IN THE FELIZR.4L COURT OF .4USTRALIA )
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| A U S T F J L I A S | C 4 P I T A L | T E R R I T O R Y | l |
| l | No. | 4 C T G . 1 7 | of | 1 9 8 2 | |
| R E G I S T R Y | D I S T R I C T | 1 1 |
| GEKERAL | D I V I S I O N | l |
| 0.1’ | APPEAL | FROY | THE | SUPRE?fE | COURT | OF |
| THE | .AUS?K..ZLI.AN | C A P I T A L | T E R R I T O R Y |
| BETlCEEN: | STEPHEN ROh’,ILD | B.IRLOIV |
A p p e l l a n t
R e s p o n d e n t
O R D E R
| J U D G E S | h1Ai;ING | ORDER | : | KORTHROP, | GALLOP | and LOCKHART JJ. |
| DATE | OF | ORDER | : | 13 J U L Y 1 9 8 2 |
| WHERE | MADE | : | C a n b e r r a |
| T h e | a p p e a l | i s | d ismissed . |
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| IN THE | FEDEFL4L | COURT | 3F A t i S T R 4 L I A ) |
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| AUSTXiLIAN | C A P I T . i L | T E R R I T O R Y | 1 |
| 1 NO. | A C T | G . 1 7 | o f | 1982 | |
| R E G I S T R Y | D I S T R I C T | 1 |
| 1 |
| GENER4L DIVISION | 1 |
| ON APPEAL FRObI THE SUPRE!,iE | COURT OF |
| THE | .4UST,PALIAh | CAPITAL | I 'ERRI rrcy- |
| BETKEEN: | STEPHEN | RON.4LD | E.4RL0h1 |
Appel lant
Respondent
| CORUI: | KORTHROP, | GALLOP and LOCKHART JJ. |
| NORTHROP J, | REASONS €OR | JUDG3IENT | 1 3 J U L Y | 1 9 8 2 |
| . | I would a l s o | d l s m l s s | t h e | appeal | and | agree | wl | th |
| the r easons g lven | by | M r Ju s t l ce Lockhar t and | I | endorse |
| a l s o t h e | comments | made | by | M r J u s t l c e G a l l o p I n r e l a t l o n |
| t o | t h e | o t h e r | m a t t e r . | A c c o r d l n g l y , | t h e | o r d e r | of t h e |
| Court | 1 s t h e a p p e a l | 1s dlsmlssed and | the | judgment |
| appealed | from | 1s af f l rmed. |
| IN THE | FEDER4L | COURT | OF AUSTRALIA )
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| AUCTRALIAK | C-APITAL | TERRITORY | 1 |
| 1 | No. | ACT G.17 | o f 1 9 8 2 | |
| D I S T R I C T | R E G I S T R Y | ? |
| GENERAL | D I V I S I O N | ; |
| ON APPEAL FROM THE | SUPREPIE | COURT | @F |
| T H E | X J S T R A L I X N | C=lTAL | TERRITORY |
| BETIiEEN: | STEPHEN | RONALD | B.4RLOW |
Appellant
Respondent
| CORAM: | NORTHROP, | GALLOP and LOCKHART JJ. |
| GALLOP | J . | 13 J U L Y | 1 9 8 2 |
| I agree with the order proposed by | ?lr Justlce Lockhart |
| and his reasons for the order. | No error In sentencing has been |
| demonstrated by the prcsent appellant. | The sentences Imposed |
could, in my n e w , be regarded as too lenlent having regard to the breaches o f the recognizances committed by the appellant and hls substantial record of prlor convlctions, particularly
| for serious traffic offences. | I only kish to add a rzference |
to the last matter which I raised wlth counsel for the
| respondent, namely section | 556C(S) which deals blth the power |
o f a court, dealing kith the breach of a recognlzance, to
| estreat that recognizance. | It appears that no such order vias |
| made by Mr Justlce Kelly, sitting as | the Supreme Court of the |
| Australian Capltal Territory, because he was not asked | to make |
| any such order by the Crown. |
| \+'e | are informed by counsel for the Crown on the present |
appeal that it is not the C r o m practice to seek an order for
estreatment In circumstances such as those we have revlewd In
| the present appeal. | The sanctions which apply once a court has |
exercised lenlency by granting a recognizance to a convicted
person ought to be liability to iortfelture and estreatment of
| the recognizance as well as liability to the | ixpositio], of |
| some sentence which might | have been imposed by the COUIL |
exerclsing that leniency by way o f recognizance or suspended
| sentence. | Unlcss both sanctions are real in the sense that a |
| person released on recognizance must apprehend | the probable |
implementation o f the sanction, that is, both sanctlons, If a
| breach of the recognizance occurs, then | it defeats the purpose |
| of the original sentence by | way o f recognizance or suspended |
| sentence. | For those reasons I think that the Crown should give |
| very scrious consideration | t o seeking ordcrs for forfeiture and |
estreatment of recognizances in circumstances such as those \\hlch
| have been entertaip-b | p==-: | a~peal. I would dlsm+ss | - - . ._ |
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IN THE FEDFRaAL COURT OF .4 l iST!ULIA )
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| AUSTKqLIAS | C? ,P ITAL | TERRITORY | j |
| I | No. | ACT G . 1 7 | o f | 1 9 8 2 | |
| R E G I S T R Y | D I S T R I C T | 1 |
| -l |
| GENERAL | D I V I S I O N | j |
..
| ON APPEAL FROM THE SUPRE'.iE | COURT OF |
| THE | AUS'l 'KALIXh | C A P I T A L | T r R f t I i O R Y |
| BETKEEN: | STEPHEN | ROKALD | BARLOW |
A p p e l l a n t
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I
R e s p o n d e n t
| CORUI: | NORTHROP, | GALLOP | and LOCKHART JJ. |
| REASONS FOR JUDGFIEKT | 13 JULY 1982 |
| This is an appeal | by Stephen Ronald Barlow from |
sentences lmposed by the Supreme Cour-c of the
| Australian Capltal Terrltory on | 10 May 1982,on the |
| ground that they were xcesslve. |
On 2 0 March 1978, the appellant was convicted
| by the Court | of Petty Sesslons at Canberra | 03 one |
| count of exceedlng the prescrlbed concentration | of |
| alcohol and was Sentenced | to two months lmprlsonment |
| and his llcence was suspended | f o r 18 months. | The |
| appellant appealed to the Supreme Court of the Australian | - |
| Capltal Terrltory on the grounds that the conviction |
| was against the weight | of the evidence, that |
| the learned magistrate had erred | In law and that the penalty |
| was excessive. |
On 13 December 1978, the Supreve Court afflrmed the sentence of Imprisonment but suspended it upon
| the appellant entering lnto hls own recognizance | In |
| the sum of | $750 pursuant to section 556B(1) of the |
Crlmes Act (1900) New South Wales in Its appllcation to the hustrallan Capltal Terrltory, upon condltlcn that the appellant be of good behavlour for a period
| of two years from 13 December 1979. | The Supreme |
| Court also afflrmed the | suspension of the llcence. |
On 12 December 1978, the appellant was
| convlcted in the Supreme Court | of the hustrallan |
Capital Terrltory on one count of malicious damage and on 13 December 1978, the Supreme Court sentenced
| him to four months imprlsonment but suspended | It |
| upon the appellant entering Into | his own recognlzance |
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| in the sum of | $750, also pursuant to sectlon 556B(1), |
| upon conditlon that | he be | of good behavlour for a |
| perlod of two years from | 13 December 1978, and upon |
the further condltlon that he make immediate restltution
| by way of payment of the sum of | $269.77 to the Reglstrar |
of that Csurt for payment out to the appropriate party.
The appellant entered Into each recognizance
| on 13 December 1978. | On 2 2 September 1980. the appellant |
| was convlcted In the Court | of Petty Sessions at Canberra |
| by M r Nlcholl SM, on a charge of drlvlng a motor vehlcle | . |
| on 20 December 1979, whilst hls licence was suspended and on a charge of falllng to stop at a "STOP" slgn. O n |
| the charge | of driving whllst hls llcence was suspended |
the learned maglstrate deferred passing sentence Ln
| accordance with sectlon | 556B of the Crlmes Act and |
discharged hlm upon hls enterlng Into his own recognlzance
| in the | sum of $500 on conditlon that he be | of good |
| behavlour for a period | f two years from | 22 September 1980 |
| and that he pay a penalty In the sum of | $500 to the |
Commonwealth wlthln a period of six months from that day.
He was disquallfied from holding a llcence
untll further order of the Court. On his convlctlon
| for falling -to stop at a | "STOP" sign he | was fined |
$50 and In default to be lmprlsoned for two
| days with hard labour. | The appellant was brought |
| before the Supreme Court for breaches | of the two |
| recognlzances entered Into | by hlm on 13 December 1978. |
Before the Supreme Court the appellant admitted that
| the two offences for wiuch he was convicted | on |
| 22 September 1980 | constltuted a breach of each | of |
| the two recognizances. | The matter was conducted |
| before the Supreme Court | on that basls. |
| On | 10 May | 1 9 8 2 , t h e Supreme Court | seii tenced | the |
| a p p e l l a n t | t o | two months | lmprlsonment | In | respect of |
| each of the | two | b reaches and o rde red tha t t he sen tences |
| be | se rved | concur ren t ly . | The | a p p e l l a n t | a p p e a l s | t o |
t h l s cour t f rom those sen tences .
| The | appel lan t has been convic ted of | many | o f fences |
| s ince 1973, | most | be ihg | or b e l n g r e l a t e d t o | road | t r a f f l c |
| of fznces , | rnc ludlng | four | convlc t lons | for | exceedlng |
| t h e | p r e s c r l b e d | c o n c e n t r a t l o n | o | f | a l c o h o l . | A d d l t i o n a l |
| t o t h e c o n v i c t i o n o n | 20 | March | 1978, | a | convlc t lon on |
| 2 1 September 1977 for exceedlng the | prescrlbed speed |
| limlt | and c ross lng an unbroken | l i ne , | t hose o f f ences |
| havlng occurred on | 2 | November | 1976, | a | c o n v l c t i o n f o r |
| f a j l l n g t o s t o p a f t e r a n a c c l d e n t o n | 20 | March | 1978, |
| t ha t o f f ence hav lng occur red on | 27 | November | 1977 | and |
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| a | conv lc t lon fo r d r lv lng wh l l s t suspeneed In 1974 . |
| -On | 6 | October 1981, | the appel lan t | was | convlc ted |
| by M r C a h l l l S.M. | onza count | of |
| d r l v l n g w h l l s t | d l s q u a l l f l e d | on | 11 June | 1981. | The |
l e a r n e d s t l p e n d l a r y m a g l s t r a t e s e n t e n c e d t h e a p p e l l a n t
| ii | | t o | t w o | months mprlsonment wlth hard labour and he | |
| ., |
| was | d i s q u a l l f l e d f r o m h o l d l n g | a | l l c e n c e u n t l l | |
| f u r t h e r o r d e r | of | the | cour t . | |
| The | a p p e l l a n t a p p e a l e d f r o m t h a t c o n v l c t l o n t o |
| t h e | Supreme Court of | t h e A u s t r a l l a n C a p l t a l T e r r l t o r y |
| wh lch | d l sn l s sed | t he | appea l | on 3 March 1982. | On t h e |
| same | d a y t h e a p p e l l a n t | was | brought before | Mr | Nlchol l | S . M . |
| f o r a | breach of | the r ecogn lzance |
| e n t e r e d | l n t o | by hlm | on | 2 2 | September | 1980: | t h e b r e a c h |
| being | t h e o f f e n c e o f d r l v l n g w h l l s t d l s q u a l l f l e d |
| for w h c h h e | w a s convlc ted on | 6 | October | 1981. | The |
l ea rned s t lpend la ry mag l s t r a t e s en tenced the appe l l an t
| t o | t h r e e | months lmprlsormer,t wlth hard labour. |
| One | impor t an t a spec t | of | t h l s case | conce rns | the |
s u b s t a n t l a l d e l a y I n b r l n q l n g t h e b r e a c h e s o f
| recognJ.zances | before | the | Supreme | Court . | The | r e l e v a n t |
o f f e n c e s o f d r l v l n g w h l l s t s u s p e n d e d a n d f a l l i n g t o
| stop a t a | "STOP" | s ign occur red on | 20 | December | 1 9 7 9 , |
| The | a p p e l l a n t | w a s | convlcted on these charges on |
| 22 September 1980, yet | It was not a n t 1 1 10 May 1982 |
| t h a t h e | was | sen tenced by the | Supreme Court | f o r t h e |
| breaches | of | the | re l evan t | r ecogn lzances . | The | de lays |
| were, | t o s a y t h e | l eas t , | r e g r e t t a b l e . |
| The delay | from | November 1980 t o December 1981 |
| w a s due | t o a n o v e r s l g h t | by | t h e s o l l c l t o r | employed I n |
| t h e o f f l c e o f t h e D e p u t y | Crown | S o l i c i t o r | whose | duty |
| . |
| It | was | t o i n s t l t u t e p r o c e e d l c g s I n r e s p e c t o f b r e a c h e s |
| of | recognlzances. | The | l apse | o f | tlme | s l n c e | t h e |
| commlsslon of | t h e o f f e n c e s , g l v l n g | rlse | t o t h e |
| breaches | of | t h e r e c o g n l z a n c e s , p l a l n l y a f f e c t s p e n a l t y , |
| and | w e | t a k e | it | I n t o a c c o u n t . |
| Although the de lay | was | no t exp la lned | t o t h e |
| Supreme | C o u r t , | n e v e r t h e l e s s | h l s | Honour | t o o k | t h a t | f a c t |
| i n t o a c c o u n t a s o n e o f a m e l l o r a t l o n I n f a v o u r | oE | che |
| The | p r l n c l p l e s g o v e r n l n g a p p e a l s a g a l n s t s e n t e n c e |
| ! | are | r e f e r r e d t o I n | many | r e p o r t e d c a s e s . | I t | 1s | s u f f l c l e n t |
| 'I |
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| 1 |
| If I refer to the Judgment | of a Full Court | of thls |
| court In - | R v | (1979) 24 ALR 4 7 3 , where at page 476 |
the court sald:
"An appellant court does not Interfere
with the sentence Imposed merely
because It 1s . . - . . . . . . . or | inadequate as | to manifest such error." |
In my oplnlon, rt hes not been shown that the Supreme
| Court acted on any wrong | principle or mlsunderstood |
| or wrongly assessed any sallent feature | of the evldence. |
No ground has been shown for lnterferlng with the
| judgment appealed from. However, counsel | f o r the |
appellant has sald everything that could posslbly be
| said In the appellant's favour. | I would dlsmlss the |
| appeal. |