Ross v Toohey [2006] NTSC 92

PARTIES: ROSS, ELDRIDGE

v

TOOHEY, JOHN GERARD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 08/2006 (20531250)

DELIVERED: 24 November 2006

HEARING DATES: 27 September 2006

JUDGMENT OF: MILDREN J

APPEAL FROM: Court of Summary Jurisdiction, 20531250, 21 February 2006

CATCHWORDS:

CRIMINAL LAW – Appeal – whether magistrate failed to consider Home Detention rather than imprisonment as a last resort – appellant has previous convictions for drink driving and driving disqualified – Court should have considered home detention – home detention report ordered by appellant unsuitable – appeal dismissed

Legislation:
Crimes (Sentencing Procedure) Act (NSW), s 7
Criminal Law (Conditional Release of Offenders) Amendment Act 1987
Sentencing Act (NT), s 7, s 44-48, s 45, s 48(6)
Traffic Act (NT), s 19(1), s 30(1), s 31(1)

References:
Hansard, Debates 24 September 1987, pp 1578-1582

Citations:
Referred to:
Arnold v Trenerry (1997) 118 NTR 1
Oldfield v Chute (1992) 107 FLR 413
Seears v McNulty (1987) 89 FLR 154
Smith v Torney (1984) 29 NTR 31
Stanischewski v Trenerry [2001] NTSC 50
Turner v Trenerry (NT Supreme Court, 17 January 1997, unreported)

REPRESENTATION:

Counsel:
Appellant: P Dwyer
Respondent: C Baohm

Solicitors:
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: A
Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Ross v Toohey [2006] NTSC 92
No. JA 08/2006 (20531250)

BETWEEN:

ELDRIDGE ROSS
Appellant

AND:

JOHN GERARD TOOHEY
Respondent

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 24 November 2006)

Mildren J:

[1] This is an appeal against sentence imposed by a magistrate sitting as the Court of Summary Jurisdiction. After hearing submissions from counsel, I allowed the appeal and ordered a home detention report.

[2] The appellant pleaded guilty to three offences against the Traffic Act namely, driving under the influence (s 19(1)); driving in a manner dangerous to the public (s 30(1)); and driving whilst disqualified (s 31(1)).

[3] The Court of Summary Jurisdiction convicted the appellant on each count and imposed an aggregate sentence of imprisonment for three months, suspended after one month. As well, the appellant’s driving licence was disqualified for a total period of 18 months.

[4] The grounds of appeal, as amended by leave at the hearing, are as follows:

“1. That the learned Magistrate erred in failing to consider the principle that imprisonment is a last resort.

2. That the learned Magistrate erred in failing to give consideration to home detention as an alternative to actual imprisonment.”

Facts

[5] The facts, as alleged by the Crown and accepted by the appellant were as follows. On Monday 21 November 2006 the appellant left the Katherine area after visiting his uncle. On his return trip to Lajamanu the appellant consumed an unknown quantity of liquor. On arrival at Lajamanu at around 8:30 pm the appellant became agitated with family members and proceeding to his green Ford Futura sedan, NT registered 628723, he began driving that vehicle south along an unnamed road towards the Lajamanu Community basketball courts where children where playing. He then turned his vehicle right and drove into the middle of the basketball courts, then drove two laps around the Lajamanu Recreational Hall before driving off towards the Lajamanu Health Clinic, in front of which he accelerated his vehicle to such an extent as to cause it to slide sideways. He then drove around the Lajamanu area causing the vehicle to slide sideways. While doing this, he did not observe a large ditch in front of him and crashed his vehicle into the ditch.

[6] The appellant alighted from his vehicle and attempted to push it out from the ditch. Lajamanu Night Patrol then arrived and attempted to speak with him, but he refused and again got into the driver’s seat of his vehicle. Police then arrived and informed the appellant that he was under arrest and that he would be conveyed to Lajamanu Health Clinic for treatment.

[7] Police observed the appellant to have bloodshot eyes, slurred speech, to be unsteady on his feet and to smell heavily of liquor. After being conveyed to the rear of the Lajamanu Health Clinic, the appellant was later released into the care of family and informed that he would later be summonsed over the incident. Police checks revealed that the appellant was disqualified from holding a licence until 18 February 2006.

[8] At the time of the offence, the unnamed road within the Lajamanu Community was a public street open to and used by the public. Traffic was light. The road was sealed. Lighting was by way of streetlights.

[9] The appellant has a poor driving record. His prior offending includes three major incidents for which he was charged and convicted as follows:

Date of Conviction Date of Offence Offence Result
12/08/2004 23/10/2003 Drive uninsured vehicle
Drive unregistered vehicle } $200.00 fine
Drive whilst unlicensed $150.00 fine
18/08/2005 29/10/2004 Exceed .08 (0.085%)
$200.00 fine and 6 months licence disqualification
Drive manner dangerous $150.00 fine and 3 months licence disqualification
18/08/2005 05/08/2005 Exceed .08 (0.193%) Fine $400.00 and 12 months licence disqualification
Drive unregistered/uninsured vehicle Fine $200.00
Drive without due care Fine $100.00 and restitution $457.00 ordered
Drive unsafe motor vehicle Fine $100.00

[10] As can be seen, his prior offending resulted in small fines and licence disqualifications. Although the record (Ext 1) appears to show that the appellant was disqualified until 18 August 2006 the facts alleged only that he was disqualified until 18 February 2006. No issue was raised about this discrepancy before the learned Magistrate, but her Honour was alive to it and sentenced the appellant on the basis that he was disqualified until 18 August 2006.

Submissions before the Magistrate

[11] On behalf of the appellant, counsel submitted to the Magistrate that the appellant had stopped drinking alcohol since this occasion and had apologised to the police, night patrol and before the “Justice Committee”. The appellant tendered a “reference” signed by all of the appellant’s family members to the effect that the appellant is a quiet young man who lives alone and usually keeps to himself, that he has not drunk alcohol since the offending, is now employed as a recreation officer and “also enrolled for Batchelor Courses”. It was put that the appellant, who was 20 years old and lived in a remote Aboriginal community, Lajamanu, was employed supervising children’s sporting activities. It was submitted that the appellant, who is a Warlpiri man, achieved well at school having completed Year 12 in Darwin. He had also enrolled in a diploma course in Sports and Recreation at the Batchelor Institute commencing in March 2006. Apart from his interest and participation in sport as a football player, the appellant had been learning “the ceremony tradition and procedures from the elders” and was regarded by them as a future leader. It was put that, although the offending was serious, he had pleaded guilty at the first opportunity, nobody was actually injured as a result of his driving and that the learned Magistrate should consider a community service order, or at least a home detention order.

[12] As to the circumstances of the offending it was put that the appellant, who only rarely drank alcohol, was drinking outside the restricted area when he was assaulted by another person. He then fled the area and walked some 10 km back to the community. He called upon relatives whom he asked to drive him home. These relatives were looking after his car whilst his licence was suspended and were permitted to use the car in return for which they undertook to drive him wherever he wanted to go. For some reason, they refused to drive him home. The appellant angrily grabbed the keys to drive himself home but his intoxication and rage took over which led to the present offending.

Grounds 1 and 2

[13] It is convenient to deal with both grounds together. First it was put that the learned Magistrate erred in failing to have sufficient regard to the fundamental sentencing principle that a sentence of actual imprisonment is an option of last resort and that the error came about due, in part, to a misunderstanding of the starting point with respect to penalties for driving whilst disqualified.

[14] I accept that imprisonment is an option of last resort in the sense that, the sentencer should consider all of the other lesser options first and, only if the sentencer concludes that no lesser sentence is appropriate, should a sentence of imprisonment be imposed. I also accept the submission that there is no hard and fast rule that a person who is convicted for the first time of driving whilst disqualified must go to prison to serve an actual sentence of imprisonment. Whilst that is not an unusual outcome, the previous authorities of this Court emphasise the need for each case to be considered on its merits: see Smith v Torney (1984) 29 NTR 31 at 36; Seears v McNulty (1987) 89 FLR 154 at 164; Oldfield v Chute (1992) 107 FLR 413 at 416; Arnold v Trenerry (1997) 118 NTR 1 at 7; Stanischewski v Trenerry [2001] NTSC 50 at [12] to [13] per BF Martin CJ. However, in this case the learned Magistrate imposed an aggregate head sentence of imprisonment for three months for all three offences. It is clear that her Honour regarded the driving in a manner dangerous charge as very serious and as she pointed out, the offence of driving whilst disqualified occurred only three months into a 12 month licence disqualification.

[15] It was submitted that certain remarks which fell from her Honour indicated that she misunderstood the effect of Oldfield v Chute and other cases on the subject of driving whilst disqualified, when she said that “cases such as [Oldfield] and Chute talk about periods of imprisonment; they do not talk about anything other than periods of imprisonment”. Taken literally, this might be understood to mean that in such cases a sentence of actual imprisonment must inevitably follow conviction. If that is what her Honour meant to say, she is incorrect. However that may be, it is difficult to see how a head sentence of three months imprisonment was not fully justified, notwithstanding the matters which were put and accepted by the learned Magistrate, in mitigation.

[16] However, in my opinion her Honour erred in failing to consider home detention as an option. This sentencing option was first introduced in the Northern Territory in 1987 by the Criminal Law (Conditional Release of Offenders) Amendment Act 1987. The Northern Territory was the first jurisdiction to introduce home detention as a sentencing option. It is still not yet available in some jurisdictions although it is an option in New South Wales (s 7 of the Crimes (Sentencing Procedure) Act 1998).

[17] The responsible Minister in his second reading speech (Hansard, Debates, 24 September 1987, pp 1578-1582) addressed the purposes of the legislation which may be summarised as follows:

(1) sixty per cent of sentenced prisoners served 12 months or less;

(2) about one third of that group were sentenced for serious offences against the person;

(3) of the balance a large proportion were convicted of traffic offences including exceed .08% and driving whilst disqualified;

(4) most of the prisoners in the group relating to traffic offences posed no apparent threat to the community;

(5) the conditions of home detention will seek to address rehabilitation:

“This means that an offender who accepts a home detention order, in addition to strictions on his or her movements from home, might also be required to participate in alcohol rehabilitation programs, defensive driving courses or some other educational or training course designed to change personal factors which might have contributed to the offence. Young offenders, for example, might be required to participate in work skills programs.” (p 1579-80);

(6) the costs savings to the Territory were also significant. The Minister referred to “the rising rates of imprisonment and the enormous costs of building more prisons” (p1578); and

(7) the Minister emphasised the “strict and pervasive” system of supervision by random checks at any time of the day or night, the severe consequences of breaches and observed “… it must be remembered that an offender is serving a form of imprisonment in his own home” (p 1581).

[18] The present Sentencing Act came into force on 1 July 1996. The provisions relating to home detention orders are contained in Part III, Division 5, Subdivision 2 (s 44 to s 48). The scheme of home detention set out in the Act and regulations is not significantly different from what it was when first introduced. It is interesting to observe that s 7 lists home detention orders between suspended sentences and sentences of actual imprisonment which are not suspended in whole or in part. In Turner v Trenerry (NT Supreme Court, 17 January 1997, unreported) Kearney J referred to “the ascending order of sentencing dispositions in s 7 of the Sentencing Act” (at p 17). I think that the positioning of home detention orders in s 7 is at the very least an indication that home detention is almost as serious as a term of actual imprisonment. It is well understood that home detention orders are in fact a form of imprisonment, as the detainee’s freedom of movement is severely constrained. Further, the consequences of failure to comply can be very serious, particularly if the breach is constituted by further offending punishable by imprisonment, because in those circumstances the Court must revoke the order and order the offender to serve the whole of the term of suspended sentence without any credit being given for the time that the offender served under the order (see s 48(6) of the Sentencing Act).

[19] Consistently with the scheme of the Act, courts must always consider home detention orders as a real alternative to short sentences of actual imprisonment. Of course there are many situations where home detention will not be available. The Legislature has seen fit to provide that in the case of “violent offences” there must be a period of actual imprisonment, which has the effect that a home detention order is not an option. Given that many so-called “violent offences” are likely to result in a sentence of less than 12 months and many result in a very short sentence, the effectiveness of home detention as a sentencing option to deal with minor offending to that extent has been significantly curtailed. Further, some, perhaps many, offenders will not be eligible either because they are not suitable as individuals or because the place where they live is unsuitable, or because they do not consent to order. Magistrates and Judges are entitled to assume, if no submission is made for a home detention suitability report under s 45 of the Sentencing Act, that the offender’s counsel has taken instructions on that matter and therefore it is not a matter which need to be considered. A person’s history of non-compliance with court orders may make it plain that an actual sentence of imprisonment is the only available sentencing option. However, there are still many cases where it remains a real option and failure to properly consider it and, if it is decided to reject it, to articulate the reasons why, will amount to sentencing error.

Conclusion

[20] In the present case, counsel for the appellant clearly submitted that the learned Magistrate should consider home detention. It appears that home detention is available as an option in the appellant’s community. It is difficult to see why a period of home detention was rejected as a suitable option having regard to the fact that the total sentence imposed was imprisonment for three months suspended after one month. There is nothing in the appellant’s prior history to positively rule out home detention as a possibility. Clearly, as the Minister’s second reading speech indicated, the fact that he was convicted for the first time of driving whilst disqualified is not in itself a sufficient reason. The learned Magistrate gave no reasons other than it might be supposed that she regarded the offending as “too serious”. If that was the conclusion she reached, in my opinion, it was erroneous, inconsistent with the sentence actually imposed and inconsistent with the purpose of providing for home detention as a form of actual imprisonment.

[21] I therefore advised counsel that the appeal would be allowed on ground 2 and ordered a home detention assessment report as required by s 45 of the Sentencing Act. That report took a considerable time to come to hand because the appellant had left his community and his whereabouts were not known. Eventually he was located and assessed. Unfortunately for the appellant, the report assesses him as unsuitable for home detention and in those circumstances s 45 of the Sentencing Act precludes a home detention order.

[22] In these circumstances, the sentencing orders made by the learned Magistrate were correctly imposed. Consequently the order allowing the appeal is withdrawn and instead I order that the appeal be dismissed.