowing for the extra 11 days A.K.
spent in custody, is so manifest
that the sentences under appeal cannot be
allowed to stand without it appearing that justice has not been done.
23. Having regard
to that conclusion, it is not strictly necessary for me to
consider the other grounds of appeal. However, I do not consider that,
apart
from the question of disparity, a total sentence of 6 months' detention would
have been manifestly excessive. Nor would I have
held that the sentence of 3
months' detention for trespass manifestly excessive, although I myself would
not have imposed so severe
a sentence. The sentence of 3 months' detention for
the unlawful use was, in my opinion, clearly not excessive.
24. As to the ground
that the sentences imposed should have been concurrent,
rather than cumulative, the authorities to which I have been referred show
that there are some apparent differences of opinion between members of this
Court as to the correct approach to be applied. In R.
v. Scanlon [1987] NTCCA 8; (1987) 89 FLR
77, a decision of the Court of Criminal Appeal, Martin J adopted the view of
D.A. Thomas, Principles in Sentencing, to the effect that
"where two or more
offences are committed in the course of a single transaction, all sentences in
respect of those offences should
be concurrent rather than cumulative." His
Honour held that notwithstanding that there may be analytical problems in
deciding whether
the offences were all committed in the course of a single
transaction, the statement expressed by Mr Thomas was nevertheless a principle
of sentencing. Nader J on the other hand disagreed. In his opinion, there was
no such principle, only a conventional practice, and
he held that the great
overriding principle was that the sentences be just having regard to all of
the interests affected. His Honour
referred to what he had said in Lade v.
Mamarika [1986] NTSC 32; (1986) 83 FLR 312 at 315-316 where he emphasised that the overriding
requirement was that "the aggregate sentence made up of the individual
sentences
should not lack proportion of the total criminality of the
offender's conduct." Asche CJ on the other hand seems to have been of
the view
that a sentencing judge had a discretion to impose concurrent sentences where
the offences occurred out of the same set
of facts, and were not "the terminal
product of separate and independent courses of criminal conduct that happen to
have occurred
together.": Dicks v. Asherton (1974) 65 LSJS(SA) 150 at 151 per
Wells J. In the later case of Ebateringa v. Boldiston (1988) MVR
413, Asche CJ
(at 416) referred with approval to a passage in Fox and Frieberg, Sentencing,
1985 ed, p 374, para 9.418 as follows:
"In the absence of significant overlapping factors to
establish a relationship between the different offences the
presumption
that the sentences are to be served
consecutively will operate. However, if what the prisoner
now owes offends the totality
principle, an adjustment
downwards will be made by directing some degree of
concurrency."
25. It is unnecessary for me to
choose between the various approaches,
although my present inclination would be to follow the approach of Nader J. In
any event,
whether an appeal is made under the Justices Act or under the
Criminal Code, the court has a power to dismiss an appeal if it considers that
no substantial miscarriage of justice
has occurred: see Justices Act,
s.177(2)(f); Criminal Code, s.411(2). If all that is shown is that cumulative
sentences were imposed when they ought to have been concurrent,
it seems to me
that no substantial miscarriage of justice has occurred if the aggregate of
the sentences imposed did not lack proportion
to the total criminality
involved. Accordingly, I would not have interfered with the sentences imposed
in this case even if I had
taken the view that the sentences ought not to have
been cumulatively imposed.
26. I turn now to the question of what sentence should
be imposed having
regard to the disparity which exists between the sentences imposed upon the
Appellant and the sentences imposed
upon his co-offender. The Appellant has
been in custody from 4 November 1991 until 15 November 1991, and from 30
November 1991 until
I released him on bail on 12 February 1992. Thus he has
already served a total of 2 months and 23 days in detention. This is already
longer than the period served by his co-offender, and is longer than I would
have fixed had circumstances permitted me to do so.
In the circumstances I
consider that, whatever may be the precise form of the formal orders that I
must now make, the Appellant should
not now have to serve any further period
of detention.
27. The appeal is therefore allowed.
28. I will hear counsel as to the form
of the orders to be made.