Lalara v Malogorski [2012] NTSC 53

 

PARTIES:                                         LALARA, Simeon

 

                                                         v

 

                                                         MALOGORSKI, Mark

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 29 of 2012 (21137670)

 

DELIVERED:                                   3 August 2012

 

HEARING DATES:                           16 July 2012

 

JUDGMENT OF:                              MILDREN J

 

APPEAL FROM:                               Court of Summary Jurisdiction

                                                         (MR G CAVANAGH SM)

 

Traffic Act, s 22

 

James v Turner (2006) 15 Tas R 375, applied.

 

Baumer v The Queen (1988) 166 CLR 51; Gumurdul v Reinke (2006) 161 A Crim R 87; Jorin v Wilson [2006] NTSC 46; Veen v The Queen (No 2) (1987-1988) 164 CLR 465, followed.

 

Dinsdale v The Queen (2000) 202 CLR 321; Turner v Trennery (1997) 1 NTSC 21, referred to.

 

 

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     A Pyne

    Respondent:                                  M McColm

Solicitors:

    Appellant:                                     North Australian Aboriginal Justice Agency

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    C

Number of pages:                             7


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Lalara v Malogorski [2012] NTSC 53

No. JA 29 of 2012 (21137670)

 

 

                                                     BETWEEN:

 

                                                     SIMEON LALARA

                                                         Appellant

 

                                                     AND:

 

                                                     MARK MALOGORSKI

                                                         Respondent

 

CORAM:     MILDREN J

 

REASONS FOR JUDGMENT

 

(Delivered 3 August 2012)

 

[1]       This is an appeal against sentence.  On 26 April 2012, the appellant pleaded guilty to one count that, on 8 November 2011, at Darwin, he drove a motor vehicle on a road, namely, Ross Smith Avenue, with a medium range blood alcohol content, namely, 0.140 percent, contrary to s 22 of the Traffic Act.

[2]       The facts, which were not in dispute, were that, at 10:00 pm on 8 November 2011, the appellant was seen driving a black Holden Commodore along Ross Smith Avenue, Parap towards Fannie Bay.  The vehicle was followed by police and was apprehended in the BP Service Station, Fannie Bay for the purpose of a roadside breath test.  When the test was administered, it returned a positive reading.  The appellant was informed that he was under arrest for the purpose of the breath analysis.  He was taken to the Darwin watch house, where he participated in a breath analysis which returned a positive reading of 0.140 percent.  At the time of the offence, it was put that there was “minimal” street lighting and the weather was fine, and that there were two passengers in the vehicle.

[3]       There were no aggravating circumstances, such as driving in an erratic manner alleged.  It was not suggested that the vehicle was, in any other way, being driven unlawfully. 

[4]       The submission made by the appellant’s counsel in mitigation in the Court of Summary Jurisdiction was that the appellant had been drinking with family at Mindil Beach.  He was asked to drive by the other persons there because they were so drunk that they were unable to drive, and he was the only one with a licence.  It was submitted that he “succumbed to the pressure to drive”.  It was submitted that he had spent a total of nine days in custody in relation to this offending.  The appellant’s counsel submitted to the learned Magistrate that he should consider either not imposing any further penalty, or imposing a fine, which he had the capacity to pay.

[5]       As to the appellant’s personal circumstances, it was put in the Court below that he was employed as a Senior Ranger at Groote Eylandt.  He had been so employed on a full-time basis for eight years.  His normal pay was around $1,700.00 a fortnight.

[6]       The prosecution had tendered the appellant’s prior record, which was very extensive.  There was a conviction for driving a motor vehicle with a low range blood alcohol content, namely, 0.074 percent on 22 September 2010.  Prior to that, his last conviction for a similar offence was on 16 February 1994 when he was found guilty of what would now be a high range offence, with a reading of 0.189 percent.  There were four other convictions for similar offending in 1992 and 1991. 

[7]       There was also a conviction on 21 March 1996 for the offence of manslaughter for which the appellant received a sentence of imprisonment for nine years, with a non-parole period of five years.  That sentence was backdated to 8 May 1995.  It appears that he was released in the year 2000, but on 7 December 2000, the Darwin Court of Summary Jurisdiction revoked his parole.  Subsequently, he was released again, and then on 4 December 2001, he again had his parole revoked.  No information that was before the Court as to why his parole was revoked.  There were no allegations of other offending at that time.

[8]       No submission was made by the prosecutor in the Court below that a sentence of actual imprisonment was warranted.

[9]       The learned Magistrate adjourned briefly to consider what penalty to impose in relation to this matter, as well as some other matters to which the appellant had pleaded guilty and which were then dealt with at the same time. 

[10]     After referring briefly to the facts, the learned Magistrate observed that, whilst many of these prior convictions for drink driving were somewhat aged, they are “of a continuous nature broken by several years when, apparently, he was in gaol.  But then only quite recently, and once again in 2010, he was convicted of drink driving, such that he presents as a person with seven previous convictions for drink driving.  Here, he is in a main street in Darwin, drink driving again, with no particular mitigation in terms of the reasons and, in my view, it is timely that he is sentenced to imprisonment for this kind of offence.  There must be a strong message go out from the courts to people who continue to drink and drive that, sooner or later, they will be imprisoned by way of punishment and by way of deterrence to them and other drink drivers.”

[11]     The grounds of the appeal, as set out in the amended notice of appeal, are as follows:

1.        That the learned Stipendiary Magistrate failed to consider adequately that the principle of imprisonment should be a punishment of last resort;

2.        That the learned Stipendiary Magistrate failed to apply the two-step process in Dinsdale v The Queen;[1] and

3.        That the sentence was manifestly excessive.

[12]     After hearing the submissions, I allowed the appeal and quashed the sentence imposed, except for the period of disqualification imposed by the learned Magistrate and, in lieu thereof, I imposed a fine of $1,000.00 with a $40.00 victim impact levy.  I said I would provide my reasons in due course.  These are my reasons.

[13]     The principle that imprisonment should be imposed only as a last resort is well established.[2]  Except in very obvious cases, before imposing an actual sentence of imprisonment where other sentencing options might be reasonably available, the sentencer should have then indicated that he or she is contemplating that course, particularly if there is no submission from the prosecution that an actual sentence of imprisonment is required.

[14]     It is not obvious to me that the objective circumstances of this case warranted an actual sentence of imprisonment.  There were no aggravating circumstances.  The only matter which the learned Magistrate referred to at the time was the appellant’s “23 pages of prior convictions”, as well as the seven prior convictions for drink driving.

[15]     But as the learned Magistrate was well aware, apart from the low range conviction in 2011, there was a gap of 17 years before one gets to the next conviction of a similar nature, and all of those convictions occurred in a very narrow timeframe.  Whilst it is likely that the appellant spent as much as nine years of that 17-year period in gaol, there is nevertheless still a significant gap.

[16]     It is not readily apparent to me why some other disposition, other than a sentence of imprisonment, was warranted.  The appellant had, I note, a capacity to pay a significant fine, but no other alternatives were considered.

[17]     In cases of strict liability, it is pertinent to recall what was said by the High Court in Baumer v The Queen,[3] where their Honours in a joint judgment referred to the circumstances of the appellant in that case, who had “literally an appalling record”, and as to whether that increased the seriousness of the offence.  Their Honours said:

“If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be “kept away” for the protection of the public is open to misunderstanding. Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more. In applying a section like s 154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence.”

Even in the case of offences where there is a mental element which needs to be proved, it is well established that the antecedent criminal history of an offender, whilst it is a factor which may be taken into account in determining the sentence to be imposed, cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence, because to do so would be to impose a fresh penalty for past offences, see Veen v The Queen (No 2).[4]

[18]     In my opinion, the learned Magistrate gave far too much weight to the appellant’s previous convictions.  Even allowing for the fact that some weight ought to have been attached to them, the objective circumstances of the offending did not warrant an actual term of imprisonment.

[19]     In my opinion, the appropriate disposition in this case was a significant fine which, together with the period of licence disqualification which the learned Magistrate ordered, and the fact that the appellant had already served some time on remand, was a sufficient penalty and served the necessary interests of general deterrence, special deterrence and protection of the public.



[1] (2000) 202 CLR 321.

[2] Turner v Trenerry [1997] 1 NTSC 21, Kearney J; Gumurdul v Reinke (2006) 161 A Crim R 87 at 92; James v Turner (2006) 15 Tas R 375 at 377-8; Jorin v Wilson [2006] NTSC 46 at para 51 per Angel J.

[3] (1988) 166 CLR 51 at 57 to 58.

[4] (1987-1988) 164 CLR 465 at 477.