Bicknell v Davis - [2002] NTSC 22

Bicknell v Davis [2002] NTSC 22
PARTIES:BICKNELL, Nigel
v

DAVIS, Stuart Axtell

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 55 of 2001
DELIVERED:  10 April 2002
HEARING DATES:  1 November 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

CRIMINAL LAW
Particular offences – property offences.
CRIMINAL LAW
Appeal against sentence.
REPRESENTATION:
Counsel:
Appellant:H Spowart
Respondent:  T Elliot
Solicitors:
Appellant:NT Legal Aid Commission
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0202
Number of pages:  10

Mar0202
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bicknell v Davis [2002] NTSC 22
No. 55 of 2001

BETWEEN:
NIGEL BICKNELL

Appellant
AND:
STUART AXTELL DAVIS

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 10 April 2002)

Appeal against sentence. On 18 September 2001 the appellant pleaded guilty to stealing a handbag and contents valued at $150 on 29 April 2001. The offence carries a maximum penalty of seven years imprisonment. In the circumstances it was not regarded by the prosecutor or the Court as falling within the former mandatory sentencing regime. The appellant was sentenced to imprisonment for a period of three months, but it was ordered that it be suspended after 21 days and the Court specified a period of 12 months as the operational period. His release was subject to conditions that he place himself under the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions about education, vocational training, employment, residence, associates, reporting, and education, counselling and treatment for alcohol abuse, drug abuse and gambling. A condition was also imposed that as soon as practicable following his release from prison he take part in an alcohol and gambling rehabilitation programme chosen by the delegate and that he obey all reasonable directions of the coordinator of the programme, complete the programme to the satisfaction of the coordinator and not do anything that would result in his discharge from the programme. The imposition of those rehabilitative measures as part of the sentencing process was no doubt seen by the Court as at least desirable given the circumstances of the offence and the offender. In that regard it might be noted that he was at the same time fined $400 for having on the same day administered amphetamines to himself.

The appeal goes only to the sentence imposed in respect of the stealing charge and upon the single ground that it was manifestly excessive. The circumstances of the offence, briefly, were that early on the evening in question the appellant administered the amphetamine to himself. Later he went to a nightclub and was there for several hours consuming alcohol. At about 2.50am, whilst a patron at the nightclub, he took a black handbag which had been placed under a table inside the nightclub, put it under his shirt and went to the toilets. He was observed by a security member to have done that. He went into one of the toilets and proceeded to rummage through the bag where he was found by the security staff. He attempted to run away, but was apprehended and held pending the arrival of police. When cautioned the appellant indicated his willingness to answer questions, acknowledged that the bag was not his, said he did not know from whence he had obtained it, and when asked why he had taken it, indicated that he had lost $500 gambling and that he was looking through the bag to find money. He denied that he was under the influence of any drugs at the time he was spoken to by police.
The appellant was aged 24 at the time of the offending. He grew up in a town in New South Wales, completed year 12 secondary education, worked in the manufacture of mobile homes and had intended to commence studies to become a schoolteacher. He was running short of money and decided to come to the Territory looking for work. While he had managed to do that, he had not dealt with the gambling problem which he brought with him. At the time he stood for sentence he was sharing a house in Darwin and contributing part of the rent. He had no local family and still harboured the ambition of commencing university studies, particularly as a teacher. Since committing the offence he had recognised his gambling problem and had, at the suggestion of his legal representative, attended at Amity Community Services on 22 and 30 August regarding his habitual gambling behaviour. He told the counsellor about the offence he had committed, that he had lost all his money gambling and was very intoxicated. Arrangements had been made for ongoing counselling and education regarding both alcohol and gambling problems.
The appellant has a prior criminal history in New South Wales, but it is insignificant comprising principally motor vehicle offences. There is one which smacks of dishonesty, but he was given a bond to be of good behaviour for 12 months.
I turn to the particular arguments advanced in support of the single ground of appeal.
It is said that the learned Magistrate “failed to award an adequate discount for the appellant’s plea of guilty and cooperation with law enforcement authorities”. Whether any such “discount” was awarded, and, if so, its form, is not able to be determined upon consideration of his Worship’s remarks. That was also said to be an error. However, I do not consider that to necessarily give rise to appellable error. In Kelly v The Queen (2000) 10 NTLR 39 at 49 the Court of Criminal Appeal expressed the view that it was desirable that a sentencing court should indicate the extent to which, and the manner in which, a plea of guilty has been given any weight as a mitigating factor. The Court went on to say that often the assistance given to the law enforcement authorities in investigating the offence may diminish the value of the plea given the strength of the prosecution case arising from that assistance.
“The combination of those two factors, however, allows for greater mitigation than would be a plea without that cooperation. Public expense occurs not only in the courts, but also in the investigatory process”.
Here, the appellant was caught red handed and did not deny his culpability when taxed about it at the scene. He indicated a guilty mind. In those circumstances there was room in which to mitigate the sentence. The sentence to imprisonment was substantially suspended, but his Worship does not indicate that that was done in consideration of the appellant’s cooperation and plea. The absence of any clear indication of mitigation on account of cooperation and plea may well be a pointer towards why a manifestly excessive sentence was imposed.
Next, it was said that the Court failed to give adequate weight to the appellant’s youth. I dismiss that argument. He was 24; he had a reasonable upbringing and education, but for an unexplained reason took to alcohol and gambling. There are no indications beyond that of his immaturity on account of age.
It is then said that his Worship failed to extend appropriate leniency to the appellant bearing in mind his lack of significant criminal history. The usual ground of appeal in this area lies in it being suggested that the sentencer has increased the sentence otherwise appropriate because of the criminal history. There is no indication of that in his Worship’s remarks here.
It was said that his Worship failed to adequately take into account the appellant’s prospects of rehabilitation and steps taken towards rehabilitation. It will be noted that the attempts at rehabilitation commenced after he had committed this offence. More weight can be given to prospects of rehabilitation where an offender has embarked upon the appropriate remedial training and the offence can be seen as being a lapse, as opposed to where the offence is a precipitating factor. Bearing in mind the manner in which his Worship structured the sentence and the conditions to be attached to the suspended sentence he was obviously concerned for the appellant’s rehabilitation.
It was submitted that the offence was opportunistic in nature, but I reject that. It was not put to his Worship, and there is nothing to indicate that that was the fact on the material available. It was put by counsel before the Court of Summary Jurisdiction that the appellant recalled having consumed a fair quantity of bourbon mixed with coke and that his recollection of what occurred with the bag was scant. In my opinion no benefit can be given to the appellant where there is nothing to show the offence was “opportunistic”, no more than could the sentence have been heavier upon a suggestion only that the appellant’s culpability was greater because he had been seen going from table to table and looking under them until he found a bag which he then took.
The next two particulars claimed that his Worship placed excessive weight on general deterrence and an allegation that he erred in finding that the offence was prevalent where there was no evidence to support such a finding.
His Worship noted that he had a duty to support those who legitimately go to nightclubs:
“It’s the custom of the country that women usually leave their bags at tables when they go to dance, for example. It is not usual to see a woman carrying a handbag or purse on the dance floor … .”
That seems to me to be natural enough and no exception was taken to those remarks. I would think that given that custom responsible people attending nightclubs respect the property of others even though left where it might be easily enough stolen. For that reason I would not agree that general deterrence is not an appropriate principle of sentencing to be applied. Anyone who is minded to frequent a nightclub and go around with a view to stealing unattended bags (or indeed any other property) should understand that upon being found guilty they will be punished. Indeed, that is usually the case with any form of stealing.
However, the issue of the alleged prevalence of this type of offence has some substance. In the course of submissions from counsel then appearing for the appellant his Worship said:
“I have got no intention of letting him off scot-free. The fact that parliament says I don’t have to give him 14 days doesn’t detract in any way from what I have been saying to people who snatch bags from nightclubs for the past twenty odd years. … but I hear it all the time about women’s bags. It is a prevalent offence. I’ve always dealt with it by imprisonment, I’m going to deal with it again by imprisonment”.
In the course of his sentencing remarks his Worship described this particular offending as minor compared with an incident at another nightclub in town in respect of which his Worship recalled dealing with an offender who during the course of the night had taken around ten or a dozen handbags.
With respect, his Worship’s personal recollection of a particular occasion in which a person stole a number of bags from another nightclub does not make the offence prevalent nor does the fact that his Worship may have heard all the time about such offences unless, of course, his Worship had heard about them in the course of his duties as a Magistrate in sentencing offenders for such offences. If his Worship had heard about it so many times in that capacity, then there could only have been a remarkable degree of consistency between the circumstances of the offence and the circumstances of the offender in each case for him to have properly dealt with each offender by imprisonment. According to counsel for the appellant before this Court perusal of the Legal Aid files produced only one other such case which arose in 1999, and it was said that the same learned Magistrate imposed a sentence of 96 hours community service. Counsel for the respondent on hearing the appeal did not attempt to support his Worship’s remarks by reference to statistical material.
I acknowledge his Worship’s long period of service as a Magistrate in the Northern Territory and, no doubt, very significant experience in dealing with stealing offences, but I cannot help but find in this case that his views in respect of this particular type of offence have lead to error in the exercise of the sentencing discretion.
Error having been established on the part of the learned Magistrate it is now necessary for this Court to reconsider the matter and sentence the appellant afresh.
I bear in mind the circumstances of the offence. It was shameful. The appellant and indeed the owner of the bag might consider themselves lucky that it did not contain a substantial amount of cash or valuable items. The fact that the offender was affected by alcohol does not excuse what he did, although it may explain it. He deserves no credit for the fact that the bag was recovered.
I note, however, that this was the first occasion on which this 24 year old man had committed such an offence. It was out of character and he claims that that was so because of the loss of all his money on that night by gambling. Again, addiction to gambling is no excuse. It does no more than explain why he committed the offence. I consider that deterrence both specific and general and rehabilitation are the predominant sentencing principles to be applied in his case. Specific deterrence will be reinforced by the imposition of a prison sentence; general deterrence will be affected by others, who are of like mind, knowing that they stand to be sentenced to imprisonment. Had there been substance in his Worship’s impression that this type of offending was prevalent, then I would not have considered wholly suspending the sentence. But, since it would appear that there was a misapprehension on his Worship’s part, and since I consider that rehabilitation is a major objective in respect of this offender, I invited counsel for the appellant to provide me with up to date information concerning the appellant before imposing the fresh sentence.
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