Brown v Court
[2023] NTSC 61
•1 August 2023
CITATION:Brown v Court [2023] NTSC 61
PARTIES:BROWN, Dwayne
v
COURT, Michael
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA No. 4 of 2023 (22234228)
DELIVERED: 1 August 2023
HEARING DATE: 15 June 2023
JUDGMENT OF: Huntingford AJ
CATCHWORDS:
CRIMINAL LAW – Sentencing – Appeal against sentence – Manifest excess – Plea of guilty – Relevant factors on sentencing – Appeal allowed
Local Court (Criminal Procedure) Act 1928 (NT) s 163
Sentencing Act 1995 (NT) s 40, s 108A
Traffic Act 1987 (NT) s 31Alice v Burgoyne [2003] NTSC 107; Andalong v Jones [2019] NTSC 87; Arnold v Trenerry (1997) 118 NTR 1; Cumaiyi v Tyson [2023] NTSC 29; Gokel v Hammond [2001] NTSC 9; Janimina v Edgington (unreported, NTSC, Mildren J, 6 September 1995); Kelly v Winzar [2006] NTSC 59; Oldfield v Chute (1992) 107 FLR 413; Patterson v Balchin [2007] NTSC 19; Van Toorenburg v Westphal [2011] NTSC 31, referred to
REPRESENTATION:
Counsel:
Appellant:H McDuff
Respondent: P Williams
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Director of Public Prosecution
Judgment category classification: B
Judgment ID Number: Hun2305
Number of pages: 14
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSBrown v Court [2023] NTSC 61
No. LCA No. 4 of 2023 (22234228)
BETWEEN:
DWAYNE BROWN
Appellant
AND:
MICHAEL COURT
Respondent
CORAM: HUNTINGFORD AJ
REASONS FOR JUDGMENT
(Delivered 1 August 2023)
Introduction
This is an appeal pursuant to s 163 of the Local Court (Criminal Procedure) Act 1928 (NT) against a sentence imposed by the Local Court on 25 November 2022. The sole ground of appeal is that the sentence of six months’ imprisonment, suspended immediately for 12 months, was manifestly excessive.
The appellant pleaded guilty to six traffic offences, arising out of the same incident on 2 November 2022. This appeal relates to the sentence imposed on count 1, which was an offence of driving a motor vehicle on a public street while disqualified from holding a drivers’ licence, contrary to subsection 31(1) of the Traffic Act 1987 (NT). The maximum penalty for that offence is imprisonment for 12 months. No mandatory disqualification period applies and the sentencing judge did not make an order imposing a period of licence disqualification.
In the same proceeding, the appellant was convicted and sentenced for driving an unregistered, and uninsured, vehicle, and three separate offences of driving with an unrestrained child, aged over six months but less than four years. Fines totalling $2,000 were imposed in relation to those offences, in addition to victim levies. There is no appeal in relation to any of those sentences.
Facts and personal circumstances
The circumstances of the offending were that on 2 November 2022 at 1.56 pm, the appellant was stopped by police on Memorial Avenue, Alice Springs, for a random breath test. He tested negative for alcohol. The appellant gave his name but could not produce a driver’s licence. Police checks revealed that the appellant was disqualified from holding a licence, and that the registration and insurance for the vehicle had expired on 19 June 2022. The road conditions were described as good, traffic flow was light. There were two adult and three child passengers. One of the children was sitting in the lap of an adult. None of the children were using an approved child restraint.
The appellant is a 30-year-old man from Nyirripi. His first language is Walpiri, but he speaks some English. The appellant has a partner, and a child then aged four. He was not in employment. The appellant owed $5,207 in unpaid fines, which he said that he was paying off from his unemployment benefits. The appellant said that he was driving family members to the local shop to get food when he was stopped. There were no extenuating circumstances, and no suggestion that he did not know that he was not allowed to drive.
The appellant had a relevant history for traffic offending:
(a)On 12 August 2022, he was convicted of four offences committed on 25 June 2022. The most serious of those was driving with a mid-range blood alcohol reading (.104%). That was the offence which prompted his licence disqualification. The three other offences dealt with on that day were driving an unregistered vehicle, driving a vehicle without a current compensation contribution, and driving unlicensed. A fine was imposed.
(b)On 8 June 2022, he was convicted of four offences committed on 26 April 2022: driving unlicensed; driving a vehicle without a current compensation contribution; driving an unregistered vehicle; and driving with an unrestrained child aged between six months and four years in the vehicle. The hearing proceeded ex parte on that occasion and the appellant was fined.
(c)On 21 August 2014, the appellant was convicted of two offences committed on 10 July 2013: driving unlicensed; and driving with a high range blood alcohol content (.194%).
(d)In December 2009, when the appellant was 17 years old, charges of driving with a medium range blood alcohol content and driving unlicensed were proven but dealt with in the Youth Justice Court without recording a conviction.
There were also two convictions for breach of bail from 2013 and 2014 (no penalty imposed on either occasion), but no convictions for any other offence.
Legal Principles Manifest Excess
The principles applicable to this ground of appeal are well known and I respectfully adopt the summary set out by Brownhill J in Cumaiyi v Tyson as follows:
[7] The principles applicable to an appeal against sentence on the ground of manifest excess are clear and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]) and Edmond v The Queen [2017] NTCCA 9 (at [4]). Those principles are:
(a)The sentence is not to be disturbed on appeal unless error is shown.
(b)The presumption is that there is no error.
(c)Appellate intervention is not justified simply because the sentence is markedly different from other sentences imposed in other cases.
(d)Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
(e)Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.
(f)It must be shown that the sentence was clearly, not just arguably, excessive.
(g)There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.
[8] Matters to be considered in such an appeal are the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender. [footnote omitted][1]
Standards of sentencing
This Court has considered the range of sentences for driving while disqualified on numerous occasions. In Arnold v Trenerry,[2] Mildren J held that a sentence of five months’ imprisonment for driving while disqualified was excessive and re-sentenced the offender to four months’ imprisonment, fully suspended on a home detention order being entered into. The appellant was speeding when she was apprehended, but was not intoxicated. She had, however, committed the same offence two days before. The sentence for the first offence in time, of two months’ imprisonment (in relation to which there were some extenuating circumstances) was not disturbed and his Honour ordered that the sentences for the two offences be served concurrently.
In Kelly v Winzar,[3] the appellant was sentenced to an aggregate of four months’ imprisonment, suspended after one month, for driving with an excess blood alcohol reading (.203%) and driving while disqualified. There were passengers in the vehicle but no other aggravating factors. The appellant was a 23-year-old Aboriginal man who had a relevant traffic convictions for offences including driving with a mid-range excess blood alcohol level, driving in a manner dangerous, and three charges of driving unlicensed. He had no prior conviction for driving while disqualified. An appeal on the ground of manifest excess was upheld. Olssen J commented that the aggregate penalty was “severe”, taking into account that it was coupled with a five-year disqualification period. His Honour stated that the starting point of six months was, even for both offences, “patently disproportionate to the offending given the background of this offender”.[4] The offender was re-sentenced to six weeks’ imprisonment, suspended after 21 days with an operative period of 12 months.[5]
The appellant in Patterson v Balchin[6] pleaded guilty to three offences arising out of two incidents. On the first set of charges, driving disqualified and driving with blood alcohol exceeding .08 (.104%), he was sentenced to an aggregate four months’ imprisonment suspended on entering into a home detention order. For the second single charge of driving unlicensed a sentence of four months’ imprisonment, suspended on the same basis, was imposed. The two sentences were accumulated. At the time of the driving while disqualified offence the appellant was in the eleventh month of a 12 month disqualification period. He was 20 years of age, had a relevant medical condition reducing moral culpability, and subjective circumstances which invited leniency. On appeal, the offender was re-sentenced to two months’ imprisonment, suspended upon entry into a home detention order for that period, for each set of offending. The sentences were also cumulative, giving a total sentence of four months’ imprisonment.
In my assessment, all of the above sentences involved circumstances which made the cases more serious than the present example. In Kelly v Winzar and Patterson v Balchin, the offence of driving while disqualified was significantly aggravated because the offenders were also driving with excess blood alcohol, in the case of Winzar, well into the high range. In Arnold v Trenerry, the offender committed two very similar offences within two days resulting in a more severe sentence for the second offence.[7]
Andalong v Jones[8] is an example of driving while disqualified, and driving with excess blood alcohol, which Blokland J assessed on appeal as “in the worst category of offending of this kind”.[9] The facts were that, while disqualified from holding a licence, the offender was driving on the highway with a blood alcohol level of .330 when he lost control of the vehicle and rolled. The offender had an extremely poor traffic history including 13 prior convictions for driving disqualified and 12 for driving with excess blood alcohol at various levels. The offences were committed within a short period of the offender’s release from gaol after serving a six-month sentence for similar offending. The Local Court imposed the maximum sentence of 12 months’ imprisonment for each offence and ordered accumulation of four months, giving a total effective sentence of 16 months. A non-parole period was set. On appeal, each sentence was reduced to nine months, allowing a discount of 25% for the offender’s early plea.[10] There was an order for accumulation as to three months, giving a total effective sentence of 12 months. The non-parole period of eight months was not disturbed.
Consideration
In the Local Court it was submitted on behalf of the appellant that a fine would be appropriate. The sentencing judge noted that that offence “ordinarily involves a sentence of imprisonment and actual imprisonment at that”.[11] His Honour referred to the appellant’s history of traffic offending and said that the appellant had “been before the Court twice in the previous 12 months for the same type of traffic offences”. The appellant had no prior conviction for driving while disqualified.
While maintaining that a fine was appropriate, in oral submissions the appellant conceded that a custodial penalty was open. His counsel acknowledged that, as a general proposition, a term of imprisonment will be imposed for the offence of driving while disqualified, subject to the fundamental principle that a sentence must be proportional to the objective gravity of the offending. There is no rule that a first offender who drives disqualified must be sentenced to imprisonment,[12] and other options such as community work may often be appropriate. However, there is no doubt that a custodial sentence was also within range.[13] The real contest is as to the length of the head sentence.
The necessarily brief reasons of a Local Court judge conducting a busy list should not be subject to the sort of critical analysis that written reasons receive.[14] It is clear from the reasons given that his Honour emphasised deterrence. There can be no criticism of that approach. Deterrence is the paramount consideration in sentencing for driving while disqualified.[15]
Similarly, his Honour’s consideration of the appellant’s previous offending was entirely appropriate. It was relevant to the offender’s attitude to the traffic laws and the Court’s orders. Further, the appellant was not entitled to the leniency that might be afforded to a person with no relevant criminal history.
On a fair reading of the reasons, there is no basis to suppose that his Honour did not take into account that this was the appellant’s first charge of driving while disqualified. Counsel had made that submission, while at the same time appropriately conceding that the appellant had previous convictions for driving unlicensed. Driving unlicensed and driving while disqualified are different offences. However, repeated unlicensed driving can be relevant if it indicates an attitude of disregard for the traffic laws.[16] Other factors, for example where an offender has never held a licence (which was not proved in this case) can also be an aggravating.[17]
The appellant submitted that this offence falls within the low range of objective seriousness for this offending. The appellant relies upon the fact that his driving was not dangerous, he was not intoxicated, no members of the public were put at risk, and that he was compliant with police.
The gravamen of the offence of driving while disqualified is the failure to comply with the Court’s order. While the seriousness of the offending must be determined on the facts of what occurred, the lack of aggravating features does not justify further leniency. The appellant had no good reason for driving, and he was aware that he was prohibited from doing so. He drove with five passengers in the car, more than there were seats for.
The fact that this was a first offence of drive disqualified is relevant. It is also relevant that the offending occurred less than three months after the making of the disqualification order, which tends to indicate a degree of defiance, and therefore elevates the seriousness of the breach.
Taking all of the factors into account, this was an offence under the mid-range of seriousness for this type of offending.
There is no reference in the sentencing remarks to the early plea of guilty nor any discount afforded as a result. Section 108A of the Sentencing Act 1995 (NT) requires that where a court imposes a less severe sentence because of a plea of guilty that the sentence that would have been imposed is stated and recorded. It is, however, not an error of law if the sentence which would have been imposed but for the plea is not stated.[18] In Andalong v Jones, Blokland J noted that although the plea is usually taken into account when fixing the head sentence it can be reflected in other ways, such as a disposition lower in the sentencing hierarchy.[19] As a custodial sentence was imposed, that alternative approach was not taken in this case.
It can be accepted that the appellant was given the full benefit of his early plea and concomitant acceptance of responsibility. If a discount of 25% were afforded, as is often the case in traffic matters even where there is no evidence of remorse, the starting point would have been eight months’ imprisonment. The maximum penalty is 12 months’ imprisonment. Given the relatively low objective seriousness and taking into account the subjective circumstances of the offender, a starting point of eight months for a first offence of driving while disqualified is plainly and obviously excessive. Even if a lesser discount of 20% were applied, a starting point of seven and a half months would also be excessive.
Mr Williams for the respondent submitted that the suspension of the sentence was a significant act of leniency. While that is clearly the case, s 40(3) of the Sentencing Act provides that a court must not impose a suspended sentence unless the period of imprisonment would be appropriate if unsuspended.
Mr Williams also pointed out that no additional licence disqualification period was imposed. This is a relevant factor however, even making allowance for that, I have concluded that this is one of those cases where although there is no specific error identified, the sentencing discretion has miscarried. I have come to this conclusion based upon the length of the sentence imposed when compared with the seriousness of the offence, the sentencing standards apparent from other cases, and the circumstances of the offender as discussed above.
Therefore, I will allow the appeal and quash the sentence imposed on count 1.
Re-sentencing
For the reasons already stated, this was an offence below mid-range for offences of this type. There is a need to consider general deterrence. The offender had a limited, although recent traffic history. He displayed an obvious disregard for the disqualification, and some disregard for traffic laws in general. However, it could not be said that his offending was of the sort of persistent or recidivist nature which would justify a significant emphasis upon specific deterrence.
I am mindful that some of the surrounding circumstances of this offending, in particular the three charges of having young children unrestrained in the car, were the subject of separate charges and sentences. The sentence on count 1 must therefore be proportionate to the criminality involved in that offence only.
It is appropriate that the appellant be convicted and sentenced to six weeks’ imprisonment on count 1, reduced from eight weeks on account of his timely plea and acceptance of responsibility. The sentence will be suspended immediately.
The original suspended sentence has been in effect now for approximately eight months. Since 25 November 2022, the appellant has not been charged with any further offence. That factor, which was obviously not available to the Local Court at the sentencing hearing, provides some additional evidence relevant to the appellant’s prospects of rehabilitation.
A suspended sentence with a 12-month operational period was appropriate at the time of the original sentence, but the operational period should now be three months, taking into account the period already served.
Orders
(1)The appeal is allowed.
(2)The sentence on count 1 imposed by the Local Court is quashed.
(3)On count 1, the appellant is convicted and re-sentenced to imprisonment for six weeks, that sentence to be suspended immediately for a period of three months in accordance with s 40 of the Sentencing Act.
[1] Cumaiyi v Tyson [2023] NTSC 29, [7]–[8].
[2] (1997) 118 NTR 1.
[3] [2006] NTSC 59.
[4] Ibid, [30].
[5] It is not clear whether the appellant had already spent some time in custody.
[6] [2007] NTSC 19.
[7] Arnold v Trenerry (1977) 118 NTR 1, 4.
[8] [2019] NTSC 87.
[9] Ibid, [41].
[10] The plea had not been properly taken into account in the court below.
[11] Transcript 11/1/2023, p 4.
[12] Arnold v Trenerry (1997) 118 NTR 1, 7 relying upon Oldfield v Chute (1992) 107 FLR 413.
[13] Thomas J discussed the authorities on this point in Gokel v Hammond [2001] NTSC 9, [15]. See also Alice v Burgoyne [2003] NTSC 107, [16]–[17]; Cumaiyi v Tyson [2023] NTSC 29, [13].
[14] Janimina v Edgington (unreported, NTSC, Mildren J, 6 September 1995), [18]–[19]; Van Toorenburg v Westphal [2011] NTSC 31, [23].
[15] Gokel v Hammond, [2001] NTSC 9, [20]–[21].
[16] Cumaiyi v Tyson [2023] NTSC 29, [16].
[17] Arnold v Trenerry (1997) 118 NTR 1, 7.
[18] Sentencing Act 1995 (NT), s 108A(3).
[19] Andalong v Jones [2019] NTSC 87, [23].
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