Baumer v The Queen

[1988] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl of 1988

B e t w e e n -

JOHN PAUL BAUMER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Baumer

AT CANBERRA ON FRIDAY, 18 NOVEMBER 1988, AT 2.31 PM

Copyright in the High Court of Australia

C2T 64/ 1 /SDL 18/11/88

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my

learned frienq, MR C.R. McDONALD, for the applicant.

(instructed by the Australian Legal

Aid Office)

MR T. I.	PAULING, QC; SolicitoF-General for the Northern
·Territory: If it.please the Court, I appear with my learned friend, MR W.J. KARCZEWSKI, for the respondent. (instructed by the Solicitor for the Northern Territory)
MASON CJ:	Yes, Mr Abbott?

MR ABBOTT: If the Court pleases, this application is

two-fold: firstly, for an application for an

extension of time in which to apply for special

leave. That application is not opposed by the

respondent and I advance, in support of that

application, the affidavit of Mr Baumer filed

in these proceedings.

MASON CJ:  Yes, we have read .the affidavits in support

of that application.

MR ABBOTT:	In my submission, Mr Baumer has, at no stage - - -
MASON CJ:	You need not worry about extension of time,

Mr Abbott.

MR ABBOTT:  If the Court pleases. The :second application is

an application for special leave and, in our

submission, it involves a question of law which

is of public importance and of general application,

namely, what should be the approach of a sentencing

judge to the procedures set out in section 154

of the Code and, in particular, :subsection (4).

. Se·ction 154. .of .the. Code d:eals with all

dangerous acts and omissions. It is a section

which is in a Code which came into operation

at the beginning of 1984 and has been amended

once by Act No 9 of 1984. I refer the Court	to section 154(4) and, as the outline of our
submission indicates, this is a section of wide
application which deals with a variety of dangerous
acts and omissions. I have said, in our application,
that a charge under this section is invariably
included as an alternative charge in indictments charging murder and/or manslaughter; In fact,
that is incorrect. By operation of section 318
of the Code, it is always an alternative charge
that is open to the jury to return a verdict
upon.

It is also the section under which charges

are laid in cases of alleged dangerous driving

causing death or, in the case of this applicant,

grievous harm to a member of the community.

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Baumer

?he question that we seek to argue in

this application relates to the wording of

section 154(4) and, in essence, is this: does

the phrase "liable to further imprisonment for

four years" mean that after considering the appropriate

penalty under subsections (1), (2) or (3), do

you then consider as a separate exercise how

much further imprisonment an accused should receive

due to the fact that he was under the influence

of an intoxicating .substance at the time of

committing the offence.

DAWSON J:  What is the origin of section 154, do you know,

Mr Abbott?

MR ABBOTT:  We have endeavoured to find the or1g1n of

section 154. It apparently has some basis in

the Queensland Code but is an unique and unusual

section that has no exact precursor, to our knowledge.

I am informed that it was drafted by Mr Sturgess,

in Queensland.

This subsection, and indeed the whole

section, was characterized by the former

Chief Justice O'Leary as a deliberate and radical

departure by the legislature from previous law.

So the question is: is it such a radical and

deliberate departure or is the phrase nothing

more than a direction to a sentencing judge

when calculating the statutory maximum to add on

four years if subsection (4) is applicable?

(Continued on page 4)

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DEANE J: It avoids quite a few combinations and permutations

which would otherwise be necessary.

MR ABBOTT:  Yes, that is so. But, as I will show the Court,

it was taken as , as it were, an imprimatur to

embark upon a separate exercise rather than merely

to consider the arithmetical statutory maximum at the

beginning and then work out a sentence framed

against the uackground of that statutory maximum.

DEANE J: Their Honours do not seem to have directed attention

to the case where intoxication would be a mitigating

factor such as where somebody is, I think the language

is "slipped a Mickey Finn", where on any approach

it would be a greatly mitigating factor.

MR ABBOTT:  In those circumstances it would be a mitigating

factor, yes. But otherwise it is described as

a 'circumstance of aggravation" under this particular

Code. "Circumstance of aggravation" is defined

in section 1 of the Code, in the definitions section,

it means:

any circumstance by reason of which an offender

is liable to a greater punishment than that

to which he would be liable if the offence
were committed without the existence of that

circumstance.

It is a circumstance which must be specially charged

in the indictment by virtue of section 305(4) of the Code. In our submission, the matter, or the question as framed, is of such importance as to

justify the criteria laid down by this Court in

LOWE in that this question involves a question

of law and principle of general importance - - -

MASON CJ:  Well you seem to have the advantage in this case

of support from the respondent - - -

MR ABBOTT:  Yes, I do, Your Honour.

MASON CJ:  - - - who joins with you in saying that the majority

were wrong, who consents expressly to the extension

of time and, by implication at least, favours the

grant of special leave to appeal.

MR ABBOTT:	Yes.
DEANE J:	Can you not get some retrospective legislation?
MR ABBOTT:	I think that question, Your Honour, would more

usefully be directed towards my friend the learned

Solicitor.

MASON CJ:  Yes, could you not save us from writing a

judgment, Mr Pauling?

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MR ABBOTT: If the Court pleases, I will therefore proceed,

if I may, directly to what happened in the course

of the appeal rather than recite, or extend, the

matters that are in our outline as to why we say

this case is worthy of special leave.

The matter arose in this way, that the

applicant was sentenced by the person who is now

the present Chief Justice of the Northern Territory,

then Justice Ashe, and the sentencing remarks can

be seen at page 37 of the application book.	And
what happened was that His Honour, at page 37,

adopted the approach to section 154(4) for which

we contend. He says, at point 5 of page 37:

The applicable section is section 154 of the

Code,and by virtue of section 154(2) and

section 154(4), the maximum penalty where

the accused has caused grievous harm, and

at the time of doing the act was under the

influence of an intoxicating substance, is

11 years.

(Continued on page 6)

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Baumer

MR ABroIT (continuing):  In other words, he has approached

the operation of this section in a way for which

we contend. It was the Court of Criminal Appeal

which went off on what could be described as an

inquiry of their own without any argument being
addressed to them on this point and without

raising the matter to counsel, as a result of which

this two-step approach features in their judgments.

So, to briefly refer the Court to the judgment of the sentencing remarks of Justice Asche, we - - -

MASON CJ: Just before you do that, Mr Abbott, what was the

preceding approach to the application of section 154(4)

of the - - -

MR ABBOTT:  That described by Justice Asche, and that has always

been, on our understanding, the approach. Could I,

perhaps, at this stage, refer the Court to two cases

which we have had copied and made available, namely,

the sentencing remarks of Justice Rice in Alice Springs

which give a good idea, I think, of how

Northern Territory judges now view the application

of section 154(4) since the decision in BAUMER's case.

Now, those cases are the case of NAMATJIRA,

a	copy of the sentencing remarks should be before
the Court.	At page 45 - the copy starts at page 30
and proceeds from 30 to 36.	At page 35, after dealing

with the facts, Justice Rice, at the bottom of page 35

says:

Although other sentencing options are in

appropriate cases open under the Criminal Law

(CONDITIONAL LEASE OF OFFENDERS) ACT so far

as general deterrence is concerned, an increase
in the head sentence of imprisonment is the

time honoured approach. Whether this is

effective or not is debatable, but while
subsection 4 of section 154.~emains in the

CRIMINAL CODE the plain duty of the·court is

to give effect to it by positive application

of its provisions.	The sentence of the court is
that you be sentenced to a term of imprisonment

for 2 years and 4 months for the basic offence
and to a further term of imprisonment of 12
calendar months because at the time of doing
the dangerous act you were under the influence

of intoxicating liquor.

And the same goes for the other case, that of SWAN,

and I will not read that out but the same approach

takms:at the page numbered 27 in the case of SWAN.

DEANE J:  On that approach, in calculating the sentence for the

basic offence, do you work on the basis that he was

sober or do you make an allowance for the intoxication?

MR ABBOTT: Well, according to what has fallen from the judges

in the Supreme Court of the Northern Territory, you

are meant to consider section 154(1), (2) and (3)

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Baumer

without taking into account in any way the element

of intoxication. And, as one judge, mainly the

dissenting judge in the Court of Criminal Appeal

in BAUMER's case has described that, it gives a

substantial element, perhaps, of double-dipping

occasionally and certainly it would present a judge

with an almost impossible task of separating out

by virtue of having to adopt this tv;o-step process,
the alcohol component from the activity that led to

the commission of the dangerous act or omission.

(Continued on page 8)

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Baumer

DEANE J:  Probably not so much in driving offences but it would

be in other offences?

MR ABBOTT:  Yes, well those two that I have given the Court

examples of, namely NAMATJIRA andSWAN are not driving

offences,they are dangerous act cases which do not

involve driving and therefore are of some greater

complication. Could I also refer the Court, on this

aspect, to the decision in IRELAND,(1987)49 NTR 10,

it is a decision of the Supreme Court of the

Northern Territory sitting as a 6ourt of Criminal Appeal. It follows in point of time the decision

in BAUMER and there unmistakeably one sees how the

Northern Territory judiciary regard the decision

in BAUMER.	Page 16, Justice Nader who presided at
line 45 says:

The fact that the decision in BAUMER .....

has now made it clear that a sentencing judge
should consider a further sentence of

imprisonment under section 154(4) ought not

now to be applied to the disadvantage of the

respondent. The arguments which found favour

with the majority in that case were not put

by the Crown to the sentencing judge here.	Now
to apply BAUMER to this case would have the
effect of putting the respondent in jeopardy
once again.

Further at page 20, line 27 or so, the Crown prosecutor did not favour His Honour with the submissions that

were put to the Court of Criminal Appeal in BAUMER,

even in substance:

It was in that appeal that the duty to add

a specific further term of imprisonment was

first judicially defined.

To like effect, Justice Maurice at page 25, from line 45 onwards, His Honour said this:

Indeed, while BAUMER stands, the court

is required to perform the hopelessly artificial

exercise of assessing culpability independently

of intoxication, and then adding up to four years

because of the presence of alcohol.

This is at page 25 at the bottom -

On this approach -

said His Honour -

there must be a significant element of

doubling up in determining the degree of

criminality. Such a result is not dictated

by the use of the word "further" in section 154(4);

i~

C2T67/l/SR	18/11/88
Baumer

that can be readily explained because
the four years of imprisonment is to be

added to one or other of the periods

they provide the maximum penalty

specified in the first three sub-sections. provisions,

where grievous harm (subsection (2)) or

death (subsection (3)) result. Still,

the majority decision in BAUMER requires

the application of an additional penalty,

where alcohol is a feature, to be carried

out as a separate exercise.

So the Court can see that what has happened is that

since the decision in BAUMER the previous method of

approach to section 154 has been abandoned and the

courts have treated, in the Northern Territory, the

decision in BAUMER as establishing a new and

different approach and method in sentencing offenders

under section 154. When one adds to that the

fact that Mr Baumer received a penalty double the

then current tariff one can see that a new day has

dawned if this decision is to be followed in the

future in the Northern Territory of Australia.

(Continued on page 10)

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Baumer

MR ABBOTT (continuing): Justice Asche, if I could take the

Court back to what he said in the course of his sentencing remarks at page 37 and following did

refer - and we say fell into error in his sentencing

remarks in referring to, in the use that he made,

of the previous convictions of the applicant.

From page 37 to page 40 of the application book

he set out the circumstances that surround	the
applicant's offending. In the last paragraph
on page 40 he said:

All that in itself constitutes a serious

charge, as envisioned by the section 154 of the

code. What increases the seriousness of this

particular offence is the literally appalling

record of the accused so far as prior offences

in relation to driving are concerned.

Then he details the previous convictions of the

applicant and we say that he fell into error in

saying that they increased the seriousness of

the particular offence. He goes on at page 41

to deal with the cases to which he had been

referred which, in our submission, spelt out

the tariff or set the range of penalties that

by rule of thumb were available to him as a
backdrop against which to sentence this offender.

I will not go through them all but there were some six cases, I think, referred to. The names

that appear there are COLLISHP1W, GOODWIN, LEWIS,

NARJIC and WATERS. They may be conveniently

found in sunnnary form rather than by reading His Honour's summary of them, as part of the addendum to the decision in IRELAND's case

in the Australian Law Reports.

If the Court refers to IRELAND's case again,

this time at page 30, although IRELAND's case

was after BAUMER, there is a useful schedule

at the back of the report at page 30 which sets

out a schedule of sentences under section 154
with the blood alcohol ,	ranging from the

maximum of eight years in BAUMER's case down to
JONES; 12 months, a non-parole period of six
months. The cases .that were referred to by
His Honour and which he mentioned in his remarks
on sentence are number 3, NARJIC, number 4, WATERS,

number 5, GOODWIN, number 7, COLLISHAW and

number 8, LEWIS. His Honour also referred to

a matter of JONES but it does not appear that it

was the same JONES that His Honour referred to.
The JONES referred to by His Honour was the

same JONES as appears as number 11 in this list.

It appears to be a different JONES so I put that

aside.	In any event, after referring to the
cases, which in our	view establish the tariff,

His Honour said at page 43 - and, in effect, abandoned the tariff. He said:

C2T68/l/MB 10 18/11/88

Baumer (Continued on page l0A)

Now, a mere recital of these cases makes

it plain.to me that while in some of them

the more serious aspect of death resulted,

in none of them did the accused have anything

like the record of prior offences related

to driving that this accused has. It seems

plain to me that not only must the accused

understand that this conduct cannot be

tolerated, but that members of the public

must be protected from a person who behaves

in this fashion.

In our submission, his remarks,read as a whole,

really amount to no more than the imposition of

a very severe sentence akin to preventative

detention of the sort that was connnented on by

this Court in VEEN (No 2).

(Continued on page 11)

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Baumer

MR ABBOTT (continuing):  On that aspect he continued to

say, at page 43:

It is quite plain that the accused is

a very serious threat indeed to anybody

using the roadway when the accused is

driving. That must be made plain - it
must be made plain not only to the

accused but to others who commit similar

offences, that these offences are

regarded by society with the utmost

seriousness; that society must be protected

by people who commit offences of this nature -

presumably he meant "from" -

and thgt people with the. propensity of
the accused to continue to commit these
offences must be kept away for the protection

of society.

He then dealt with some personal circumstances

and he said, at page 45, in the second paragraph:

There is no doubt, of course, that he

must be given a gaol sentence. The only

question is the length of that sentence.

I am quite satisfied that in the

circumstance of this case, and the record

of the accused, the sentence called for

is greater than any of the sentences imposed

in the cases to which I have been referred.

We read at page 46 that he sentenced the applicant
to eight years imprisonment, a non-parole period
of four years and disqualified him from holding

or obtaining a driver's licence for 20 years.

MASON CJ: What are you asking us to do if we were to

grant special leave and allow the appeal?

MR ABBOTT: Either to remit it back for reconsideration,

that would be our second choice, with respect.

But we would ask this Court to substitute the penalty

that Justice Maurice refers to in his judgment.

MASON CJ: That is three years imprisonment?

MR ABBOTT:	Yes.
MASON CJ:	What about the disqualification of the licence? Is there any appeal against that?
MR ABBOTT:	Yes, sir, there is.
MASON CJ:	And again you would ask for five instead of

C2T69/l/JM 11 18/11/88

Baumer	(Continued On page llA)
MR ABBOTT:	We would ask for five instead of 20.

MASON CJ: Yes.

MR ABBOTT:  The notice of appeal to the Court of Criminal

Appeal is at pages 48 and 49. The Court will

see that the grounds of appeal were primarily
manifestly excessive and that the learned trial
judge erred in law in that he sentenced the

applicant on his previous convictions, or

in the alternative, that he gave too much weight

to the applicant's previous convictions. Thirdly,
that the period of disqualification was manifestly

excessive.

The majority of the Court of Criminal Appeal,

in our submission, never really dealt with the

complaint contained in ground B, that is that

there was an error of law in the sentencing approach
in so far as it dwelt upon the previous convictions
of the applicant. Moreover, as is apparent from
the grounds of appeal, there was no complaint made

of the approach by the learned sentencing judge

in his interpretation of section 154 in so far

as the interaction of subsection (4) and the other

subsections, because, as I have said, in our
submission, His Honour the learned sentencing judge

proceeded to approach subsection (4) and its

interaction with the other subsections on the

same basis as had been done since the introduction

of this section in 1984.

The Court of Criminal Appeal, by a majority,

the former Chief Justice O'Leary and Acting
Justice Muirhead comprising the majority, dismissed

the appeal. Justice Maurice would have allowed

the appeal. The two-step approach to which I have

referred can be seen in the judgment of

Justice O'Leary.	He says, at page 54, the first
paragraph:

The principal question raised by the appeal is the construction to be given to

sub-section (4) of s.154 of the Code, and,

in particular, how that sub-section is to

be taken into account in sentencing a person

for an offence under the section.

(Continued on page 12)

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Baumer

MR ABBOTT (continuing): That is not my understanding

of what the principal question was that was raised

by the appeal but that is what His Honour discerned

as being the principal question. He repeats much

the same - at page 55 of the appeal book, just

under half-way down where, after setting out

subsection (4), he says:

The question before us, therefore, is how

is that sub-section to be taken into account
in sentencing a person for an offence under
the section, and, in particular whether it

"merely reflects universally established

judicial practice" in sentencing for the kinds

of offences covered by the section, as

Maurice J considers it does, or whether it

involves a radical departure from previous

sentencing practice, as Muirhead AJ suggests.

The reference to the words of Justice Maurice 1s

a reference to page 76 of the appeal book. I cannot

detect that Acting Justice Muirhead ever said that

it involved a radical departure from previous

sentencing practice and it is true that

Justice O'Leary merely comments that he suggests

that to be so and it may be that he is picking

up in Justice Muirhead's judgment, pages 88 and

90, where Justice Muirhead, at page 88, says

just under half-way down:

The section under which the appellant is charged is unusual, but in its form it

illustrates, one must assume, the objectives

of the legislature. It is not a section

devoted only to the driving of vehicles -

it embraces a wide range of offences.

And also, at page 90, he says, about 10 lines from

the top:

the policy of the legislature cannot be

present case, his Honour in exercising his ignored by the sentencing court. So, in the

sentencing discretion under sub-sections (1)

and (2) was required to impose a sentence

within a maximum range of 7 years. The degree

of intoxication then fell for consideration

and his Honour had the task of assessing the
influence of this factor on sentence within

the limits imposed by sub-section (4).

I turn back now to page 55, Justice O'Leary's judgment, His Honour continued and said:

In my opinion, sub-section (4) of s. 154

represents a deliberate and radical departure

by the legislature from the previous legislation

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Baumer

dealing with offences of the kind covered

by the section, including, as I have said,

driving offences. With the greatest respect,

I cannot agree with Maurice J thats. 154(4)

"merely reflects universally established	judicial practice", or that 11 (f)or the most
part, it reflects the existing law and ...
ought to be seen in this light, not as a
prescription for some radical departure from
past sentencing practice." Whatever weight
may have been given under the previous
legislation to the fact that an offender was
under the influence of an intoxicating substance at the time of the offence, and whatever weight
may be given to that fact under other
legislation elsewhere, in my opinion, the
clear legislative intention as expressed,
in s. 154(4) of the Code is that, not only
must that fact be taken into account as an
aggravating circumstance of the offence, but
as an aggravating circumstance rendering the
offender liable to a specific further
substantial penalty in addition to any other penalty to which he is liable under the section.

(Continuing on page 14)

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Baumer

MR ABBOTT (continuing)

In my opinion, therefore, the fact that an

offender was under the influence of an

intoxicating substance at the time of

the offence is a factor to which a sentencing

authority must give separate and serious
consideration when fixing the appropriate

penalty for the offence, and he must do so

bearing in mind the further specific penalty

provided by the sub-section, a penalty, it

is to be noted, almost as severe as that

provided for in sub-section (1).

So the two step approach which Justice O'Leary

advocates is also advocated by Acting Justice Muirhead

and that can be seen at page 89 of the appeal book

where,after setting out the section on page 88

and the top of page 89 and dealing with the increases

that follow by the application of the various

subsections, His Honour came to the conclusion:

Thus in the present case the maximum penalty prescribed by the Code was 11 years.

I am of the opinion, that, in the course

of sentencing, the court must consider sub-

section (4) as a separate exercise. The

contri~ution of the intoxication to the act

or cml,gsion, the degree of intoxication are

important considerations.

And then he goes on to the situation where:

intoxication may be a circumstance of little

moment -

or of great moment. That then goes over to page

90 where he finishes on this aspect by the

sentence that I have previously read:

But where it looms large in causation and

in assessment of the degree of danger the

policy of the legislature cannot be ignored

by the sentencing court.

In other words, His Honour discerns the policy

of the legislature as a warrant to embark upon

a separate exercise under subsection (4), namely

a consideration, if a man is intoxicated of how much

out of four years you give him over and above what

you have already given him for offending under

subsection (1) and/or subsection (2) and/or

subsection (3).

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Baumer

DEANE J: That does not really seem to accord with what

the Chief Justice said, does it? He does not

suggest this separate two stage process.

MR ABBOTT:  Not so much a two stage process. He merely

talks about a separate consideration.

DEANE J:	Would you object to the proposition that if the legislature has increased the maximum penalty by
four years in the case of intoxication that is
something to which any sentencing judge should
pay particular attention?
MR ABBOTT:	No.

DEANE J: Well, is not that really almost all that the

Chief Justice says on page 56?

MR ABBOTT:  At page 56 - it is possible that on one reading

Your Honour's interpretation is correct - - -

DEANE J:  Once you appreciate, as I had not appreciated,

that it is an aggravating circumstance within a

statutory meaning, what His Honour said does not

seem to me to accord at all with what

Justice Muirhead said.

MR ABBOTT:  No. I agree that the word "further" is used

on page 56 and our submission is that if one reads

the passage that talks about it being a further

substantial penalty and in conjunction with the

passage that I read out about having to give
separate and serious consideration, then the two,

in our submission, irresistably lead to the conclusion

that he, in fact, endorses by implication the approach

of Acting Justice Muirhead. It is that passage: but as an aggravating circumstance rendering

the offender liable to a specific further

substantial penalty in addition to any other

penalty to which he is liable under the

section. (Continued on page 16)

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Baumer

MR·ABBOIT (continuing): It would seem to be indicating that you

work out what penalty an offender is liable--to under the

other subsections and then you work out what further

substantial penalty you give him by virtue of

subsection (4). When one combines that with the words

that follow:

In my opinion, the fact that an offender

was under the influence of an intoxicating

substance at the time of the offence is a

factor to which a sentencing authority must

give separate and serious consideration when

fixing the appropriate penalty -

we say the natural inference is that he is agreeing

with the approach of Acting Justice Muirhead which

is definitely a two-step approach, an approach which,

as my learned junior reminds me, the Chief Justice

consistently referred to as a "radical and deliberate

departure". We say what is radical about it is in

fact the two steps rather than, as Your Honour

Justice Deane has referred to, merely looking at

intoxication when the statute provides for up to
four years additional penalty if intoxication is present.

The new sentencing practice, as I have endeavoured to show that has evolved from what we say Acting

Justice Muirhead has said and which has evolved from

the way in which judges in the Northern Territory have

interpreted what Acting Justice Muirhead has said, is in

line with the two cases of NAM.fil'JIRA and SWAN to which
I have already referred the Court.

In our submission, the word "further" in section 154(4), consisting as it does as an adjective

to the noun "imprisonment" merely is an instruction
to a sentencing judge to, first of all work out the

statutory maximum as the yardstick against which

the sentence should be carried out, not as an
instruction to the sentencing judge to first compose a

penalty under subsections (1), (2) and (3) and then

embark upon the further exercise of imposing a further

penalty on top of a penalty worked out under

subsections (1), (2) and (3). It makes good sense, in

our submission, to agree that whilst, certainly,

subsection (4) renders an accused person liable to a

further imprisonment of up to four years, all that means

is that you commence your sentencing task as a judge

against a theoretical statutory maximum of 9 years,
in the case of a combination of subsection (1) and
subsection (4), 11 years in the case of subsection (1),

(2) and (4), and 14 years in the case of the

combination of subsection (1), (3) and (4), and then

proceed to sentence in the normal way.

For example, the passage in IRELAND's case to

which I have already referred the Court is in point.

Justice Maurice said at page 25 in IRELAND's case:

C2T72/l/SR	16
Baumer

Such a result -

that is the two step approach -

is not dictated by the use of the word "further"

in section 154(4); that can be readily explained

because the four years of imprisonment is to
be added to one or other of the periods specified

in the first three sub-sections.

(Continued on page 18)

C2T72/2/SR	17	18/11/88
Baumer

MR ABBOTT·(continuing):

Sub-sections (2) and (3) are not add~on provisions, they pro~ide the maximum penalty

where grievous harm (suh-s (2)) or death

(sub-s(3)) result.

So Justice Maurice, in the course of his judgment in the Court of Criminal Appeal, recognized this as well and if the Court looks at page 76 of

the application book, His Honour said:

So far as alcohol is concerned, at least in

culpable driving cases, there is nothing novel
about treating it as an aggravating circUIIlStance
calling for the imposition of a higher penalty

than otherwise. In this regard, s. 154(4) merely

reflects universally established judicial practice.

The subsection qoes no more than make alcohol an aggravating feature .. Care must be taken in driving cases -

and I add in other cases -

to ensure that it is not brought into account twice:

once in assessing culpability in accordance

with past judicial practice when dealing

with this type of offence, and again when

considering subsection (4). It must be

remembered the .Act is ,a code:  it sets

out to state this area of the law in its

entirety. For the most part, it reflects

the existing law ands. 154(4) ought to

be seen in this light, not as a prescription

for some radical departure from past sentencing

practice.

So, he recognizes the difficulty that there may be in separating out culpability under

subsections (1), (2) and (3) and then engaging in the exercise that has been perceived-by the

judiciary in the Northern Territory as being

the exercise that they are obliged to make if

subsection (4) applies.

DAWSON J: There may well be difficulty- but I am not

sure that I appreciate it fully.	What is the
difficulty?

MR ABBOTT:  The difficulty, of course, is assessing, in

a driving case, just what the driving was in

terms of criminality without taking into account

what is usually the central feature of it. The

man would not have driven but for the alcohol.

DAWSON J:  Why can you not assess that on the basis the

driver was stone cold sober and then look to

the question of intoxication?

C2T73/l/SDL	18	18/11/88
Baumer

MR ABBOTT:  Of course, that would be a - - -

DAWSON J: There is no difficulty in that, is there?

MR ABBOTT:  I could perceive some difficulty in trying to

assess what would otherwise be conduct that would

never be engaged in by a stone cold sober driver

and would only be engaged in by a very drunk

driver because the usual combination, of course,

is gross intoxication and gross departures from

the normal driver standards. To be obliged to

separate them out, as is .the consequence of

BAUMER's case, may present some difficulty.

DAWSON J:  Of course, you get into that problem: if he

was stone cold sober doing these things he would

be much more blameworthy.

MR ABBOTT:  Yes. I suppose in one sense, yes, that is

so.

DAWSON J:	I mean, to drive deliberately down the wrong way down a one-way road is explicable by
intoxication which -
MR ABBOTT:	Would end up with the result that if one was

obliged to consider him as a stone-cold sober

driver, that you give him more than you would have

otherwise under subsections (1), (2) and (3).

I really rely upon the words of Justice Maurice

that there must be a significant element of doubling

up in determining his degree of criminality, I

would say, in spite of the best attempts of judges
to endeavour to separate out and embark upon the

tasks that they have to in consequence of a decision

in BAUMER's case.	In our submission, even
if it is - - -

DAWSON J: Would you be entitled then to take intoxication

as a mitigating circumstance in affecting the -

in the first step and then as an aggravating

circumstance when - - -?

MR ABBOTT:  I would say not, Your Honour. If the task that

a sentencing judge is set is to separate out the

alcohol component, the intoxication component, then

you could not bring it in as a mitigating factor,

it would have to be extracted completely from the

exercise a judge undergoes in assessing culpability

under subsections (1), (2) and (3).

(Continued on page 20)

C2T73/2/PLC	19	18/11/88
Baumer

MR ABBOTT (continuing):  I make the point that even if

section 154 is a new radical departure from

established j~dicial sentencing practices, that

by itself would still be no reason to adopt,

necessarily, the separate consideration approach of

the majority. In our submission, as I have said,

the word "further" can be given work to do, the

subsection is merely a direction that four years

is to be added to one or other of the periods

specified in the first three subsections in

arriving at the theoretical maximum to be used

as the starting point for the learned sentencing

judge's consideration.

Could I turn now to what His Honour the sentencing judge said and what the Court of Appeal

said about the tariff. I have already referred

the Court to the cases that were referred to

J u s t i c e Asche as the s en t enc i n g j u d g e . In our

submission the sentence that he composed is well

outside the prevailing tariff limits and

Justice Muirhead, in dealing with that aspect, rejected consideration of the tariff for this

offence. He considered it but at page 92 he said

this - five lines from the bottom:

Similarly, discussions about 'tariffs'

generally proves unrewarding. In offences

such as driving with prohibited degrees of

alcohol in the blood, illegal use of motor

vehicle, offensive conduct, tariffs

inevitably emerge and it is in the interests

of justice that they should not abruptly be

elevated without cogent reasons. But offences

against section 154 of the Code embrace such a multitude of circumstances and culpability

that a tariff approach proves unrewarding.

Previous sentences should, I think, be borne

in mind and in the interests of consistency

it is relevant that the court should be so

informed. His Honour was so informed and

his remarks on sentence show that they

received his detailed consideration.

When one reads that in conjunction with what he

said at pages 87 and over to 88, it will be seen

that one of the questions that the majority had

to address was how to justify this penalty of

eight years when it was so far above any other

penalty that had been given in the Northern

Territory courts. At page 87 His Honour

Acting Justice Muirhead, said:

The main thrust of the appellant's

submission is that the sentence (including

the licence suspension) was so heavy that

in itself indicates error.

C2T74/l/ND	20	18/11/88
Baumer

My understanding is that the main thrust was not only that but also the undue emphasis on previous

convictions. · But putting that aside, at the bottom

of the page, His Honour Acting Justice Muirhead

said:

The sentence imposed by his Honour was

substantially higher than previous sentences

o f th e S up rem e Co u r t relating to persons charged tmder

the same section of the Code, persons who

whilst under the influence have in the driving

of vehicles caused death or serious injury
to others. In fact, it is probably accurate

to say that the sentence of 8 years

imprisonment is approximately double the range

or 'tariff' previously imposed under this

relatively contemporary legislation.

Previous sentences were cited to us, as indeed they were to his Honour, but beyond illustrating the severity of this sentence

there is no purpose to be served in analysing

them as the facts of the offences and

particularly the antecedents of the offenders

are inevitably different.

In our submission, His Honour the Chief Justice

did not deal with this at all but made no mention
in any way of the tariff. In our submission

Acting Justice Muirhead erred in rejecting

consideration of the tariff. He conceded that

tariffs emerge, as he said at page 92, and he said

that they emerge in cases of offences such as

driving with - exceeding .08 - whatever the

prescribed alcohol may be:

the illegal use of motor vehicle, offensive

conduct -

they emerge in those situations and he seems to

be conceding that a tariff emerged in this case

and he says that:

it is in the interests of justice that they

should not abruptly be elevated without
cogent reasons.

(Continuing on page 22)

C2T74/2/ND	21	18/11/88
Baumer

MR ABBOTT (continuing):  The cogent reasons, of course, that

His Honour Acting Justice Muirhead gives for elevating

this penalty so far above the existing tariff is this

new two step approach. So it is facet of his approach

which we say is in correct which has, in turn,

resulted in the abandonment of a penalty or a range of

penalties which he fits in in any way with the

existing tariffs that obtain up until the time of

the decision of the Court of Criminal Appeal in

BAUMER.

WILSON J:	The inclusion of section 154(4) would warrant a distinct
moving-up of the tariff, would it not?
MR ABBOTT:	It would, Your Honour, but the penalties that were

put to him were penalties of cases in which -

section 154(4) applied.

WILSON J:	And which had been ignored, apparently, because they
were consistent with the tariff that formerly applied
without 154(4), is that - - -

MR ABBOTT:  That is not entirely my understanding. I have no

information as to what happened when the Code came in
in terms of what the penalties were under the old
culpable driving section that formerly obtained in

the CRIMINAL LAW CONSOLIDATION ACT as it applied to

N~rthern Territory and the penalties that were imposed

under section 154(4) when the Code came in, but my

understanding was that there was some increase and

the penalties that were put to the Full Court and to

the sentencing judge in those cases that I have

referred to and which can be seen in the schedule

to IRELAND'S case generally show what the prevailing

tariff was and has been from the time of the

introduction of the Code to BAUMER's case in the

Court of Criminal Appeal.

WILSON J:: But the three years that Justice Maurice would have

adopted would seem to be on the low side, on any view,

would it not?	I mean, it was a bad offence of
cuJpable driving causing death - serious injury causing

death - sorry, culpable driving causing serious

injury - and there was no call for leniency having

regard to the record.

MR ABBOTT:  Certainly no call for leniency having regard to the

record. However, His Honour did compare it to the

case of DURILLA, which is to be found in Justice Maurice's

judgment at page 71 of the appeal book, and I think

His Honour Justice Maurice derived his proposed penalty

of three years without any non-parole period, that

is three years actual imprisonment, with a five- :,ear

licence disqualification, principally from a
consideration of the tariff but also of a consideration
of the case of DURILLA at page 71, because His Honour

said, apropos of DURILlA's case:

C2T75/l/Vrl	22	rB. A.B ·c?T, QC	18.-11:'88
Bau-,er

The real point of difference between the appellant and the long line of cases before him, including RV DURILLA, is his driving

record. And, if this is so, either the

sentencing judge has taken the view quite

independently of the appellant's character

and antecedents that this was a case calling

for 8 years imprisonment, or he has made the

error of escalating the punishment on account

of the appellant's prior criminal record.

In other words, the appellant has been punished

for his past.

MASON CJ:	But if you regard three years as the appropriate
penalty, it is impossible to imagine what the magnitude of the offence would be that would justify the
maximum penalty.

MR ABBOTT: Well, His Honour Justice Maurice refers· , at

page 73, to that situation, where he says, two-thirds

of the way down:

What, now that the CRIMINAL CODE clearly

requires a higher penalty where death ensues
(s. 154(3)), would have been appropriate penalty

in this case if, instead of making a quite good

recovery,: the young victim had succumbed to his

initially grave injuries? Nine, perhaps ten

years according to the scale applied in this
instance. If the appellant had been a professional

driver in charge of a bus and several people

had been killed and many others injured, even

more. Such is the precedent this sentence will

set if we affirm it - a sentence of an order

apparently never before heard of in this or

any comparable jurisdiction.

(Continued on page 24)

C2T75/2/VH	23	18/11/88
Baumer

MR ABBOTT (continuing):  Now, the Court may or may not agree

with that as an observation but my point is that -

our submission is that the :tariff was clearly put

before the sentencing judge and before the Full Court.

The majority in the Court of Criminal Appeal

were able to, as it were, put the tariff situation

to one side by saying, "Well, we have now formulated

a new approach", which new approach, of course,

does not really have any relationship to the

tariff by defintion. We are now starting out in

a new line, a two step approach, and if you do that
you assess the penalty under subsections (1), (2)
and (3) and you then look at subsection (4) and

you work out, out of a maximum of four years, how

much of four years you give for the intoxication

component and you add that to the penalty that

you have formulated under the combination of the

appropriate subsections (1), (2) and (3).

DEANE J:  It sounds as if you should change tack and if you

succeed on your legal point ask us to send it back

to the Full Court for sentence.

MR ABBOTT:  I would hate to have to come here again, on

this case in any event, Your Honour.

MASON CJ:  What you heard would'discourage you,

I think Justice Deane was suggesting.

MR ABBOTT:	Well, we would submit that Justice Maurice's assessment, by and large, formulates a penalty
without the benefit or detriment of the two step
approach which is consistent with the tariff
and which is consonant with authority and which is a substantial and serious penalty. Three years
actual gaol, no non-parole period, plus a five year licence disqualification, is a substantial
and real penalty.
MASON CJ:	Mr Abbott, I think that I ought to say to you

that I think you should take it that the likelihood

is that we would send the matter back in the
event that the appeal is allowed.	I do not recall

that there are cases of this kind in which the

Court has ever Uken upon itself the responsibility of actually assessing what the penalty should be.

MR ABBOTT:  Yes. As to the tariff aspect - I should make the

point about DURILLA's case, why it was of such

import in Justice Maurice's consideration. It was

Mr Justice Asche who sentenced DURILLA and it was

one month after he sentenced Mr Baumer. The tariff

is dealt with in addition by Justice Maurice in

his judgment. He starts at page 58 by referring

to - his view being that the sentence and licence

disqualification was manifestly excessive and

then he refers, in effect, to the tariff:

C2T76/l/MB	24	18/11/88
Baumer

Whatever language is used to define it,

culpable driving causing death or serious
bodily injury is an offence with which

courts of the several Australian

jurisdiction deal daily. Although the

driver's conduct varies from case to case,

as do its consequences and the offender's

own personal ·background, these variations
are acconnnodated within a range of sentences

conventionally applied throughout the

country, nowadays with only minimal local

variation. The penalties imposed in this

case bear no relationship to that range.

And he deals with - and I will not read it out - a number of cases and he comes to the conclusion

at page 62:

Using the resources availabe to me I have

searched for sentences handed down by

Australian state courts for culpable driving

causing death or grievous bodily harm. The Northern Territory apart I have found only

one case in which more than 4 years imprisonment

has been imposed. ·

(Continued on page 26)

C2T76/2/MB	25	18/11/88
Baumer

MR ABBOTT (continuing):  Then he says that:

Sentences of that order seem to be reserved for cases where the aggravating

features include:  a high degree of

culpability resulting in death; alcohol;

and a bad record of traffic offences.

Sentences of 5 years or more appear to

be given only in manslaughter cases or in

those rare instances where some element

of deliberation was present. Three years

has been about the top of the range where

death does not ensue.

DAWSON J:  But that sort of comparison is only useful when you

also compare the maximum sentence available, is not it?

MR ABBOTT:	Of course.
DAWSON J:	And they differ considerably from State to State.
MR ABBOTT:	They differ considerably, and it is only, I accept,

of any limited - it is only, I accept, of limited

relevance in this task.

DAWSON J:  I must say 11 years is probably a low maximum in

comparison with other States.

MR ABBOTT:	In terms of culpable driving?
DAWSON J:	Yes.
MR ABBOTT:	I would have thought it would be very high, much

higher than -

WILSON J:  No. Five years is the maximum in some States.

DAWSON J:	It is 15 years in one, anyway.
MR ABBOTT:	My researches have not extended to finding out what

the maximum is for culpable driving in each State around

Australia.

DAWSON J:  But anyway, the point remains that you have to look

at that before you can usefully - - -

MR ABBOTT:  Certainly, and what he says in general should, of

course, be read down by virtue of the different maxima

that obtain around Australia.

WILSON J:  Because, of course, culpable driving was introduced

to meet the situation where juries thought manslaughter

was too serious an offence on which to convict a

dangerous driver causing death.

MR ABBOTT:  Yes. His Honour Justice Maurice refers to that, and

it is the "there but for the grace of the Almighty go I"

concept, as he refers to it.

C2T77/l/HS	26	18/11/88
Baumer

WILSON J:  Yes, but still the CRIMINAL CODE introduced a very

different system which allowed a - perhaps it was not

so different - a 15 year maximum for culpable driving

causing death and 11 years for culpable driving causing

serious injury and one would expect to see some adjustment

upwards of the previous tariff.

MR ABBOTT:  Yes. We would not quarrel with some adjustment

upwards, but we are talking about, with respect, a giant

leap - - -

WILSON J:	Yes.
MR ABBOTT:	- - - in the elevation, without any forewarning,

but by application of what we say is an unwarranted

methodology from four years to eight.

DAWSON J: But looking at this particular offence, it must be

in the upper bracket of seriousness, must not it?

MR ABBOTT:	Well it did not cause death.	It only -
WILSON J:	But that is irrelevant.	It is a different offence.

MR ABBOTT:	It is a different section.
WILSON J:	And it is the difference between 14 years and 11 years

maximum.

MR ABBOTT:  Yes. It is a serious breach of that version of

section 154 which deals with causing serious harm to a

member of the community. I accept that, as I must.

It is not the most serious of the causing serious harm cases that one can imagine in that the injuries, although

initially severe, soon healed and without as far as one can

establish, much in the way of resiuual disabilities on

the part of the 14-year-old lad who was initially

seriously injured.

WILSON J: Yes, one would not advocate an appropriate sentence,

say, of 11 years at the maximum. but six or seven would not

be inappropriate, would it? I am just dropping eight -
a little bit because of the methodology.	Anyway, it is
not really a question to which - - -

MR ABBOTT:  I find it difficult to agree with Your Honour,

with respect, I would have thought - - -

WILSON J: The Chief Justice has said we will send it back if

we find occasion,so you are not threatened by our views,

really.

MASON CJ:  Now, it seems to suggest that from your point of

view, further discussion of the tariff is unprofitable,

Mr Abbott.

MR ABBOTT:  I will take that to heart, Your Honour.

C2T77/2/PLC 27 18/11/88

Baum.er	(Continued on page 27A)
I was dealing with Justice Maurice's

comments on the tariff and he concluded with

reference to this aspect, at page 72, that:

On the review I have made of similar offences in this and other jurisdictions,

it could not be suggested there ever has

been an instance of a court starting with
eight years - or anything like it - and

working backwards to allow for mitigating

factors. Nor, for reasons I will mention,

do I think the introduction of the

CRIMINAL CODE warrants such a marked

difference of approach in the Northern

Territory today.

(Continued on page 28)

C2T77/3/PLC	27A	18/11/88
Baumer

MR ABBOTT (continuing):

In· the remarks he made when dealing

with the appellant, the learned sentencing

judge said this:  "What increases the

seriousness of this particular offence is

the literally appalling record of the accused

so far as prior offences in relation to

driving are concerned." For my part -

said Justice Maurice -

I think this reflects error: precisely the

sort of error I have inferred as being the

explanation for a sentence so out of line

with prevailing notions of proportionality.

By this I mean prevailing notions of

proportionality not only in relation to this

class of offence, but the full gamut of
serious offences with which the Supreme Court
has to deal, for example: rape, robbery with

violence, multiple housebreakings, heroin

trafficking, intentional infliction of

grievous bodily harm, manslaughter, etc.

We have prepared a schedule of manslaughter sentences

imposed in the Supreme Court of the Northern Territory,

which may be of some assistance to the Court.

MASON CJ: In the light of what I have said to you, is

that really going to advance the argument in

this case?

MR ABBOTT:	Probably not, sir, if it is merely on the question of the principle on which the Court
proceeded.

On this aspect then, we say there

was a tariff, a range of penalties at the time

the learned sentencing judge sentenced the applicant.

The sentence which he imposed bore no relationship

to the tariff; it was doubled and the reasons
given by the sentencing judge for departing from
the tariff were only that he had substantial

previous convictions. Acting Justice Muirhead

gave no reasons for departing from the tariff,

other than the fact that section 154, so he said,

embraced a multitude of circumstances and culpability.

In our respectful submission, this is a wrong reason,

or an insufficient reason for departing from the

tariff and that the likely reason why the tariff

was departed from is because of the adoption of the

different sentencing approach to which I have

already referred.

The last aspect that I wish to put to the Court is the emphasis by the learned sentencing

C2T78/l/JM	28	18/11/88
Baumer

judge on the record of the applicant. In our

submission, a~ I have said at the beginning,
it could, in one sense, be perceived to be

the imposition of a sentence of imprisonment

to act as some form of preventative detention

of the sort condemned by this Court in

VEEN (NO. 2), which is not on our list of

authorities, (1988) 164 CLR 465, I think by

Your Honour the Chief Justice and the majority,

at page 473. There is a reference to preventative

detention at page 473 where Your Honour said:

The distinction in principle is clear

between an extension merely by way of
preventive detention, which is
impermissible, and an exercise of the
sentencing discretion having regard

to the protection of society among other

factors, which is permissible.

We would submit that what the sentencing judge

did and what the majority approved of was an
extension of penalty, or an elevation of penalty,

akin to preventative detention and we derive

that submission from remarks made by the sentencing

judge at pages 40, 41 and 43.	I refer the Court
to page 40, the last paragraph.

MASON CJ: 

You have referred us to that already, have you not?

MR ABBOTT: 

Yes. Page 41, I have referred the Court already,

to the third paragraph; page 43, to the fourth
paragraph, speaks of:

members of the public must be

protected -

and page 45, I have referred the Court to already,

where he deals - in the second paragraph.

(Continued on page 30)

C2T78/2/PLC	29	18/11/88
Baumer

MR ABBOTT (continuing): Justice Maurice referred to this

briefly at pages 70 and 71, w~ere he posed the question

that the penalty of 8 years, if the judge took the

view:

quite independently of the appellant's

character and antecedents that this was a

case calling for 8 years imprisonment, or

he has made the error of escalating the

punishment on account of the appellant's

prior criminal record.

In our submission, Justice Maurice got it right and the majority erred in allowing the sentencing remarks of

Justice Asche to stand in so far as the penalty may be

perceived to be, in effect, amounting to preventitive

detention over and above what would normally be given

for a person with the offending of this applicant,

notwithstanding his previous convictions.

MASON CJ:  But the majority's response, I suppose, is the answer

that was given at page 94, that really all the

sentencing judge was doing was drawing attention to the

need in this case, ..... emphasis on the

deterrent aspect of punishment?

MR ABBOTT:  I think that would be the response, yes. But I can

do no more than refer the Court to the passages. How

the Court considers it, whether Your Honour considers
it in the response of the majority, I leave to the

Court. We would however say that nonconstant that he has referred to it briefly, he really put it to

one side because His Honour Acting Justice Muirhead

adopted this two step approach which, in our view, is

incorrect. I will not therefore proceed to make any

submissions in relation to the sentence per se in
view of what Your Honour the Chief Justice has said

about the course this Court may adopt,dependent upon

the outcome of the other submissions. If the Court

pleases.

MASON CJ: Thank you, Mr Abbot. Yes, Mr Pauling?
MR PAULING:	Your Honours, as the outline on behalf of the respondent indicates and has been mentioned we do not
at all oppose an extension of time and we concede,
indeed urge this Court to take the view that the proper interpretation of section 154(4) is a matter of general importance and ought to be pronounced upon.
There are a few matters that I would deal with in a preliminary way. Fl.irstly, whilst the two matters of
SWAN and NAlvfATJIRA indicate that Mr Justice Rice
is, indeed, adopting a two step approach in that way,
he is alone in that interpretation and others are
seeking to find other ways around it but it is certainly
an unsatisfactory situation and one that needs clarification.

C2T79/l/PLC	30	18/11/88
Baumer

Your Honour Justice Deane asked about the

situation in 154 and whether or not somebody slipped

a Mickey Finn might be caught in it. The answer

is to be found in the definition of "involuntary

intoxication"; the effect of it being that the drag-net

provision would be avoided provided it was established

the intoxication was involuntary.

The third matter is the question of where

the section came from at all. It is a unique draft

so far as we are aware that was borne of a situation

where, in the most extraordinary crimes of violence,

a plea was often heard that the person was so

intoxicated as to be quite incapable of forming any

intent and that, in effect, they should not be found

guilty or convicted of anything. And it was a reaction

to that that the policy behind 154 was enacted and it

was thought that if people were to plead or rely on

intoxication as a matter exculpatory of themselves

th~n an offence not requiring intent or even foresight

ought to be introduced so that those persons were

caught.

The view the respondent takes, Your Honours, is

that Chief Justice O'Leary and Acting Justice Muirhead

were indeed wrong in the way in which they approached

section 154(4) in that there is no need for a two step

approach. But when one gets back to the sentencing

judge, Justice Asche, the sentence he imposed was not

affected by any error in the interpretation of

T79 section 154(4) and its application. So that when

the appeal is considered, really, in the two parts

that there are to it, firstly, what is the proper

interpretation of the section, the answer to that

question does not affect the sentence that Justice Asche

arrived at because he did not lead himself into error.

It is only the Court of Criminal Appeal,and it would appear of their own motion,. that developed what has developed out of the judgments.

WILSON J: But was not Justice Asche's error the manner in which

he said "What increases the seriousness of this

particular offence is the literally appalling record."?

MR PAULING:  Yes, I am coming to that. I am saying that is the

second part.

WILSON J:  I thought you were defending the sentence chosen by

the trial judge on the basis that it was not infected

with any errors.

MR PAULING:  Yes, I propose to seek to do that as well, Your Honour.

I am dividing it in two parts.

MASON CJ: You were saying it is merely not infected by this

particular - - -

MR PAULING:  Yes.

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WILSON J:	Or the other?
MR PAULING:	I will deal with the other· separately.
MASON CJ:	But at this stage you confine - - -
MR PAULING:	At this stage.
DEANE J:	But if we thought that the Court of Criminal Appeal
was affected by error, the sentence could not stand
because the applicant would not have had an effective appeal to a court that was really competent to deal with the question of sentence.

MR PAULING: That is correct, in a sense in which MRAZ sort of

deals with being denied an opportunity. Yes, I cannot argue with that. But the question then arises as to

whether or not the way in which Chief Justice O'Leary

and Acting Justice Muirhead arproached the matter in

proceeding to dismiss the appeal involved them in

allowing the error to have an active part to play.

So that the first step we would urge upon the Court is

that in the event that special leave is to be granted,

it be granted on the narrow point only and that is

the proper interpretation of section 154(4); the
broader point being not one of general application and

not one to which the judgments in LOWE would suggest was one justifying a general grant of special leave.

It should be a limited grant of special leave.

DAWSON J:  I am not quite clear what you are suggesting. If

we were to uphold the first poin4 what do you suggest
we do then?

·MR PAULING:  I suppose the proposition is put that if, in fact,

the appellant was denied a proper appeal because the

majority got it wrong, I suppose the answer to that

is that it must go back. So .. the question then arises:

go back to who? Because if it went back to the sentencing

judge in the first instance,· you are saying, "Well,

you didn't fall into error in this way but because

the Court of Appeal fell into error, you ought to

reconsider it."

DEANE J: Obviously, it would go back to the Court of Criminal

Appeal to deal with the appeal in accordance with law.

MR PAULING:  Yes, it will have to be a differently constituted

Court of Appeal because by January none of them will be

there. I think once one logically gets to the point we

'are advocating,the error of the majority, the result

seems rather foreclosed. In another place, the actual

sentence can be defended with appropriate vigour

and considerations there relevant can be agitated

but there is not - - -

WILSON J:  Do you say that there was no error of law by the trial

judge in the weight he gave to the record?

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MR PAULING:	Yes.
WILSON J:	I would just like to hear you on that.

MR PAULING:  Yes. The record that the man had was, in terms

of the judgment of the Chief Justice Lord Lane in

BOSWELL's case which is set out in Justice Maurice's judgment, mainly a matter of aggravation. In that

judgment he was talking about aggravating factors

and said:

Next, previous convictions for motoring

offences, particularly offences which

involve bad driving or offences involving

the consumption of excessive alcohol before

driving. In other words the man who

demonstrates that he is determined to

continue driving badly despite past

experience.

And, in reliance on that it was a proper exercise to

say that the man's record was an aggravating factor,

not merely a matter disentitling him to lenience.

TSO	And at 61 he refers to the fact of aggravating features
being present, then a custodial sentence is generally
necessary.

We would adopt, with respect,that which

Justice Muirhead said at page 94:

Care must always be taken to ensure that

a man, already punished for past offences,

should not again be punished. It is "trite

law" that a man is not to be sentenced on his

record.

And His Honour there goes on and deals factually with

the matter.

What we submit is that here was an offence

aggravated by a number of factors, one of them being

man's contempt for road users and the safety of others	alcohol, another being aggravated by the fact of this
over a period of years which made it, of itself, a more serious offence and the judge was entitled to take
that into account. And whilst the sentence is truly
said to be "double the tariff", there is no basis, we say, for saying that the only rationale for it was the
man's previous record, despite what was said about
DURILLA's case for example, where other factors may well intrude; for example, it was· an Aboriginal driving a
vehicle not on a public road in DURILLA's cas~
whereas this involve a non-Aboriginal person driving a
care on a major public highway.
So, it can be said that the sentence is a very high one but that fact alone has never persuaded this
Court to want to interfere and reduce what otherwise
might be a proper sentence. It was plainly clear, as

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Justice Muirhead points out, that the combination of alcohol and violence or crime in the Northern Territory

is a matter of notoriety and that the policy matters

behind the Code plainly indicate that something had to
be done about it and the policy was to impose heavier

penalties where alcohol was involved as a factor.

And approached that way and giving proper effect to

the policy, the sentence is well within, we suggest,

allowable limits and not tainted by over-reliance
or over-punishment of a man because of his past.

I mean, there is no doubt that it is an extraordinary

record the man managed to rack up over those years
but the judge's remarks on sentencing, in my submission,

do not disclose that he did otherwise than give it

proper weight. At page 45 he said:

There is no doubt, of course, that he

must be given a gaol sentence. The only

question is the length of that sentence. I am quite satisfied that in the circumstance of this case, and the record of the accused,

the sentence called for is greater than any

of the sentences imposed in the cases to which

I have been referred.

So, we say it cannot be demonstrated that the reason

for the quantum of the sentence is, in fact, a double

jeopardy or punishing him again for his past. I think

that becomes academic if it be necessary to avoid

any two step approach, that the matter proceed back

to a Court of Criminal Appeal with appropriate

directions as to the meaning of. the section so that the

appeal can be properly disposed of.

DEANE J: But if one were to think, on a reading of the trial

judge's connnents in context that he had sentenced on
the basis that the sentence should be increased by

reference to past record, you would agree, would you

not, that something should be said about :that if

it is sent back? I mean, you would not suggest that

that was a justified approach to increase the

appropriate sentence because a man had a bad record?

MR PAULING:  No. It would aggravate the offence to the extent

that Lord Lane speaks of. It would be an aggravating

of circumstances when you were comparing a range of -

let us confine it to driving offences. If you were

trying to rank them in some sort of order, one ot the things that you would take into account is whether or not any of the accused persons had an extraordinary

record showing absolute contempt for the safety of

others.

T81 WILSON J: Do you say that is a special sentencing principle

applicable to driving offences?

MR PAULING:  I suppose if there were - the situation might

arise, for example, with the constant petty thief;

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that eventually courts, quite justifiably will say,

"Well, everything that has been done in the past

you've just ignored" - - -

WILSON J: Say, he may qualify for the maximum. If it was a

petty offence which had a maximum, but you would
not say that was because of his record. The only

reason he would not be given half the maximum is because there was no ground for leniency, having

regard to his record.	Is that not the proper
sentencing principle?

MR PAULING:  It is, yes. But there is a difference between

sorting out the gravity of the offence with which one

is dealing and then taking into account factors

personal to the offender.

WILSON J: And you are saying that a man's record increases

the gravity of the offence?

MR PAULING: Yes.-

WILSON J: That is what I am having some difficulty with.

MR PAULING: - - - in the ·way in which Lord Lane contends it to be an

aggravating feature, where it leads to the conclusion

of the court that this is a:

man who demonstrates that he is determined

to continue driving badly despite past

experience.

That is set out at page 60 of the application book.

WILSON J:  Has anyone else agreed with Lord Lane that you know

of?

MR PAULING:  I do not understand it has been addressed in that

way by anyone else but the case involved a general

review of sentences, bearing in mind the maximum in

England which was five years.	But we would contend
that Chief Justice O'Leary, whilst maybe wrong in

terms of his view of the meaning of section 154(4),

was certainly right in drawing attention to

policy matters in suggesting that the high sentence,
perhaps out of "tariff" range reflected the fact

that not enough attention was given to the expanded

maximum available. He pointed out that previously

the maximum, whether causing death or grievous bodily hard, it did not matter, was seven years. So that in the case of death the policy matter to be viewed in

the Code is that the maximum available has doubled

and that it may be that the average, as it were,

of the tariff had not caught up, it was suggested by

Chief Justice O'Leary that it was time it did.

It is a bit like Sir Anthony Wedgewood Benn

who said he would never rest until no one in England

earned less than the average wage which was a bit of

a mathematical - -

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So that we would suggest that it is not

plain. We contend that section 154 ought to be

dealt with; that it does not plainly appear that

the sentence is erroneous in the sense that excessive

or wrong use was made of the man's prior history

and that the matter should be, in view of what

Your Honour the Chief Justice said, sent back to a

C82 Court of Criminal Appeal.

I think I have already submitted that, in fact,

we adopt, with respect, what Justice Muirhead said

at pages 93 and 94 about the use made by the

sentencing judge of the man's prior record.

Unless Your Honours would like me to assay

further on any particular matter, those are the

submissions on behalf of the respondent.

MASON CJ:  Thank you, Mr Pauling. Mr Abbott?

MR ABBOTT:  Could I briefly respond by referring the Court

to the book "Sentencing, State and Federal Law

in Victoria" by Fox and Fryberg. At page 461

the authors say in paragraph 11.403:

In the absence of statutory directions to the contrary there is no principle of sentencing that demands that increasingly

more severe sanctions be administered to

persons who persist in their criminality -

et cetera.

DAWSON J: Is there any reference to BOSWELL's case there?

MR ABBOTT: In the footnotes, no, Your Honour.

And reference to the matter raised by

Justice Wilson: the sentencing judge seems not

only to have taken into account the previous convictions is a

method of increasing the sentence but he spoke, at

page 43, eight lines from the bottom:

society must be protected from people

who connnit offences of this nature,

and that people with the propensity

of the accused to continue to commit
these offences, must be kept away for

the protection of society.

It seems to, in our submission, be adding on more

to keep him away longer. If the Court pleases.

MASON CJ: Thank you, Mr Abbott. The Court will consider its

decision in this matter.

AT 4.01 PM THE MATTER WAS ADJOURNED SINE DIE

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