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Garnet Alan Dixon v Michael Mumu [2005] NTSC 55

PARTIES: Garnet Alan Dixon
v

Michael Mumu

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 22 of 2005, 20503528

DELIVERED: 15 September 2005

HEARING DATES: 8 September 2005

DECISION OF: OLSSON AJ

CATCHWORDS:

APPEAL

Justices - Crown appeal against sentence – custodial sentence and disqualification period in respect of repeat driving offences asserted to be manifestly inadequate - impugned penalties imposed at same time as sentence for property offences committed two months later - respondent committed serious entering and larceny offences between date of the driving offences and date of the property offences, but not sentenced until after impugned sentence and disqualification - substantial, partly suspended, custodial sentence imposed in respect of entering and larceny offences cumulative upon impugned sentence and that for property offences - principles related to Crown appeals - whether impugned sentence and period of disqualification shown to be manifestly inadequate - whether, in any event, any utility in adjusting impugned sentence - consideration of effect of subsequent unrelated custodial sentence and its partial suspension – whether exercise of discretion not to extend already lengthy pre-existing period of disqualification reasonably open to sentencing magistrate.

REPRESENTATION:

Counsel:
Appellant: R. Noble
Respondent: M. O’Reilly

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Central Australian Aboriginal Legal Aid Commission

Judgment category classification: B
Number of pages: 20
Judgment ID Number: Ols05004

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Garnet Alan Dixon v Michael Mumu [2005] NTSC 55
No JA 22 of 2005, 20503528

BETWEEN:

Garnet Alan Dixon
Appellant

AND:

Michael Mumu
Respondent

CORAM: OLSSON AJ

REASONS FOR DECISION

(Delivered 15 September 2005)

DIXON v MUMU

Introduction

[1] This is a Crown appeal against what is said to have been a manifestly inadequate sentence imposed by a stipendiary magistrate on the respondent on 12 April 2005.

[2] On that day the respondent appeared before the Court of Summary Jurisdiction at Alice Springs and pleaded guilty to one count of having driven a motor vehicle whilst disqualified and one count of having driven a motor vehicle while having a blood alcohol concentration of 173 mg of alcohol per hundred millilitres of blood ("the driving offences").

[3] He entered a plea of guilty to each charge.

[4] It should be noted that, on the same occasion, the respondent also pleaded guilty to quite unrelated charges of unlawful entry and criminal damage. He also admitted those offences ("the property offences").

[5] The driving offences occurred on 10 February 2005, whilst the property offences occurred some two months later, on 3 April 2005.

[6] The learned magistrate recorded convictions and aggregated penalty on the two driving counts. She sentenced the respondent to a period of one month imprisonment from 8 April 2005 and, on the second count, ordered 18 months licence disqualification, to run from 11 February 2005, having regard to a Traffic Act, s20A notice served on the respondent on that day.

[7] In relation to the property offences she convicted the respondent and imposed a sentence of two months imprisonment in respect of the first count, cumulative upon that for the driving offences. She opted to merely record a conviction as to the second count, without further penalty.

[8] The present appeal is restricted to the sentence and the period of disqualification for the driving offences. However, this needs to be considered in light of the background of the contemporaneous sentence for the property offences, having regard to the totality principle.

[9] It also falls to be considered in the context that the respondent further appeared before the Court of Summary Jurisdiction at Alice Springs on 14 July 2005, charged with entering the Gap View Outback Lodge with two other persons on 22 March 2005 and stealing liquor from those premises. He admitted the charges related to that incident and received an aggregate sentence of seven months imprisonment, to run from 8 July 2005. This was conditionally suspended after service of four months, with an operational period of 14 months.

[10] I will refer to these offences as "the March offences". The practical effect of the sentence imposed in respect of them was to make it cumulative upon the sentences for the driving offences and the property offences.

[11] The respondent will therefore, on any view, remain in custody in relation to the totality of the foregoing matters until 7 November 2005.

[12] It is to be seen that the March offences were committed between the time of the driving offences and the date of commission of the property offences. In retrospect, it is unfortunate that all matters were not dealt with at the same time. There are obvious implications in relation to the totality principle. It appears that the delay in relation to the March offences was largely due to the fact that the identity of the respondent as an offender was not apparent until a fingerprint match was noted in May 2005.

The circumstances of the offences

[13] The driving offences occurred on the Stuart Highway near the Old Timers Camp, at about 6 p.m. on 10 February 2005.

[14] The respondent was observed driving a Ford car in a southerly direction near the Tom Brown Roundabout. There were four occupants of the vehicle. The respondent was stopped at a Random Breath Testing Station at that location.

[15] On breath analysis, it was found that he had a blood alcohol concentration of .173%. Police checks revealed that he had earlier been disqualified from driving until 3 December 2006.

[16] It was said that traffic was heavy at the time. The weather was fine.

[17] The learned magistrate was informed that the respondent was a 28-year-old Pitjantjara man from Imanpa. It was said that he had been at home at the Old Timers Camp and having drinks with family members there in the afternoon. His sister-in-law asked him to drive her, in her car, to the BP Camp. He demurred, because he had been drinking, but she insisted. He ultimately gave in to her insistent demand. He was en route to the BP Camp when he encountered the RBT Station.

[18] Counsel said that the respondent was married, but had no children. Having left school he had, for a time, been on the CDEP at Imanpa, but currently lived at Alice Springs and received unemployment benefits of $380 per fortnight.

[19] As to the property offences, it was said that these had been committed whilst the respondent was intoxicated and walking with his wife from the BP Camp to the Old Timers Camp. As they passed Pulver's Restaurant on Ross Highway, the respondent made a spontaneous decision to break in, in an attempt to obtain some liquor.

[20] He pulled back and damaged a security screen on a side window, slid the window open and climbed in. In doing so he tripped a security alarm. He then ripped the panel of the alarm system off the wall. Some $450 damage was caused to the premises. Nothing was stolen, because a security vehicle was seen approaching and he absconded.

[21] The respondent was arrested on 8 April 2005 and readily admitted the offences.

The background of the Respondent

[22] The respondent's detailed antecedent record was placed before the learned magistrate.

[23] This disclosed that he had a long history of prior convictions extending back to late 1991. These spanned offences such as unlawful entry, stealing, criminal damage, resisting arrest and assaulting police, a variety of motor vehicle offences, aggravated assault, firearms offences and receiving. In many instances there were repeat offences of those generic types.

[24] It is fair to say that, in more recent times, the majority of offences have, in fact, been motor vehicle offences, including offences associated with the consumption of alcohol.

[25] The respondent has served a series of modest terms of imprisonment in respect of a variety of the offences.

[26] The most recent custodial situation, prior to the 2005 sentences, appears to have been a term of imprisonment of four months commencing on 3 December 2003.

[27] Relevantly for present purposes, the specific history of the respondent in relation to offences of drive whilst disqualified and drink driving offences is as follows:

Date Offence Sentence

4/11/1999 Drive disqualified 3 months imprisonment
DUI x 2 (aggregated penalty with unlawful
use and other offences)
Disqualification-five years

15/7/2003 Drive disqualified 1 month imprisonment
Drive exceed .08 (.132) (suspended after 7 days)
Disqualification-12 months

11/12/2003 Drive disqualified 4 months imprisonment
Drive exceed .08 (.115) (restored sentence concurrent)
Breach suspended sentence Disqualification until 3/12/2006

10/2/2005 Drive disqualified 1 month imprisonment
Drive exceed .08 (.173) Disqualification-18 months

[28] It will be observed that the practical effect of the last order for disqualification is that this is fully concurrent with the pre-existing period of disqualification expiring on 3 December 2006, as it runs from 11 February 2005.

The sentencing approach

[29] In sentencing the respondent the learned magistrate noted the respondent's antecedent record, but accepted that he was entitled to a substantial discount for his full and frank admissions and timely pleas. She indicated that she would allow him a 40% reduction in relation to the property offences, although she did not expand on why that somewhat generous figure had been selected. She merely commented:

"The other matter took some time to get finished and became a warrant and of course, the new offence is aggravated by the fact that you committed that offence whilst you had that warrant outstanding from the other charge. You get some credit for your plea of guilty on the drive disqualified but it is a much more limited (sic) because you did not get that matter finished straight away."

She went on to say:

"Alcohol is involved in both these offences and alcohol seems to be very steady theme all throughout your record, Mr Mumu. So, there is a situation just keeps-continues on where you go into custody, come out for a while and then you go in again. Twenty-eight years of age, you are no longer a young person for sentencing purposes. You have quite a significant record and it seems like you are not taking any notice of what you have been told which is to keep out of trouble. I don't see any other possible penalty other than the terms of imprisonment for both these offences

They’re both completely separate incidents and so they will be cumulative sentences."

[30] The learned magistrate expressed the view that there were no grounds to fully or partly suspend the sentences and they would have to be served in full. On imposing the 18 month disqualification period, she noted that the pre-existing disqualification continued until December 2006. She expressly warned the respondent of that situation and the consequences of further driving whilst disqualified.

The Crown submissions

[31] Counsel for the appellant acknowledged that the impugned sentence and period of disqualification could not be looked at in isolation, because the totality principle was directly applicable to all of the matters dealt with at the same time.

[32] He said that the Crown took no issue with the aggregate period of imprisonment imposed in relation to the property offences, bearing in mind that they were, in their nature, towards the lower end of the scale. He did seek to question the allowance of a 40% discount for plea in relation to the property offences, but accepted that any challenge to that period did not rise above being arguable.

[33] Nevertheless, he submitted that, even on a generous application of the totality principle, the one month aggregate period of imprisonment imposed in respect of the traffic matters was, in itself, manifestly inadequate.

[34] He made the point that, having regard to what fell from the then Chief Justice in Hales v Garbe [2000] NTSC 49, it had been common ground at first instance that a period of imprisonment was appropriate in relation to the offence of drive disqualified, particularly having regard to the respondent's antecedent record. There was a clear history of flagrant disregard by the respondent of the orders of the court.

[35] He contended that, on an objective review of the facts of the offence against the background that it was yet another example of a persistent disobedience of a previous order of disqualification, the sentence of one month imprisonment was so manifestly inadequate as to indicate error.

[36] As to the objective circumstances, he emphasised these points:

36.1 The relevant offences were of the same generic type as those in respect of which the respondent had previously been disqualified;
36.2 He had committed offences of that type on several occasions;
36.3 He had not only illegally driven the vehicle knowing that he was not entitled to do so, but was also substantially intoxicated at the time;
36.4 He had ignored previous warnings that had obviously been given to him by the Court concerning the likely outcome of breaching the order of disqualification;
36.5 He was a mature man and not a youthful offender;
36.6 The driving did not arise from any emergency situation that might warrant any special leniency or displace the need for personal deterrence. The respondent merely acceded to the persistent requests of his sister-in-law;
36.7 The alcohol reading was .173% and thus in the higher categories of blood alcohol concentrations;
36.8 His overall conduct demonstrated a continuing attitude of flagrant disobedience of the law; and
36.9 The offence occurred in the midst of a pre-existing disqualification period and by no means almost at the completion of it.

[37] The point was further made that the period of imprisonment ordered was only a small fraction of the maximum stipulated by the Traffic Act and that there did not appear to be any obvious gradation to or relationship with previous sentences.

[38] Mr Noble, of counsel for the appellant, submitted that, whilst there was no hard and fast principle in the last mentioned regard, nevertheless, the authorities rendered it clear that a proper sentencing approach mandated that proper regard ought to be had not only to an accused’s antecedent record, but also to the record of prior sentences passed upon that person, so as to ensure that there is not a gross disparity in sentences imposed over time (The Queen v Sloane (1973) NSWLR 202, The Queen v Breasley (1974) 1 NSWLR 736. See also the type of reasoning in The Queen v Baumer (1989) 40 A Crim R 74).

[39] He sought to paraphrase what fell from Rice J. in Pryce v Foster (1986) 38 NTR 23 in submitting that it was irreconcilable both with logic and good reason to impose what was a relatively nominal period of imprisonment in respect of a repeat offence occurring only a relatively short time after prior offences of the same type, particularly when there were no special circumstances indicating a justification for such leniency.

[40] It was submitted that the stage had not earlier been reached at which an escalation of penalties was not warranted because of the potentially crushing nature of them and that the strategy adopted in the instant case had manifestly failed to adequately address the degree of criminality involved. Indeed, Mr Noble went so far as to contend that the period of imprisonment imposed was manifestly inadequate for the offence of drive disqualified considered alone. It was, he said, even more inappropriate when coupled with the exceed prescribed limit charge. It had the practical result, in realistic terms, of imposing no punishment at all in respect of one or other of the aggregated offences.

[41] As to the period of disqualification ordered, he submitted that, bearing in mind the already pre-existing order for disqualification, the period ordered was, in practical terms, nugatory.

[42] He argued that, in Thomas v Henderson [2005] NTSC 54 the Chief Justice had made it clear that, by reason of the provisions of the Traffic Act, periods of disqualification commence at the time when the person is found guilty of the relevant offence and that, where a person is found guilty of the offence of driving a motor vehicle whilst disqualified, s31 of the statute clearly contemplates that any further period of disqualification to be imposed ought to commence from the time of expiry of the original period of disqualification.

[43] He accepted that the authorities establish that, in some cases, a period of imprisonment ordered might be highly relevant to any period of disqualification ordered and that, in any event, the length of a disqualification period should be arrived at having regard to its potential impact upon the rehabilitation of the offender (Patterson v Materna JA 36/1996 SC NT 28 August 1996, Mildren J, The Queen v Bazley (unreported, Victorian Court Of Appeal, Batt JA, 21 August 1997). I took him, in effect, to contend that, in the instant case, there was little to suggest any likelihood of rehabilitation of the offender and that the time had arrived at which the protection of the community was a paramount consideration.

The conceptual approach to Crown appeals

[44] As the former Chief Justice indicated in Hales v Garbe (supra), it is well settled that, in bringing an appeal against sentence, the Crown bears a heavy onus. As he there said:

"Sentencing being a matter of discretion, there is a strong presumption that the sentences imposed are correct. In order for this court to interfere, the Crown must demonstrate that the sentences are so very obviously inadequate that they are unreasonable or plainly unjust; the sentencing judge must be shown by the Crown to have either made a demonstrable error or have imposed a sentence that is so very obviously inadequate that it is manifestly unreasonable or plainly unjust, that is, the sentence must be clearly and obviously, and not just arguably, inadequate. It must be so disproportionate to the sentence which the circumstances required as to indicate an error of principle".

[45] In the course of its judgment in Everett v The Queen (1994) 181 CLR 295 at 299 the High Court expressed the view that there are strong reasons why Crown appeals should be allowed only in rare and exceptional cases. It pointed out that an appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom of the offender. The onus was therefore clearly on a Crown appellant to demonstrate manifest inadequacy or inconsistency in sentencing standards and to afford an opportunity for the appellate court to perform its proper function of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

The respondent’s riposte

[46] I took Mr O'Reilly, of counsel for the respondent, to argue that, in reality, no breach of sentencing principle had been demonstrated and that I was merely being invited to embark upon the impermissible exercise of concluding that, had I been the sentencing judicial officer, I would have exercised a sentencing discretion in a manner different from that of the learned magistrate.

[47] He submitted that it was important to view the impugned sentence in the context of the total sentencing exercise that had taken place on 12 April 2005. The respondent had received a total custodial sentence of three months. Having regard to the total criminality involved this was within the range of reasonable sentencing outcomes, bearing in mind the totality principle. Viewed in that way, it could not be said that inappropriate leniency had manifestly been extended to the respondent. The impugned sentence, as part of the overall effective sentence imposed, was not incongruous with earlier sentences.

[48] As to the period of disqualification, he pointed to the immediate disqualification notice that had been issued pursuant to s20A of the Traffic Act and the fact that the period of disqualification imposed in relation to the second count had been the mandatory period required by Schedule 1 of the statute. He submitted that there was nothing in the statute to require the imposition of a further period of disqualification. This was a matter of discretion for the sentencer and the learned magistrate had properly had regard to the fact that there was already a disqualification in place until 3 December 2006.

[49] Mr O'Reilly contended that, in a situation such as that now under consideration, there was good reason to encourage people, after a long period of disqualification, to legitimately take out a licence and drive within the law as part and parcel of some degree of rehabilitation. He pointed out that the respondent was a person who had ties to remote areas and, whilst not living in town, ought to be encouraged to drive legitimately when he can. The respondent was already subject to a very lengthy period of disqualification and the imposition of yet a further period was more likely to give rise to the commission of further offences in a counterproductive fashion. He argued that the learned magistrate had been entitled to take a practical view of the situation and refrain from exercising a discretion to extend an already very lengthy period of disqualification.

Conclusion

[50] This matter is not without its difficulty. There can be no doubt that, having regard to the circumstances of the offending, the respondent's antecedent record and, importantly, his persistent conduct in deliberately flouting the orders of the court over time, the sentence and a disqualification imposed were extremely lenient.

[51] A specific difficulty that arises is that, on a fair reading of the sentencing remarks, there was no reason expressed as to why that leniency should have been extended. Moreover, it is, with respect, somewhat difficult to appreciate the logic of merely imposing an aggregate sentence of one month imprisonment against the background of the prior persistent offending and, in particular, the sentence of four months imprisonment in respect of the offences dealt with in December 2003. This is especially so having regard to the relatively lenient treatment that had been meted out to the respondent prior to that time.

[52] It must be emphasised that, when one examines the submissions made to the learned magistrate by counsel for the respondent these simply do not identify any significant mitigating circumstances beyond the facts that the respondent had clearly earned a substantial discount for his pleas and cooperation and that the relevant driving had not been for his own purposes but because of a perceived obligation to assist his sister-in-law. There was certainly no element of perceived emergency involved.

[53] Even when viewed together with the custodial sentence in respect of the property offences for the purposes of application of the totality principle it must be said that, by any standard, the total effective sentence was very modest in light of the circumstances of the offending and the respondent's antecedent record.

[54] Were it not for the aspect which I am about to come, I would have been driven to the conclusion that the impugned sentence was a departure from sentencing standards to the degree that this court ought to interfere. However, it seems to me that due cognisance must be taken of the fact that, by reason of the later sentence imposed on 14 July 2005, the respondent will have been required to spend a total period in custody from 5 April 2005 to 7 February 2006 in respect of offences committed over a relatively short time span and then be subject to an operational period of suspension for a further 14 months.

[55] In imposing the sentence of 14 July 2005, the court did so with knowledge that the respondent was already in custody serving another sentence or other sentences. So much appears from the relevant transcript.

[56] It is not entirely clear as to precisely how much detail of the prior offences the learned sentencing magistrate had before him when considering the March offences. However I note that he referred both to a presentence report that was before him and to detailed submissions made by counsel for the respondent. As already appears he structured the sentence that he imposed for the March offences to run cumulatively upon the previous sentences. The only reasonable inference is that, in doing so, he would have taken the totality principle into account, as he would have been bound to do in the circumstances.

[57] There would, accordingly, appear to be little utility in reviewing the impugned sentence in a manner that could have little practical result on the ultimate effective outcome. If the impugned sentence were to be increased it would necessarily have to be served concurrently with the later sentence. In any event, commonsense and fairness demand that the total situation be reviewed as if all of the relevant offending have been dealt with at one and the same time. I am by no means convinced that the totality of the sentences imposed on the respondent on all relevant occasions can possibly be said to be manifestly inadequate as to the totality of the offending.

[58] That being so, I content myself with voicing the expressions of opinion already set out in these reasons. I consider that the appeal as to the custodial sentence ought to be formally dismissed. There will be an order accordingly.

[59] As to the appeal in relation to the period of disqualification Mr Noble essentially complains that the practical situation is that the respondent in fact received no further punishment by way of disqualification for his further offending, because there was, in reality, no extension of his pre-existing period of disqualification. It may well be that, had I been dealing the matter at first instance, I may have taken a different view. However, that is a far cry from saying that manifestly, the learned magistrate was not entitled to adopt the discretionary practical view that she obviously did.

[60] I am not persuaded that the Crown has discharged its onus in relation to the issue of disqualification. I therefore also dismiss the appeal as to that aspect.

[61] There will, accordingly, be formal orders in conformity with the foregoing reasons.

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