Maxwell v Hall [2004] NTSC 46

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Maxwell v Hall [2004] NTSC 46






FILE NO: JA 17 of 2004 (20405815)

DELIVERED: 7 September 2004

HEARING DATES: 27 August 2004



Applicant: M. O’Reilly
Respondent: C. Roberts

Applicant: Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Number of pages: 7


Maxwell v Hall [2004] NTSC 46
No JA 17 of 2004 (20405815)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Kintore







(Delivered 7 September 2004)

[1] This is an appeal against a sentence imposed by a Stipendiary Magistrate sitting at Kintore on 14 May 2004. The appellant had pleaded guilty to having sold a volatile substance to another person, knowing that the other person intended to use the substance by administering it to himself.
[2] The learned magistrate imposed a sentence of three months imprisonment, suspended for 18 months after service of one month. The appellant contends that, in all the circumstances, the sentence was manifestly excessive. He specifically complains that insufficient weight was given to the defendant's status as a first offender, too much weight was placed upon the issue of general deterrence and that it was inappropriate to require a portion of the sentence imposed to be actually served.
[3] The appellant was originally charged with three separate offences of selling, but, at the hearing, it was agreed that only the first count would formally be proceeded with, the two other occasions of sale being taken into consideration.
[4] Kintore is a quite remote community, situated due west of Alice Springs and near the Western Australian border. It seems that, until recently, it had received little police presence or attention. The sitting of the Magistrates Court there on 14 May 2004 was, literally, the first occasion on which that court had convened at Kintore. A police station had, then, only recently been established there.
[5] The relevant facts were freely admitted. The appellant is a 19-year-old Arrente man who is a member of the Kintore Community. He is married, with a son now about one year old. At the relevant time he was unemployed and in receipt of unemployment benefits of $200 per fortnight. He was, himself, a petrol sniffer.
[6] It is common ground that, on three separate occasions early in 2004, the appellant siphoned petrol from a motor vehicle and sold it to other members of the community for cash, knowing that it was to be used for sniffing. In all, he received about $200 in cash in respect of the three transactions. He was arrested on 5 March 2004 at Kintore, in the company of several juveniles who were sniffing at the time. He was found, upon arrest, personally to be moderately affected by petrol fumes.
[7] The appellant appeared before the court as a quite young first offender.
[8] The learned magistrate was told that, prior to the arrival of a police presence, petrol sniffing was a common occurrence in the community and that the appellant had been selling petrol to make extra money. The three transactions now under consideration appear to have been but portion of a wider, ongoing course of conduct on his part. It seems obvious that he had little or no appreciation that his conduct was an offence against the law.
[9] It emerges from the transcript that there was no dispute as between the prosecution and counsel for the appellant that a period of adjustment had taken place within the community since the arrival of the police. Particularly following the arrest of the appellant, petrol sniffing had declined rapidly. The appellant had accepted the supervision of his elders and been of good behaviour. He had, personally, ceased petrol sniffing. He was looking to become involved in the CDEP.
[10] Counsel urged the learned magistrate not to impose a custodial sentence on the appellant because of his young age, lack of prior record and obvious acceptance that his past conduct had been wrong, coupled with his positive conduct since arrest. The prosecution did not advance contrary arguments. Indeed, the prosecution submissions were actually quite favourable to the appellant.
[11] It should be noted that, during the submissions as to penalty, the learned magistrate made inquiries as to whether the appellant would be suitable for a community-based order. It is argued that when it was intimated that the appellant had been assessed as unsuitable for a Community Work Order a sentence of imprisonment was ordered and partly suspended without there being any expressed prior consideration of the option of a full suspension. This was said to be an error in sentencing approach that did not accord with the reasoning in R v Palliaer (1983) 35 SASR 569.
[12] Having referred to the serious detrimental effect that petrol sniffing was having on various communities the learned magistrate commented -
"The court is on its first visit to Kintore ever, and it is my view that a strong message needs to be sent to this community and other communities in the Northern Territory that the sale of petrol to others for the purposes of these people to sniff will not be tolerated so there's a strong element of general deterrence in dealing with people for this sort of offending."

[13] He reflected on the positive factors in favour of the appellant and then concluded -
"It is my view that because of the seriousness of this offence, you should serve an actual period of imprisonment but I'm going to partly suspend the sentence that I would otherwise impose which I fix at one third less than I normally would because of your plea and the other factors which I have mentioned today."

[14] Whilst implicitly accepting the seriousness of the problem of petrol sniffing and its disastrous effects on many communities Mr O'Reilly, of counsel for the appellant, submitted that it had been inappropriate, in effect, to seek to make an example of his client in a manner that did not adequately recognise the context in which the offending conduct had taken place and the mitigating factors personal to him.
[15] He argued that the sentence imposed was unduly Draconian having regard to the prior history of petrol sniffing in the community, the period of adjustment necessarily required following the arrival of a police presence, the lack of real appreciation by the appellant of the criminal nature of his conduct and the dramatic turnaround that had occurred following his arrest.
[16] That turnaround related not only to the appellant himself, but also the community as a whole. Moreover, it was said, the young age of the offender, his lack of any antecedent record, and his obvious remorse evidenced by a timely plea, his submission to the supervision of the elders and his own abandonment of petrol sniffing all combined to demand a very substantial degree of leniency. Whilst the sentence imposed may well have been appropriate in the case of a deliberate, knowing repeat offender, it really failed, adequately, to reflect a proper balancing of the guidelines and factors set out in s 5 of the Sentencing Act in the particular case of the appellant.
[17] With due respect to the learned magistrate it seems to me that there is considerable force in these contentions.
[18] It cannot be denied that his Worship was well justified in viewing offences of this type as being inherently serious and requiring a firm approach. In general, factors of personal and general deterrence necessarily loom large in relation to what it is, patently, a widespread and serious problem. As against that, the salient feature emerging from the undisputed facts of this case is that there had already been a dramatic improvement in both the situation within the community at large and also, particularly, with regard to the appellant personally. Accordingly, the weight to be attributed to such factors was somewhat less than it might otherwise have been. Moreover, the mitigating factors personal to the appellant were substantial.
[19] In my opinion, the imposition of a sentence of three months imprisonment and a requirement actually to serve a third of it was simply too harsh in all the circumstances. It seems to me that the factors of deterrence would adequately have been recognised by imposing a custodial sentence, but wholly suspending it for a proper period. I agree that, in the case of the appellant, a period of the order of 18 months was appropriate. This would serve to ensure his continued good conduct whilst, at the same time, bringing home to the community at Kintore that, in future, offences of this type would attract substantial punishment.
[20] Having regard to the whole of the circumstances, I have concluded that this appeal ought to be allowed and the sentence imposed set aside. In lieu, there should be substituted for it a sentence that the appellant be imprisoned for a period of three months, such sentence to be wholly suspended for a period of 18 months to run from 14 May 2004.
[21] There will be an order accordingly. I will hear counsel as to what, if any, conditions ought to be imposed in relation to the suspension.