Gration v O’Neill & Gration v Davis  NTSC 41
PARTIES: RICHARD BARRY GRATION
RICHARD BARRY GRATION
STUART AXTELL DAVIS
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: JA 42 OF 2010
JA 44 OF 2010 (20941207)
DELIVERED: 15 JUNE 2011
JUDGMENT OF: MILDREN J
APPEAL FROM: MR CAVANAGH SM
Sentencing Act, s 43(6)
Weapons Control Act, s 3, s 7(1), s 7(3), s 7(4), s 7(5), s 20
Veen v The Queen (No 2) (1988) 164 CLR 465; applied
Presswell v Bourgoyne  NTSC 67; followed
Moore v Materna (1996) 136 FLR 142; Parnell v Rigby (2008) 24 NTLR 1; Pepperill v Burgoyne  NTSC 50; R v Downie & Dandy  2 VR 517; R v Lui  QCA 366; R v Olbrich (1999) 199 CLR 270; Russell v Littman  NTSC 50; Van Dang v Moore  NTSC 68; referred to
R v Story  1 VR 359
Appellant: E Armitage
Respondent: D Dalrymple
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
Gration v O’Neill & Gration v Davis  NTSC 41
RICHARD BARRY GRATION
RICHARD BARRY GRATION
STUART AXTELL DAVIS
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 15 June 2011)
 These matters are appeals against sentences imposed by the Court of Summary Jurisdiction.
 On 7 January 2010, the appellant appeared in the Court of Summary Jurisdiction and was sentenced in relation to a number of offences all committed on 2 December 2009 as detailed below:
Sentenced to 4 months imprisonment to commence 2 December 2009.
firearm without license
possess property suspected of being stolen or unlawfully obtained
Resist police in execution of duty
Sentenced to 1 month imprisonment to be served concurrently with the penalty imposed on Counts 1 to 6.
Possess Dangerous Drug
Convicted and not further punished
 All sentences were ordered to be suspended from 13 January 2010 for 12 months on conditions including supervision and requiring the appellant to obey all directions in relation to attendance at the Royal Darwin Hospital, Opiate Pharmacotherapy program.
 As at 13 January 2010 when the appellant was released from custody, there remained outstanding a period of two months and 19 days imprisonment left to serve should he subsequently be found in breach of the conditions of his suspended sentence.
 On 20 February 2010, the appellant committed the offence of possessing a controlled weapon namely a hunting knife with a folded blade at night and was sentenced on 15 September by Mr Cavangh SM to two months imprisonment backdated to 1 August 2010.
 In relation to the remaining term of the suspended sentence imposed on 7 January 2010, the Court ordered the appellant to serve the “remaining term of two months and two weeks” of the suspended sentence cumulatively upon the two months imprisonment ordered in relation to the offence of possession of a controlled weapon at night.
 The total aggregate period of imprisonment thereby ordered was effectively four months and two weeks which would have expired on 13 December 2010.
Grounds of Appeal
 The grounds of appeal are set out in the original Notice of Appeal and as further amended are as follows:
1. That the overall sentence imposed by the learned sentencing Magistrate was manifestly excessive.
2. Placed too much weight on the defendant’s prior record.
3. That the learned sentencing Magistrate, in ordering the whole of the restored sentence to be served cumulatively, failed to take into account the totality principle.
4. That the learned sentencing Magistrate erred in sentencing the appellant on findings of fact which included certain findings that are said to be in error.
5. That the learned sentencing Magistrate acted upon a wrong principle when he found that the offence was prevalent, such finding being unsupported by submissions, evidence or reasons.
6. That the learned sentencing Magistrate failed to accord procedural fairness to the appellant as to his finding that “it is becoming a very prevalent thing for men to carry these kinds of weapons”.
7. That the learned sentencing Magistrate erred in that he failed to give proper consideration or weight and failed to identify any discount for the appellant’s plea of guilty and other matters raised in mitigation.
Weapons Control Act
 Sub-section 7(1) of the Weapons Control Act provides:
A person must not, without lawful excuse, proof of which is on the person, possess, carry or use a controlled weapon in a public place or school.
Penalty: If the offender is a natural person – 200 penalty units or imprisonment for 12 months.
 By virtue of ss 7(3) it is a circumstance of aggravation if the person is found guilty of an offence against ss 7(1) at night time and in those circumstances the maximum penalty is twice the penalty specified in ss 7(1).
 Sub-section 7(4) provides:
In this section, lawful excuse includes:
(a) the pursuit of a lawful employment or lawful duty;
(b) participation in a lawful sport, lawful recreation, lawful entertainment or lawful activity; and
(c) the legitimate collection, legitimate display or legitimate exhibition of weapons,
but does not include for the purpose of self-defence.
 Sub-section 7(5) provides:
In considering whether a person has a lawful excuse to possess, carry or use a controlled weapon, the court must have regard to the circumstances (including the time and location) of the incident.
 There is a definition of “controlled weapon” in s 3 which includes a knife. There is no definition of a knife which therefore bears its ordinary English meaning.
 At the time of the hearing before Mr Cavanagh SM, the appellant was also charged with a number of drug offences to which he pleaded not guilty. At the commencement of the hearing, he pleaded guilty to the possession charge. These charges related to some small amounts of prohibited drugs located inside the appellant’s car and also underneath it on the road where it was parked. After hearing all of the evidence, the learned Magistrate had a reasonable doubt and found the appellant not guilty in relation to those charges.
 The learned Magistrate then proceeded to deal with the possession of the knife charge and the breach of the suspended sentence.
The facts in relation to the possession charge
 At about 3:45 am, the appellant was stopped by plainclothes police officers in a laneway just off Mitchell Street outside Outback Jacks and next to the Crowne Plaza in Darwin. The appellant was a specific target by police for a drugs operation and he was searched. During the search, the weapon was located. The evidence called by the prosecution did not indicate where the weapon was found. At the sentencing hearing, it was submitted on the appellant’s behalf that the knife was in a bum-bag that he was wearing around his waist. This submission was not contested.
 The knife, which was tendered in evidence as Exhibit 1, is a folding knife with a single blade approximately a little over 8.5 cm long with a handle approximately 11.5 cm long. The learned Magistrate described it as not something which could be described as anything like a normal pocket knife. He said it was a largish weapon and a dangerous weapon. It is certainly larger than most pocket knives. In written submissions, counsel for the appellant described it as a hunting knife. If it were to be used in a fight or a brawl, it certainly has the potential to inflict a serious injury, but it is not in itself inherently dangerous. As far as knives go, I would characterise it myself as towards the low end of knives that are potentially dangerous.
 No evidence was given by the appellant in order to establish a lawful excuse.
 The knife itself had been the subject of Count 2 on the charges that were dealt with by the Court on 7 January 2010. Under s 20 of the Weapons Control Act, unless the Court made an order that that the knife be returned to the appellant, the knife was automatically forfeited to the Territory. No such order was made, but nevertheless the knife was returned to the appellant by the police. He was not given back the other knife the subject of the charges, nor was he returned the gun. It was put on his behalf that he did not realise that by having the knife in his possession on the night in question he was breaching the law. The learned Magistrate did not accept that submission. In my opinion that is not surprising. As the learned Magistrate rightly pointed out, the appellant was a 45 year old male with a long history of prior offences relating to the carrying of knives. He had already pleaded guilty to the same charge in relation to the same knife only six weeks before.
The grounds of appeal
 I will deal with the grounds of appeal in the order in which they were argued at the hearing.
 This ground complains that the learned sentencing Magistrate erred in including findings of fact that the appellant had the knife in his pocket and that the offending occurred in “circumstances of drugs being found in and around your car… and in suspicious circumstances”.
 I accept that the learned Magistrate was incorrect in finding that the appellant had the knife in his pocket. No such finding was available on the evidence. It was put that the offending was objectively more serious if the knife was in the pocket rather than in a zipped up bum bag mixed up with other items.
 I think it is necessary to bear in mind that the policy of the legislation is to deter people from carrying knives of any description, particularly at night, in a public place unless they have a lawful excuse for doing so. The reason for this is fairly obvious. Knives are dangerous weapons and have the potential to cause serious injury. The legislation makes it clear that carrying knives even for self-defence is not a legitimate reason for having a knife in these circumstances. All too frequently, knives are used to inflict serious injury in the course of a heated argument often fuelled by alcohol or dangerous drugs. It is true that a knife which is in a pocket may well be slightly more accessible than a knife which is in a zipped up bag. It all depends on the circumstances. There was nothing in the facts of this case to suggest that there was any immediate likelihood of the knife being used for an illegitimate purpose. The appellant was not under the influence of alcohol or drugs at the time. He was in the presence of another person, but there was nothing to indicate that they were having an argument or a dispute of any kind. In those circumstances, I do not think that the Magistrate’s error has any significance.
 The point about the suggestion that the knife was in the appellant’s possession in suspicious circumstances is a different matter. Counsel for the appellant submitted that a sentencer may not take into account facts in a way which is adverse to the interests of an accused person unless those facts have been established beyond reasonable doubt, relying upon R v Story.
 In my opinion, it is not clear that the “suspicious circumstances” to which the learned Magistrate was referring related to the possession charges of which he had found the accused not guilty.
 Counsel for the respondent, Mr Dalrymple, submitted that the circumstances were suspicious objectively; but his Honour expressly said that the circumstances were such that he had found the accused not guilty of any offences in relation to the circumstances other than the offence to which he had pleaded guilty. It was submitted that little weight could be attributed to that circumstance influencing his Honour’s decision. His Honour specifically referred to the fact that offending occurred late at night in the central business district (CBD) only a month after he had been released after conviction for similar offending.
 I do not think that the Magistrate was intending to infer by referring to the suspicious circumstances of which the accused had been found not guilty, to the possibility that he had been in possession of the drugs. This would not make any sense. Rather, I think, he had in mind that not only had the appellant no lawful excuse for carrying the weapon, but that the only explanation offered was one which he was not prepared to accept. Looked at in this way, I do not think it can be inferred that his Honour was treating the “suspicious circumstances” as an aggravating factor. I think this becomes clearer when, later on, his Honour observed that because of his previous criminal history, he did not accept that the appellant did not know that he should not have had the knife in his possession in the circumstances which prevailed at the time, by which I think he meant late at night in the CBD in Darwin whilst he was on a suspended sentence for a weapons offence.
 I am not satisfied that his Honour erred. I would therefore dismiss this ground of appeal.
Grounds 3 and 4
 These grounds complain about the learned Magistrate’s observation that it is “becoming a very prevalent thing for men to be carrying these kinds of weapons”.
 Counsel for the appellant submitted that there was no evidence that the possession offence was a prevalent offence. Furthermore, the learned Magistrate gave no warning that he intended to treat the matter as a prevalent offence with the result that counsel was not given the opportunity to respond by submitting any facts or argument to the contrary. Thus, it was put that there was a want of procedural fairness.
 In Parnell v Rigby, Martin (BR) CJ said:
Section 5(2)(g) of the Sentencing Act 1995 (NT) requires the court to take into account “the prevalence of the offence”. The court is entitled to draw on its own experience, and the experience of other criminal courts, in making a judgment as to prevalence. In respect of less common offences, a court may not, without evidence or reliable statistics, be in a position to make such a judgment. However, numerous offences are so commonly before the criminal courts that evidence will not be required in order to assess the prevalence of the offence.
 On the other hand, there are other decisions of this Court, Moore v Materna and Russell v Littman where single Judges of this Court have found that the Magistrates concerned in those cases had no basis upon which to make a finding as to prevalence.
 I was also referred to R v Lui, where the Queensland Court of Appeal upheld an appeal on the ground that the sentencing Judge had treated local prevalence of a crime as a major factor in the sentencing disposition without first giving the parties an opportunity to be heard on the matter. Fraser JA, with whose judgment McMurdo P and Frieberg J agreed, citing the remarks of Calloway JA in R v Downie & Dandy with approval, said:
… the more informal the procedure by which prevalence is established, the greater the need for the observance of procedural fairness. For there is all the more risk that a first impression, even a first impression that is strongly held by the sentencing judge, will be shown to be wrong if counsel is given an opportunity to make submissions, produce statistics or adduce other evidence or material… A judge’s belief does not exonerate him or her from the duty of procedural fairness, for he or she may be mistaken. Even knowledge does not absolve the judge from the duty to observe the audi alteram partem rule, for its observance conduces to acceptance on the part of both the prisoner and the public that justice has not only been done but has also been seen to be done…
Even if [the offence in R v Downie & Dandy] is locally prevalent, the applicants should have been given an opportunity by their counsel to argue that that was not so or that it should not result in a more severe sentence.
In reaching that conclusion, I intend no departure from what was said by Winneke P, in whose judgment Charles JA and Hedigan AJA concurred, in R v Li  1 VR 637. His Honour said at 643:
‘[I]t is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise... Procedural fairness requires no less.’ [Emphasis added.]
The words I have italicised are there to remind us that a judge does not have to invite submissions about such matters as the prevalence of armed robbery or the need for general deterrence in relation to drug trafficking. Even local prevalence, and the prevalence relevant to sentencing is often local, may be a matter of notoriety: for example, drunkenness in a country town or vandalism in a particular neighbourhood. In all such cases the applicant or his or her counsel should know without being told that there is an adverse factor that is likely to be taken into account.
 Neither counsel produced any statistical evidence either before the Magistrate or before this Court to show that this particular offence was a prevalent one. So far as this Court is concerned, as the offence is a summary offence, there are very few cases likely to be dealt with by a Judge of this Court. It appears that there have been only two Justices Appeals, both heard in 2003. In neither of those cases was prevalence referred to. The only other decision to which I was referred is the decision of Martin (BR) CJ in Van Dang v Moore, which amongst other things dealt with a sentence of 12 months imprisonment for going armed in public with a swiss army knife.
 In that case his Honour said:
The carrying of knives and the use of knives when disputes arise is far too common in our community and experience in the criminal courts well demonstrates the tragic consequences that follow when knives are used in disputes and physical confrontations. General deterrence was of particular importance in the exercise of the sentencing discretion.
 That was a case where the charge was going armed in public in such a manner as to cause fear to a person of reasonable firmness and courage and it was put that the comments made by the former Chief Justice must be read in that light.
 For my part, I agree with the former Chief Justice. The carrying of knives is far too common and this Court and no doubt the Court of Summary Jurisdiction deal with cases of violence where knives are used on a regular basis. It is for this reason, no doubt, that the Parliament saw fit to pass the Weapons Control Act in the first place. In any event, the learned Magistrate did not say that the offence was prevalent, only that the carrying of knives is prevalent. In my opinion, the learned Magistrate was correct to take this into account and it was a matter of such notoriety that counsel should have been aware that it was likely to be taken into account in that manner. I would therefore dismiss this ground of appeal.
 The submission was that the learned Magistrate placed too much weight on the appellant’s prior record. It was submitted that in concentrating on the appellant’s prior criminal history, the learned sentencing Magistrate failed to make a proper assessment as to the objective seriousness of the offending and arrived at a sentence which was disproportionate to the gravity of the offence.
 I am unable to accept this submission. The offence occurred only very shortly after he had been released from custody and placed on a suspended sentence for, amongst other things, the identical offence with the identical weapon. As the learned Magistrate pointed out, he had been convicted of weapons offences previously not only in the Northern Territory, but in Victoria.
 The relevance of prior convictions was dealt with by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2), where their Honours said:
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell  AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
 Plainly, the offence in this case was very relevant to the moral culpability of the offender because it manifested a continuing attitude of disobedience to the law. I do not think that it has been demonstrated that the Magistrate’s sentence in those circumstances is disproportionate to the gravity of the instant offence. I would therefore dismiss this ground of appeal.
 This ground complains that the learned Magistrate erred in failing to give proper consideration or weight and in failing to identify any discount for the appellant’s plea of guilty. In his sentencing remarks, the learned Magistrate said:
However, you have pleaded guilty although it was a late plea, and it does stand you in good stead and I take that into account. As well as the efforts you have made to come to grips with a real and apparent drug problem.
 The learned Magistrate does not indicate how he took the plea of guilty into account. It was submitted that the failure to stipulate that a discount had been given at all was an error. I do not accept this submission. As Southwood J said in Presswell v Bourgoyne:
No error in sentencing an offender is made by a court simply because a court does not expressly stipulate the specific amount by which a sentence of imprisonment has been discounted by the court because an offender has pleaded guilty: Markarian v The Queen (2005) 79 ALJR 1048. There is no specific discount in sentence for a plea of guilty. The discount in sentence to be given to an offender for pleading guilty will vary according to the circumstances of each case. However, it is preferable for a court to specify the amount of any reduction in a sentence of imprisonment that an offender receives for pleading guilty. To do so ensures that the court fully discloses the reasoning of the court prior to pronouncing sentence: Kelly v The Queen (2000) 10 NTLR 39 at .
 I think it plain from his Honour’s very brief remarks on sentencing that he took the plea of guilty into account. Being a late plea and having regard to the strength of the prosecution case, not a great deal of weight could have been given to the plea. It would be surprising if the learned Magistrate gave it any more than say somewhere between 10 and 15 per cent. I find it difficult to believe that the Magistrate had in mind a head sentence of something in order of two months and six days or two months and 10 days, which such a discount would have represented.
 However, the learned Magistrate did not order the whole of the sentence outstanding be served. The order his Honour made, as pointed out by Mr Dalrymple, was to order two months and two weeks of the suspended term to be served, whereas there were in fact two months and 19 days of the suspended term remaining. I agree with Mr Dalrymple that his Honour was aware that he was not in fact ordering the whole of the outstanding sentence to be served as is evident from his comments at pages 57 and 58 of the transcript. The result was that the appellant got a discount of 14 days on the total sentence that was available to be ordered to be served. I think that it can be inferred that this is what the learned Magistrate had in mind when he said he took the plea into account.
 I therefore dismiss this ground of appeal.
 This ground complains that the sentence of two months imprisonment was manifestly excessive. As has been pointed out many times, it is not enough merely for a Judge of this Court to consider that the sentence was excessive; it must be manifestly so.
 Bearing in mind that the offence was committed so close after the previous offending and it involved the same knife and it took place at night which is an aggravating circumstance, I am unable to say that the sentence was manifestly excessive. I would therefore dismiss this ground.
 Ground 2 was amended at the hearing of the appeal to complain that by ordering the whole of the restored sentence be served cumulatively on the sentence imposed the learned Magistrate failed to take into account the totality principle.
 No complaint was made that the learned Magistrate erred in restoring most of the sentence held in suspense given that the offending occurred so soon after the previous convictions and release from custody in relation thereto. It is difficult to see how there could have been any complaint that the learned Magistrate should have found that in the circumstances it was unjust to restore the portion of the sentence which he restored.
 What is submitted is that he erred in not making the balance of the restored sentence concurrent.
 Section 43(6) of the Sentencing Act provides:
Where a court orders an offender to serve a term of imprisonment that had been held in suspense, the term shall, unless the court otherwise orders, be served:
(a) immediately; and
(b) concurrently with any other term of imprisonment previously imposed on the offender by that or any other court.
 If that provision had been strictly applied, bearing in mind that the two month sentence was backdated to commence on 1 August 2010, the effect of that provision would seem to be that the restored sentence would have commenced on 15 September 2010 and to that extent would have been partially concurrent. However, no point was made of this during the hearing of the appeal and I will assume for the purposes of this decision that the Magistrate had the power to effectively order that the restored sentence be served totally concurrently with the two month sentence imposed so that there was a total effective sentence of two months and two weeks.
 Reference was made to the decision that Olsson AJ in Pepperill v Burgoyne, where his Honour accepted that the totality principle applied in cases of this kind and that might provide an appropriate methodology for a court to impose either concurrency or only a partially concurrent sentencing outcome. I proceed to deal with this ground of appeal on that basis.
 The first thing that I would observe is that the learned Magistrate in his sentencing remarks indicated that he had taken into account the totality principle and that he had considered whether he should order concurrency or accumulation. His view was that having regard to the need for deterrence and how close this was to the appellant being released on the suspended sentence the interests of justice required that he order that there be an accumulation. In arriving at this conclusion, his Honour was well aware of the appellant’s personal circumstances, which included his drug addictions and the efforts that he was making to overcome them. That, however, seemed to have had little causal connection with the offending.
 In my view, it has not been demonstrated that his Honour erred in the exercise of his discretion. I would therefore dismiss this ground of appeal.
 The appeal is dismissed.
  1 VR 359 at 369 approved by the High Court in R v Olbrich (1999) 199 CLR 270 at 281 .
 (2008) 24 NTLR 1 at 9 .
 (1996) 136 FLR 142.
  NTSC 50.
  QCA 366.
  2 VR 517 at 522-523.
 R v Lui  QCA 366 at .
  NTSC 68.
 At .
 (1988) 164 CLR 465 at 477-478.
  NTSC 67 at .
  NTSC 50.