Andalong v Jones

[2019] NTSC 87

CITATION:Andalong v Jones [2019] NTSC 87

PARTIES:ANDALONG, Samuel

v

JONES, Stephen Phillip

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 28 of 2019 (21903826)

DELIVERED:  18 December 2019

HEARING DATES:  28 September 2019

JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Manifest excess – Where maximum penalty imposed per ss 21(1) and s 31(1) of the Traffic Act 1987 (NT) – Whether unjust not to reduce head sentence from maximum on account of timely plea of guilty

CRIME – Appeals – Appeal against sentence – Failure to take into account relevant consideration – Whether sentencing Judge erred by failing to give sufficient weight to timely plea of guilty

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive

SENTENCING – Appeal against sentence – Whether substantial miscarriage of justice per Local Court (Criminal Procedure) Act 1928 (NT) s 122

SENTENCING – Mitigating factors – Plea of guilty

SENTENCING – Relevant factors on sentence – Multiple offences – Accumulation, concurrency and totality

Traffic Act 1987 (NT) s 21(1), s 31(1)
Sentencing Act 1995 (NT) s5(2)(j), s 50
Local Court (Criminal Procedure) Act 1928 (NT) s 177(2)(f)

Andalong v O’Neil [2017] NTSC 77; 328 FLR 340, Bugmy v The Queen [1990] HCA 18; 169 CLR 52, Bugmy v The Queen [2013] HCA 37; 249 CLR 571, Burgoyne v Dixon [2004] NTSC 37; 150 A Crim R 1, Cameron v The Queen [2002] HCA 6; 209 CLR 339, Cardamone v The Queen [2019] VSCA 190, Dixon v Pryce (1996) 135 FLR 27, Emitja v The Queen [2016] NTCCA 4; 39 NTLR 159, Hales v Garbe [2000] NTSC 49, Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520, Hill v Arnold (1976) 9 ALR 350, Hunter v The Queen [2013] VSCA 385; 40 VR 660, Jambajimba v Dredge (1985) 33 NTR 19, Janima v Edgington (Supreme Court of the Northern Territory, Mildren J, 6 September 1995), JKL v The Queen [2011] NTCCA 7, Kelly v The Queen [2000] NTCCA 3; 10 NTLR 39, Morris v Heath [2017] NTSC 79; 82 MVR 304, Noakes v The Queen [2015] NTCCA 7, Pearce v The Queen (1998) 194 CLR 610, Phillips v The Queen [2012] VSCA 140; 37 VR 594, R v Thomson; R v Houlton [2000] NSWCCA 309; 115 A Crim R 104, The Queen v Kilic [2016] HCA 48; 259 CLR 256, Van Toorenburg v Westphal [2011] NTSC 31, Veen v The Queen (No2) [1988] HCA 14; 164 CLR 465, Whitehurst v The Queen [2011] NTCCA 11, referred to.

REPRESENTATION:

Counsel:

Appellant:M Aust

Respondent:  D Castor

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions (NT)

Judgment category classification:    B

Judgment ID Number:  BLO1908

Number of pages:  21

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

Andalong v Jones [2019] NTSC 87

No. LCA 28 of 2019 (21903826)

BETWEEN:

SAMUEL ANDALONG

Appellant

AND:

STEPHEN PHILLIP JONES

Respondent

CORAM:    BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 18 December 2019)

Introduction

1. This is an appeal against sentences imposed by the Local Court on 6 June 2019. The appellant was dealt with for traffic offending arising out of a single episode of driving on 20 October 2018. Following the entry of pleas of guilty the appellant was convicted and sentenced as follows:

   ·     Count 1 (drive with high range blood alcohol content): 12 months imprisonment.

   ·     Count 2 (drive disqualified): 12 months imprisonment, cumulative as to 4 months with the sentence on count 1.

   ·     Count 4 (drive unregistered): one month imprisonment, concurrent with count 1.

   ·     Count 5 (drive uninsured): fined $1600 and a victim’s levy of $150.

   ·     Count 3 was withdrawn.

2. The total effective sentence was 16 months imprisonment which commenced on 10 May 2019 to reflect time spent in custody.

3. A non-parole period of 8 months was imposed. The appellant was disqualified from driving for 10 years.

4. The terms of imprisonment imposed for counts 1 and 2 are the maximum terms available under the Traffic Act 1987 (NT) (‘Traffic Act’) for the offences of drive with a high range level of alcohol in the blood, contrary to s 21(1), and drive while disqualified, contrary to s 31(1).

5. It is unusual for the maximum penalty to be imposed in a given case. That does not however mean the maximum penalty set by the legislature will never be imposed. What is not clear from the record of the proceedings in the Local Court is whether any adjustment to the sentences of imprisonment was made on account of the entry of timely guilty pleas. The imposition of the maximum penalty would tend to indicate the pleas were not taken into account. No mention was made during the course of the learned sentencing Judge’s remarks of how the pleas of guilty were taken into account. After the sentence was passed and in response to a question from the appellant’s counsel to the sentencing Judge about how the pleas were taken into account, the sentencing Judge remarked that the pleas of guilty had been taken into account and that the Court was not required to declare the sentence that would otherwise be imposed but for the pleas.[1]

6. Although it is desirable for a sentencing Judge to indicate the extent of any discount applied to have regard to guilty pleas, it is not an error to fail to do so.[2] A failure to quantify any discount for a plea does not in itself constitute error. Further, it is appreciated the plea of guilty may be reflected in the imposition of a lesser sentencing option in the sentencing hierarchy, rather than simply a quantitative reduction. However, given the unusual outcome of the imposition of the maximum penalty on two of the charges, an explanation of how the pleas were taken into account in the sentencing process would have been highly desirable.

7. The four grounds of appeal are as follows:

   1.   The sentence on count 1 was manifestly excessive.

   2.   The sentence on count 2 was manifestly excessive.

   3.   The total effective sentence was manifestly excessive.

   4.   The learned sentencing Judge erred in failing to give sufficient weight to the appellant’s early pleas of guilty.

   Proceedings before the Local Court

8. As would be expected, in a case involving pleas of guilty to charges brought under the Traffic Act, the proceedings were brief. After the appellant entered pleas of guilty to the charges, the facts were read and brief submissions made by both counsel. It was obvious, and acknowledged by the appellant’s counsel, that the only reasonable disposition would be a term of imprisonment. The appellant’s counsel submitted a partially suspended sentence with conditions was appropriate. Given that the offending was a serious example of offending of this kind and given the appellant’s poor history of traffic offending, there could be no criticism of the sentencing Judge’s decision to decline to impose a partially suspended sentence.

9. The facts were that on the date of the offending (20 October 2018) the appellant became intoxicated. He drove a Landcruiser outbound on the Stuart Highway, about 45 kilometres north of Katherine. He lost control of the vehicle, veering onto the left side of the north-bound lane and onto the gravel. He then veered right, across both north-bound lanes, then across a grass medium strip and both south-bound lanes. The vehicle flipped a number of times, coming to rest on its roof on the verge of the south-bound lanes.

10. The appellant was taken by ambulance to Katherine District Hospital for medical attention. During that process the appellant provided a blood sample which returned a reading of 0.330 grams of alcohol per 100 mls of blood.

11. The road conditions at the time were described as good. The traffic flow was low and there were no passengers in the vehicle. After relevant checks, the appellant was found to have been disqualified from driving at the time of the incident. The vehicle was also found to be unregistered.[3]

12. As to the appellant’s subjective circumstances, the Local Court was told he was 49 years old, he was originally from Lajamanu where extended family continued to live and he had been living in Katherine prior to being remanded in custody. He is married. He has no children with his current wife and has no contact with a child from a previous relationship. He was educated to year 9 in Lajamanu and Alice Springs. He had previously worked in plumbing and carpentry but his work history was now dated. He has medical conditions, including Type 1 diabetes and high blood pressure for which he is medicated.[4]

13. The appellant’s poor driving history was acknowledged by his counsel in the Local Court, referring correctly to the fact that the current offending occurred shortly after the appellant had served a term of imprisonment for six months for his most recent prior offending. Counsel in the Local Court submitted the appellant would benefit from supervision as he had not participated in alcohol rehabilitation for a number of years. The Local Court was also told the appellant spent one night in hospital after the offending incident. As above, in my view a non-parole period rather than a suspended sentence was well justified.

14. The sentencing Judge remarked that the appellant does not listen to court orders and keeps driving with high-range blood alcohol readings despite being disqualified.[5] It was noted that the appellant had just been released from gaol before the offending and the dangers to the appellant and others were emphasised. The sentencing Judge remarked:[6]

    It doesn’t seem that anything will stop you, and today, I am giving you a sentence to try to get the message through to you; to get the message to everybody else that this repetitive drink driving with high-range blood alcohol, even though you’re disqualified, it must stop. And the sentence is also directed at protecting the community.

15. In a case of this kind, namely repeat drink driving coupled with repeat disqualified driving, there could be no criticism of the general approach at the core of the sentencing process in the Local Court. The sentence was required to emphasise general and specific deterrence and community protection. The sentence was still required to be a proportionate sentence, notwithstanding the appellant’s previous convictions. The pleas of guilty did not receive express attention in the Local Court. While usually the failure to mention a principle would not permit a conclusion to be drawn that it was overlooked and while remarks in summary courts are not to be critically analysed,[7] when the unusual step is taken to impose the statutory maximum, some reasons for how the plea was regarded might be expected.

16. This was plainly a serious example of offending of this kind. The drink driving charge in particular could properly be regarded as being within the worst category of offending for cases of this generic kind. There could be no mitigation on account of good character. The appellant is a recidivist traffic offender. Disqualification from driving has not deterred him in the past. Over the past 28 years, the appellant has managed to accumulate 13 convictions for driving whilst disqualified and 12 for drink driving at various levels. As in the instant case, on almost all occasions in the past the same two charges arose out of the one course of conduct. The appellant’s record of previous offending also includes convictions for other traffic offences of lesser relevance to the current sentencing exercise. Repeat delinquent drivers like the appellant present unique sentencing challenges. Offenders like the appellant present ongoing dangers to the community, based on their past responses to court orders. Imprisonment is generally the only reasonable available sentencing option, however it does not follow that each instance of repeat offending will raise the penalty incrementally to the maximum penalty available. A sentence must always be proportionate to the instant offending, having regard to all relevant sentencing principles.

    Ground 4: The learned sentencing Judge erred in failing to give sufficient weight to the appellant’s early pleas of guilty

17. As the focus of oral argument at the appeal hearing was on this issue, it is convenient to deal with this ground first. While in most instances it is preferable to deal with a ground alleging failure to give sufficient weight to a relevant factor as a particular of the manifest excess ground, in this case, where the statutory maximum was imposed following pleas of guilty, it is appropriate to deal with the issue as a ground alleging specific error. Without the benefit of reasons explaining how the pleas of guilty were taken into account, there is potentially a case for specific error. While the respondent acknowledged it may have been desirable for the sentencing Judge to have indicated the extent of any discount applied for the pleas of guilty, it was submitted and is accepted here, the Judge was not in error when stating after passing sentence that the Court was not required to do so.[8]

18. Section 5(2)(j) of the Sentencing Act 1995 (NT) (‘Sentencing Act’) requires a sentencing court to take into account whether the offender pleaded guilty and, if so, the stage in the proceedings at which they did so or indicated their intention to do so. The plea and its timing is one of the relatively few mandatory factors a sentencing Court must have regard to. It is therefore ideal for the sentencing Judge to state how the plea has been taken into account.[9] As Spigelman CJ stated in R v Thomson; R v Houlton,[10] ‘A sentencing judge should explicitly state that a plea of guilt has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight’.[11]

19. A plea of guilty entitles an offender to a reduction in penalty. This principle has been recognised by the High Court in Cameron v The Queen[12] and acknowledged by the Court of Criminal Appeal on many occasions. Even absent remorse, a timely plea of guilty will attract a reduction on the basis of its utilitarian value. The primary consideration when determining where in the range a particular case should fall is the timing of the plea. This will of course vary according to the circumstances.

20. While acknowledging it is the conventional practice for the head sentence to be reduced on account of a plea of guilty, the respondent argued a plea can be acknowledged through other means. Reliance was placed on the following statement by the Court of Criminal Appeal in Kelly v The Queen:[13]

    In addition, it may be appropriate in the circumstances, rather than reduce the head sentence, to give effect to the value of the plea by other means such as a partially suspended sentence or home detention order, or by the imposition of a fine, to mention only some of the examples.

21. That is of course accepted here. The respondent conceded no reduction had been made to the head sentences, however argued the sentencing Judge gave effect to the pleas by selecting the minimum non-parole period available in the circumstances and by structuring the sentence in a way to moderate the extent of accumulation between the two counts.

22. While the non-parole period of eight months was 50 per cent of the total term of 16 months, and if successful in his application the appellant could potentially be released by the Parole Board at that time, as with any person subject to a non-parole period, it is unknown whether the application would be successful. The head sentence therefore assumes some significance as the appellant may well serve the full term. As was observed in Bugmy v The Queen,[14] the practical effect of fixing a minimum non-parole period is that thereafter the Parole Board may, but need not, grant the prisoner parole. At the end of the non-parole period the offender is eligible for parole, but he or she is no more than eligible. If no adjustment is made to the head sentence on account of the plea in the case of a sentence where a non-parole period is set, the benefit of any adjustment for the plea may or may not materialise.

23. Further, the factors to be taken into account when fixing the non-parole period are the same as those applicable to setting the head term,[15] although there may be different weight given to different factors according to the purposes behind each sentencing function.[16] Ordinarily the plea is taken into account when fixing the head sentence, unless there is an alternative way to take it into account which can be readily identified, such as moving down the hierarchy of available sentences.

24. It is not clear the sentence was set having regard to the pleas in the manner suggested by the respondent. The pleas may have influenced the setting of the non-parole period; however, the eight month non-parole period was the most likely term to be set as it is the statutory minimum, regardless of the pleas. It is unusual in itself, although justifiable here, that a non-parole period was set for traffic offending. It would be difficult to justify a higher minimum term in the circumstances. There could be no legitimate complaint from the appellant on the grounds of being required to serve a minimum of eight months imprisonment given the seriousness of the offending combined with his antecedents. The head sentences, however, require further consideration because as the statutory maximum penalty was passed, the inescapable conclusion is that no adjustment for the pleas was made.

25. As to the level of accumulation being an indication of taking into account the guilty pleas, a sentencing court is obliged in any event to make orders for concurrency when two or more technically different offences amount to a single course of conduct. Section 50 of the Sentencing Act presumes concurrency unless the Court orders otherwise. A substantial level of concurrency is required where there is considerable overlap of the aggravating features which form a part of different offences arising from the same course of conduct.[17] Apart from the appellant’s antecedents, a significant factor which aggravated the offence of drive disqualified was the fact that the appellant was intoxicated when he drove. Substantial concurrency was required.

26. Even if there were not pleas of guilty, the Local Court would have been required to ensure a substantial degree of concurrency. The fact that the appellant was already disqualified from driving when he was driving with alcohol in his blood contributed to the assessment of the gravity of the drink driving charge and vice versa, although it is accepted there is a conceptual difference between the two charges.[18] Driving with alcohol in the blood presents a danger to the driver and other road users. Driving while disqualified represents serious non-compliance with an order of the Court.[19] It is not simply the act of driving a vehicle that calls for substantial concurrency, but rather the commonality of features that aggravate each charge.

27. Counsel for the respondent drew attention to the re-sentencing after a successful appeal in the case of Dixon v Pryce.[20] There, the appellant successfully appealed sentences imposed for failing to provide a sample of breath sufficient for the completion of a breath analysis, driving while disqualified and speeding. In a period of three years preceding the most recent offending, the appellant in Dixon v Pryce had been convicted on five occasions of drive while disqualified and in the previous four years, six occasions of drink driving.[21] Commenting on the decision of the Magistrate to impose the maximum penalty for the two counts, his Honour Mildren J said, ‘…the fact that the learned Magistrate imposed the maximum penalty for each of the first two counts and then made those penalties cumulative upon each other speaks for itself.’ His Honour confirmed that he would regard the accumulation of both sentences as manifestly excessive.[22]

28. Against that background the respondent pointed out that upon re-sentencing Mildren J ordered full accumulation. It must be noted however, his Honour reduced both sentences and ordered accumulation after expressly having regard to the totality principle, having reduced both head sentences accordingly.[23] In any event, the offence of fail to supply sufficient breath does not have the same degree of overlapping elements, conduct or aggravating features as here. It cannot be concluded that the pleas were taken into account by virtue of partial concurrency.

1. The respondent argued Morris v Heath[24] illustrates that there can be no error in the sentence under appeal given that in Morris v Heath – a case with similar features – the Court imposed an aggregate sentence of 16 months imprisonment with a non-parole period of 12 months. The points argued on appeal in Morris v Heath differed significantly, save for the manifest excess ground. What is telling, which is against the respondent’s argument, is the appellant in Morris v Heath was found guilty after trial. There were no pleas of guilty.

2. Although there is authority for the proposition that there are circumstances in which a plea of guilty need not be taken into account, those circumstances are extremely rare, confined to an exceptional category of case. The exceptional case arises when the gravity of the offending conduct is of such an order that no discount is appropriate.[25] The cases considered to be exceptional in this context feature particularly grave examples of homicides, often committed by repeat serious violent offenders for which no mercy can be seriously entertained. Although dealing with a completely different type of offending, and applying the exceptional case category in a different context, in my view the authorities on point do not extend to embrace offending of this kind, although it is well acknowledged to be serious repeat offending. In any event, there was no finding in the Local Court that this was an exceptional case for which there could be no moderation on account of the pleas.

3. The appellant’s numerous previous traffic convictions placed him in a more serious situation for sentencing purposes than many other traffic offenders. However, the principle of proportionality must apply, even with repeat offenders. In Emitja v The Queen,[26] the Court of Criminal Appeal cautioned as follows:

   [C]are must be taken with the manner in which prior convictions are taken into account in the sentencing calculus. In R v McNaughton, the New South Wales Court of Criminal Appeal noted the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which [sic] circumstances do not encompass prior convictions.

4. While the history of previous offending cannot be taken into account to increase the sentence beyond what is proportionate to the objective seriousness of the offending, it can be taken into account in numerous ways which in turn will tend to result in an increased penalty for a recidivist. The criminal history may bear on the offender’s ‘moral culpability’.[27] It may deprive the offender of the leniency afforded to those of good character. It may bear negatively on rehabilitation. It may require emphasis on specific deterrence and have relevance to the protective elements of the criminal law, especially in relation to impulsive acts.[28] All of these factors are relevant to the appellant, however none of those factors could justify there being no or little regard for the pleas of guilty, such that there could be no adjustment for the pleas of guilty.

5. I would uphold this ground in part and allow the appeal in so far as it is relevant to the head sentence.

6. Although the ground of appeal is made out, under s 177(2)(f) of the Local Court (Criminal Procedure) Act 1928 (NT) the Court is to dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred.

7. In considering whether there has been a substantial miscarriage of justice, I proceed from the position that the offending does come within the ‘worst category’ as that term was recently described by the High Court in The Queen v Kilic:[29]

   What is meant by an offence falling within the “worst category” of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the “worst category”, it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.

8. In terms of the drink driving charge, it was an exceptionally high reading. The driving was accompanied by aberrant driving of a kind that led to a loss of control. The original accompanying charges that were directed to dangerous driving were withdrawn, so the appellant was not to be punished for those offences, however the driving was of a poor standard resulting in a loss of control and requiring the attendance of police and medical personnel. It is quite distinguishable from a random breath test situation. There might be seen to be some mitigation given there was little other traffic and no other persons in the car, but against that is the fact the driving was on a main highway where there is always the potential of other road users. I do not agree as put by the respondent that the facts make it clear the appellant had driven the full 45kms from Katherine. While I have some suspicions about that, it would be an error to infer and conclude beyond reasonable doubt on appeal that he had driven for 45kms. The land adjacent to the Stuart Highway provides other entry points to it. There are other reasonable scenarios that do not include driving the full distance. In any event not a great deal turns on that point. It is serious enough that he was driving on the Stuart Highway. The drive disqualified offence was committed shortly after the completion of a prison sentence for similar offending. As above, the drive disqualified offence is elevated by the offence of driving with a high-range blood alcohol level. His previous convictions require a sentence that emphasises community protection and specific deterrence, and that recognises the appellant’s high level of moral culpability.

9. The only substantial point of mitigation is the pleas and the value of timely pleas, somewhat tempered by the appellant initially not answering a Notice to Appear, requiring his arrest to be brought before the Court. However, it was explained on appeal that he received the Notice to Appear while in hospital and did not give it the attention he may have otherwise. He was not bailed to appear and did not breach bail. The respondent agrees the pleas were timely. The matter was not set down for contest.

10. In my view there should still be a reduction for the pleas on the basis the pleas facilitated the course of justice. It is accepted any hearing would not be difficult for the prosecution and would not require a great deal of court time. The cost savings would not necessarily be significant, however there would be some savings both by way of legal and witness costs, convenience to potential witnesses and court time. If traffic offenders generally started to contest charges on the basis there was no benefit in pleading guilty, there would be significant inconvenience to the Courts, witnesses and others. There is a public benefit in the recognition of guilty pleas. Once the pleas are taken into account, the appellant should not be sentenced to the maximum penalty, however there is no reason to disturb the minimum term. He will still serve a minimum eight months imprisonment before being eligible for parole. Given the reduction to the overall sentence, it would be unjust to allow the maximum term to stand. The appeal will be allowed in part and the appellant re-sentenced, adjusting the head sentence.

    The manifest excess grounds (Grounds 1, 2 & 3)

11. The principles when considering this ground are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error is shown. The presumption is that there is no error. The appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it is shown that the sentencing judge was in error, either by showing specific error appearing from what the sentencing judge said or that the sentence was so excessive that error may be inferred. It must be shown the sentence was clearly and not just arguably excessive.[30]

12. I have concluded for the reasons above that it was an error not to reduce the head sentences on account of the pleas of guilty. Although in the context of these offences the difference will be a matter of months, it is still a relatively significant portion of the overall sentence. I would uphold these grounds.

    Re-sentencing

13. For the reasons already stated, in my view both offences are properly described as being in the worst category of offending of this kind, however there will be a reduction for the pleas of guilty. If not for the pleas, the appellant would be sentenced to the maximum term of imprisonment of 12 months on each count. Given the pleas of guilty he will be convicted and sentenced to nine months on each count. Recognising the relationship between the two charges, as well as the distinctive elements of each and accepting the offending comprised one course of conduct, the sentence for count 2 will commence three months after the sentence for count 1. The total term will be 12 months imprisonment. The appellant will be eligible for parole at the same time as the non-parole period set by the Local Court, namely eight months. I do not know if it is possible, but given all of the factors, in my view a COMMIT style of parole would be appropriate to address the appellant’s obvious alcohol problems and to remind him that he is disqualified from driving for 10 years. Even though any parole period would be short, the appellant may benefit from being directed to alcohol rehabilitation. Submissions below indicated he required alcohol rehabilitation.

    Orders

    1.   The appeal is allowed in part.

    2.   The head sentences on counts 1 and 2 in the Local Court are quashed.

    3.   On count 1, the appellant is re-sentenced to imprisonment for 9 months. On count 2, the appellant is re-sentenced to imprisonment for 9 months, cumulative as to three months with the sentence imposed on count 1.

    4.   The total term of imprisonment is for 12 months.

    5.   The non-parole period is 8 months.

    6.   The sentence commences on 10 May 2019.

14. The balance of the sentence for the other counts and the disqualification period remain undisturbed.

    ----------------------------

[1]    Transcript of proceedings, Police v Samuel Andalong (Northern Territory Local Court, 21903826, 6 June 2019) at 8.

[2]    Kelly v The Queen [2000] NTCCA 3; 10 NTLR 39at 49 [27]; JKL v The Queen [2011] NTCCA 7 at 7 [23].

[3]    Transcript of proceedings, Police v Samuel Andalong (Northern Territory Local Court, 21903826, 6 June 2019) at 3.

[4]    Transcript of proceedings, Police v Samuel Andalong (Northern Territory Local Court, 21903826, 6 June 2019) at 4.

[5]    Transcript of proceedings, Police v Samuel Andalong (Northern Territory Local Court, 21903826, 6 June 2019) at 6.

[6]    Transcript of proceedings, Police v Samuel Andalong (Northern Territory Local Court, 21903826, 6 June 2019) at 7.

[7]    Janima v Edgington (Supreme Court of the Northern Territory, Mildren J, 6 September 1995) at [18]-[19]; Hill v Arnold (1976) 9 ALR 350 at 356; Jambajimba v Dredge (1985) 33 NTR 19 at 22; Van Toorenburg v Westphal [2011] NTSC 31 at 12-13 [23].

[8]    JKL v The Queen [2011] NTCCA 7 at 7 [23].

[9]    Kelly v The QueenKelly v The Queen [2000] NTCCA 3; 10 NTLR 39 at 49 [27].

[10] [2000] NSWCCA 309; 115 A Crim R 104.

[11] [2000] NSWCCA 309; 115 A Crim R 104 at 138 [160].

[12] [2002] HCA 6; 209 CLR 339; 209 CLR 339.

[13] [2000] NTCCA 3; 10 NTLR 39 at 49-50 [29].

[14] [1990] HCA 18; 169 CLR 525 at 536 (Dawson, Toohey and Gaudron JJ commenting on the Corrections Act1986 (Vic)).

[15]     Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 533 [41] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[16]     Bugmy v The Queen [1990] HCA 18; 169 CLR 525 at 531-2 (Mason CJ and McHugh J).

[17]     Pearce v The Queen (1998) 194 CLR 610 at 623 [40]-[42] (McHugh, Hayne and Callinan JJ); Andalong v O’Neil [2017] NTSC 77: 328 FLR 340 at 346 [24]-[25].

[18]     Hales v Garbe [2000] NTSC 49.

[19]     Hales v Garbe [2000] NTSC 49 at [6]; Burgoyne v Dixon [2004] NTSC 37; 150 A Crim R 1 at [27].

[20] (1996) 135 FLR 27.

[21]     Dixon v Pryce (1996) 135 FLR 27 at 28.

[22]     Dixon v Pryce (1996) 135 FLR 27 at 31.

[23]     Dixon v Pryce (1996) 135 FLR 27 at 31-32.

[24] [2017] NTSC 79; 82 MVR 304.

[25]     Phillips v The Queen [2012] VSCA 140; 37 VR 594; Cardamone v The Queen [2019] VSCA 190; Hunter v The Queen [2013] VSCA 385; 40 VR 660.

[26] [2016] NTCCA 4; 39 NTLR 159 at 172-173 [35] (Grant CJ and Kelly J) (footnotes omitted).

[27]     Veen v The Queen (No2) [1988] HCA 14; 164 CLR 465 at 477.

[28]     For the last of these factors see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 595 [44].

[29] [2016] HCA 48; 259 CLR 256 at 265-266 [18] (footnotes omitted).

[30]     Whitehurst v The Queen [2011] NTCCA 11 at [12]; Noakes v The Queen [2015] NTCCA 7 at [23]; Emitja v The Queen [2016] NTCCA 4; 39 NTLR 159 at 174-175 [39].