PARTIES: GLENN, Casey
DIXON, Garnet Alan
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO: JA 16 of 2005 (20501705, 20422323, 20423437)
DELIVERED: 23 June 2005
HEARING DATES: 17 June 2005
JUDGMENT OF: RILEY J
Appellant: W. Smith
Respondent: C. Roberts
Appellant: Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: ril0514
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT ALICE SPRINGS
Glenn v Dixon  NTSC 33
No JA 16 of 2005 (20501705, 20422323, 20423437)
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 Alice Springs
DIXON, Garnet Alan
CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 23 June 2005)
 On 23 February 2005 the appellant was sentenced in relation to offences of driving a motor vehicle on a public street whilst disqualified from holding a driver’s licence and also having failed to provide a sample of breath sufficient for the completion of a breath analysis, pursuant to the terms of the Traffic Act. The relevant file was numbered 20501705. In relation to that offending an aggregate sentence of imprisonment for eight months was imposed upon the appellant.
 The conviction for those two offences constituted a breach of the terms of suspended sentences imposed upon the appellant in relation to two other matters and, in relation to those matters, the learned sentencing magistrate restored the sentence and ordered that he serve it. This resulted in a further period of imprisonment of seven months to be served on file 20423437 and a further period of imprisonment of three months, being the sentence in relation to file number 20422323 from which was to be deducted the period of 40 days already served in respect of those sentences. The sentences were deemed to commence on 20 January 2005. On 2 March 2005 his Worship reconvened the court to correct an error in the non-parole period. At that time he observed that the total effective period of imprisonment imposed and restored on the three files was 16 months and 20 days and he set a non-parole period of eight months and 10 days.
 The appellant appeals against the sentence on three grounds, namely:
“1. The sentence was manifestly excessive in all the circumstances.
2. The learned magistrate failed to give sufficient weight to the principle of totality in fixing a total effective sentence.
3. The learned magistrate erred in declining to allow any of the periods of imprisonment to be served concurrently.”
 The circumstances in relation to the traffic offences which were before the court (file 20501705) were that on 20 January 2005 the appellant was driving a Toyota Landcruiser when the vehicle was pulled over for a random breath test. The appellant was subjected to a roadside breath test which was positive. Inquiries showed that he had been disqualified from driving and would continue to be disqualified until 14 October 2007. He was arrested for the purposes of carrying out a breath analysis at the Ti Tree Police Station. He failed to supply sufficient breath for the purposes of analysis on two separate occasions.
 The offence of driving whilst disqualified was the fifth occasion on which the appellant had offended in that way. On the last occasion he was before the court for such offending, being 23 November 2004, he was sentenced to imprisonment for seven months which sentence was wholly suspended for a period of two years. The appellant has many other driving offences including unlicensed driving, driving whilst intoxicated, driving an unregistered motor vehicle, driving in a manner dangerous, driving an uninsured motor vehicle and failing to supply a sufficient sample of breath for the purposes of breath analysis. In addition to his convictions for traffic offences he has also been convicted of assaulting a member of the police force and assault occasioning bodily harm. He has previously breached parole and been ordered to serve the balance of his sentence. On 23 November 2004 he was convicted of assaulting his daughter occasioning bodily harm and sentenced to imprisonment for a period of three months, which sentence was backdated and then suspended.
 The sentencing magistrate had dealt with the appellant on the earlier occasions and observed that on those occasions efforts had been made to ensure that the appellant obtained supervision in order to assist him to stay out of trouble. He noted that there was only a short period of time between the imposition of the sentence in November 2004 and the fresh offending in January of 2005.
 It was submitted to his Worship that he should give consideration to restoring part only of each of the suspended sentences and his Worship addressed that submission in the following way:
“I note that all of your previous trouble for which you are on that suspended sentence, happened in circumstances of you drinking and making these stupid decisions about driving cars, or losing your temper and getting angry. And again, the offending that happened on 20 January is also mixed up with you drinking grog and your disobedience of the court order. And it is my view, that the fact that you commit a further offence whilst you are on a suspended sentence is an aggravating circumstance or makes that offending more serious because you were not supposed to do anything wrong during the course of the suspended sentence.
After considering what Mr Kenny (who appeared on behalf of the appellant) submitted to me on your behalf and taking into account the circumstances of the further offending and your compliance or non-compliance, I should really say, with the suspended sentence, I do not consider it unjust to restore that sentence that is held in suspense and I’m going to restore that part of the sentence that is still outstanding …”.
 His Worship then proceeded to impose the sentences to which I have referred. In determining the appropriate sentence his Worship turned his mind to the totality principle and reduced the penalty in relation to the traffic offences on file 20501705 that were then before him. He went on to say, referring to the total sentence imposed:
“In fixing that lengthy period, I am of the view that your non-compliance warrants a stiff warning to you by the court that you must not drive whilst disqualified and also the community deserves not to have you on the road in the light of your history and the potential danger that you would cause to members of the community in driving under the influence of alcohol.”
 The principles in relation to an appeal against sentence are well settled. The court will only interfere if it be shown that the sentencing magistrate was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing magistrate said in the proceedings, or the sentence itself may be so inadequate as to manifest error. In order to establish the existence of an unidentified error the appellant must show that the sentence was not just arguably excessive but so very obviously excessive that it was unreasonable or plainly unjust. The sentence must be so disproportionate to the sentence which the circumstances require as to indicate an error in principle.
 The parties were in agreement that his Worship made an arithmetical error in the calculation of the sentence. His Worship said:
“On file 20501705, in considering what would be an appropriate sentence on that matter, I am of the view that for the further offending on the basis of specific and general deterrence that a head sentence of 12 months is warranted. But because you pleaded guilty, I intend to reduce it by a third and also because of not wanting to impose a crushing sentence of imprisonment upon you, I’m going to reduce it by a further one month, to take into account the totality principle.”
 His Worship then went on to impose a sentence of imprisonment of eight months. Accepting that his Worship started with a head sentence of 12 months and reduced it by one-third, the resulting sentence would be eight months. However his Worship also indicated a further reduction of one month which would take the head sentence down to seven months. In fact his Worship imposed a sentence of eight months. I shall correct the error.
 The principal ground of appeal argued on behalf of the appellant was that the sentence was manifestly excessive and the other grounds of appeal were argued in support of that contention. Emphasis was placed upon the assertion that his Worship failed to apply the totality principle. It was submitted that whilst the learned magistrate expressly applied the totality principle to the offending in relation to file 20501705, he did not appear to do so in relation to files numbered 20422323 and 20423437. He did not stand back and look at the total sentences accumulated in the course of the proceedings and apply the principle to them. It was argued that his Worship failed to consider whether the accumulation imposed a crushing sentence on the appellant.
 In addition, the appellant made reference to s 43(6) of the Sentencing Act which provides that where a court orders an offender to serve a term of imprisonment that has been held in suspense, unless the court otherwise orders, the term shall be served concurrently with any other term of imprisonment previously imposed. The appellant noted that in submissions before the learned magistrate it was suggested that concurrency should apply, however his Worship rejected that submission. His Worship specifically ordered that the sentences be served cumulatively and, the appellant complains, did not provide reasons for so doing.
 In the submission of the respondent the issue of totality and the need to avoid the imposition of a crushing sentence was in the forefront of his Worship’s mind. The principle of totality and the need to avoid a crushing sentence were specifically referred to by his Worship when he considered file 20501705. His Worship gave consideration to whether or not he should “again suspend part of the sentence” but determined he should not do so because of the appellant’s “poor non-compliance with the previous order and the nature of the further offending”.
 On behalf of the respondent it was submitted that in considering files 20422323 and 20423437 the learned magistrate was required to have regard to the provisions of ss 43(5), 43(6) and 43(7) of the Sentencing Act. In particular, s 43(7) of that Act requires the court to make an order restoring the sentence or part-sentence held in suspense and requiring the offender to serve it unless the court is of the opinion it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence.
 It was submitted that the breach in this case represented like offending in the context of a history of convictions for drink driving and drive whilst disqualified along with other driving and alcohol related offences. A warning had been given to the appellant on an earlier occasion as to the consequence of future breaches. On 23 November 2004 he was warned that further offending would see him back before the court with the “only prospect that would probably be open for you is further periods of imprisonment”. His attention was directed to the effect of s 43 of the Sentencing Act and the obligation upon him to stay out of trouble for two years from November 2004. Those warnings were ignored and the appellant offended in a manner similar to that for which he had been sentenced on earlier occasion. The breach by the appellant occurred just two months after his previous conviction and two months into both his period of supervision and the operational period which applied by virtue of s 40(6) of the Sentencing Act. The respondent submitted that the explanation proffered on behalf of the appellant for driving in the circumstances was such that it did not warrant any special leniency nor displace the need for specific deterrence in his case. The appellant did not suggest otherwise.
 This was not an isolated incident and it needed to be considered in the context of continuing frequent breaches notwithstanding appropriate warnings. The appellant failed to accept the opportunities provided to him. He continued to offend in flagrant breach of the orders of the court. He demonstrated a continuing attitude of disobedience of the law: R v Mulholland (1991) 1 NTLR 1.
 In R v Fernando  NSWCCA 28 at par (42) Spigelman CJ cited with approval the following passage from the judgment of Lee J (with whom Gleeson CJ and Abadee J agreed) in R v Vranic (NSWCCA, 7 May 1991, unreported):
“The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation, ie parole has failed to achieve its purpose. The court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances.”
 In considering breaches of the terms of suspended sentences the court must be alive to the need to ensure the maintenance of the integrity of the sentencing process in a general sense. In Lawrie v R (1992) 59 SASR 400 at 403 Perry J said:
“To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out or where genuinely special circumstances exist.”
This approach to such matters is reflected in the requirement of s 43(7) of the Sentencing Act that the sentence be restored unless the court is of the opinion that it would be unjust to do so in the circumstances. See also Wilson v Taylor (1997) 113 NTR 1.
 The learned sentencing magistrate had previously dealt with the appellant. On the earlier occasion he had endeavoured to fashion a sentence that enhanced the prospects for his rehabilitation. He alerted the appellant to the thinking behind the sentence and warned him of the consequences of failure. The appellant offended again within a short period of being provided that opportunity. A fair reading of the sentencing remarks of his Worship reveals that he considered the totality principle in relation to the aggregate term of imprisonment. He specifically referred to the “lengthy period” of the sentence and gave his reasons for proceeding as he did. It was for similar reasons that his Worship consciously determined to order that the restored sentences be served cumulatively rather than concurrently. His Worship reminded himself of the need to avoid a crushing sentence and proceeded to impose the sentence which is now under challenge. I do not accept that the learned sentencing magistrate failed to apply the totality principle or that he misdirected himself in relation to the application of s 43(6) of the Sentencing Act.
 The real issue in the appeal was whether the aggregate term of imprisonment was manifestly excessive.
 In this case the appellant had abused the freedom granted to him by taking the opportunity to commit further offences. The earlier non-custodial penalty provided an opportunity to the appellant for rehabilitation, however his subsequent offending suggests failure and the undermining of the expectation of rehabilitation: R v Cicekdag  NSWCCA 357.
 The respondent acknowledged that the total term of imprisonment was “severe” but submitted that it was tempered by the non-parole period and, further, that it adequately reflected the totality of the appellant’s offending for each of the three separate episodes.
 I agree that the head sentence is at the upper end of the range taking into account all of the circumstances of each of the offences and applying the totality principle. However, I do not regard the aggregate term as being so very obviously excessive that it was unreasonable or plainly unjust. It was at the upper end of the range but not outside of the range. Subject to correcting the arithmetical error referred to earlier, I do not propose to interfere.
 In relation to the arithmetical error the sentence of eight months imposed on file 20501705 is to be reduced to seven months. The effective total period of imprisonment is 17 months, made up of seven months on file 20501705, seven months restored on file 20423437 and three months restored on file 20422323. When correcting his sentence on 2 March 2005, in calculating the period to be served, the learned sentencing magistrate had deducted 40 days from the total, apparently to reflect time earlier spent in custody in reduction of the restored sentences. Adopting the same approach, the total effective period of imprisonment will be for a period of 15 months and 20 days dated from 20 January 2005. It is appropriate to set a non-parole period: Walker v The Queen  NTSC 69. It is not possible to apply the minimum non-parole period of 50 per cent to that sentence because to do so would reduce the non-parole period below the minimum permitted pursuant to s 54(2) of the Sentencing Act. In the circumstances it is appropriate to impose a non-parole period of eight months dated from 20 January 2005.
 The appeal will be allowed to give effect to the sentence of imprisonment I have indicated. The sentence imposed on file 20501705 will be set aside and an aggregate sentence of imprisonment for seven months imposed. The orders for restoration and cumulation will remain. A non-parole period of eight months will be imposed. The sentences and the non-parole period will be deemed to have commenced on 20 January 2005.