Bush v Nayda - [2001] NTSC 97

Bush v Nayda [2001] NTSC 97
PARTIES:BUSH, John Robinson

v
NAYDA, Wayne Kenneth

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 35 of 2001 (20104506)
DELIVERED:  7 November 2001
HEARING DATES:  26 September 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justices – appeal against sentence – unlawful entry – stealing – causing damage – unlawful use of a motor vehicle – whether sentence manifestly excessive – Justices Act 1928.
Mason v Pryce (1988) 53 NTR 1, approved.
Cooper v O’Brien (1992) 111 FLR 55, approved.
Miles v R [2001] NTCA 9, followed.
Gronow v Gronow (1979) 144 CLR 513, followed.
REPRESENTATION:
Counsel:
Appellant:R D T Woodroffe
Respondent:  R Noble
Solicitors:
Appellant:NAALAS
Respondent:  DPP
Judgment category classification:      C
Judgment ID Number:  mar0134
Number of pages:  8

Mar0134
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bush v Nayda [2001] NTSC 97
No. JA 35 of 2001 (20104506)

BETWEEN:
JOHN ROBINSON BUSH

Appellant
AND:
WAYNE KENNETH NAYDA

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 7 November 2001)

These are reasons for the order dismissing the appeal against sentence on 26 September 2001. Absent identification of specific error, appeals against sentence may be brought upon the ground that the sentence is manifestly excessive, that is, it is so manifestly wrong that it could only be the result of some unidentifiable and undisclosed error in the exercise of judicial discretion. It is not unusual, however, for the sentencing tribunal’s remarks to be examined with a view to ascertaining indications of where an error may have occurred. Sometimes the grounds of appeal allege identifiable error and also claim that the sentence was manifestly excessive.

The undisclosed error in a sentence for a common offence may best be demonstrated by meaningful statistics identifying the range currently considered the norm for its punishment (per Kearney J, Mason v Pryce (1988) 53 NTR 1). Without the benefit of reliable, and may I add relevant, statistics, the appellate tribunal must take into account and give due credit for the knowledge and experience of the sentencer and the tribunal of which he or she is a member.
In Cooper v O’Brien (1992) 111 FLR 55 at 57, Angel J cited with approval the words of Chief Justice King in R v Morse (1979) 23 SASR 98 at 99:
“This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”
In Miles v R [2001] NTCA 9 the Court of Criminal Appeal said:
“The sentence must be clearly and obviously, and not just arguably, excessive. It must be so disproportionate to the sentence required as to indicate error. It is not enough that this Court would have imposed a lesser or different sentence.”
Phrases such as “not permitting of much argument” and “leaping off the page” or the like are employed as means of demonstrating the ambit of what falls within the description.
Judicial officers may take various views as to the significance to be given to the factors to be taken into account in formulating a sentence in a particular case, but such differences of opinion are irrelevant unless the sentence imposed is seen to be excessive.
“While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge” per Stephen J Gronow v Gronow (1979) 144 CLR 513 at 519.
To decide the issue, however, it is necessary that the appellate tribunal review the whole of the circumstances of the offence and of the offender.
This case involved not only punishment for the instant offence, but as well the resultant breach of a suspended sentence and failure to make restitution as ordered.
On 17 August 2000 the appellant was convicted and sentenced for criminal conduct by way of unlawful entry into a building, causing damage and stealing on five separate incidents; there was as well a charge relating to the unlawful use of a motor vehicle. He was sentenced to a total of six months imprisonment, suspended after serving 14 days (the mandatory minimum) with an operational period of 18 months. He was also ordered to make restitution of $6,359.60 and in default of payment ordered to be imprisoned for two months. He committed the present offences well within the operational period and had not paid any restitution. The leniency extended to him was abused by his engaging in similar misconduct.
The present matters involved an ongoing enterprise, with others, involving damage to a fence, unlawful entry into a building, the stealing of a metal safe and keys valued at $1,300 and then unlawfully damaging the safe.
The admitted facts are that on the 23 March 2001 the appellant and the others went to the workshop area at Ngukurr, one of the co-offenders cut a hole in the front fence, the appellant and the others climbed through the fence and then into the workshop by removing louvre windows. They unscrewed a plastic window to enter the office, and when there picked up a metal safe sitting on the floor. It contain 203 keys which were all for public buildings and vehicles at the Ngukurr community. The safe was carried out of the building through the fence into an area of bush nearby. The appellant and co-offenders then wedged open the safe using a crow bar which had been brought for the purpose. A metal container was taken from the safe which was full of keys, the co-offenders took some of those keys and the appellant and co-offenders poured petrol from the container they had been carrying with them into the safe which still contained about 20 keys. They set fire to the safe which caused it to be damaged and burnt beyond repair. The safe and burnt keys were later recovered. The appellant walked to his home with all of the remaining keys. The conduct was planned and when the objective failed property was wantonly damaged. The keys were no doubt very useful in the community and their loss would have caused a great deal of inconvenience if they were not recovered.
On 26 March the police executed a search warrant and recovered the keys, most of which were in the appellant’s bedroom, and he was then conveyed to the Ngukurr Police Station where he participated in an interview. When asked about the incident, he made full admissions to having committed the offence saying that he was intoxicated at the time because he had been smoking cannabis and that when he was looking through the safe he was looking for money. The admitted facts also assert that he and the co-offenders had been sniffing petrol prior to the commission of the offences.
It was put on appeal that the appellant engaged in the enterprise for the purpose of stealing money to buy cannabis. There was no money, but he nevertheless damaged the safe beyond repair after opening it and stole the contents.
Each of the damage offences carries a maximum penalty of two years imprisonment, the unlawful entry with intent to steal, seven years, and the stealing, seven years. Importantly, he stood to be sentenced to a minimum of three months imprisonment under the mandatory regime.
Before the Court of Summary Jurisdiction, counsel for the appellant informed the Court of Summary Jurisdiction that his client was aged 18 at the time of the offence, a resident of Ngukurr, his mother had died when he was aged nine and he had moved through a number of communities. He had had limited education and had abused alcohol, been smoking cannabis and sniffing petrol for some time. Given that personal background his Worship ordered an updated pre-sentence report, one having been obtained on the previous occasion. It was revealed that the appellant was sorry for what he had done, embarrassed and ashamed and indicated his willingness to undergo a rehabilitation programme relating to petrol sniffing known as the “Fish Farm Project”. A psychiatrist ventured the opinion that the appellant’s drug abuse was part of his coping mechanism for not progressing in his search for identity given his frequent movements between families. He had also been assessed as suitable to enter the 12 week residential alcohol rehabilitation programme conducted by FORWAARD.
On 24 May 2001 the learned Magistrate:
1.restored one month of the suspended sentence;
2.ordered that the appellant be imprisoned for the two months for failure to pay in accordance with the restitution order;
(The terms in 1 and 2 to be served concurrently and to commence on 26 March 2001, the date upon which the appellant was taken into custody for the present offences.)
3.imposed a sentence of 13 months imprisonment for the offending to be served cumulatively on the two months, a total of 15 months;
4.ordered the sentence be suspended on 31 August, that is, after the expiry of three months and six days;
5.fixed an operational period of two years from 24 May 2001, and
6.conditioned the order suspending sentence upon:
(a)the appellant being under supervision of the Director and to obey his reasonable directions,
(b)entering into the FORWAARD rehabilitation programme as soon as practicable after his release from prison and to complete it; and
(c)thereafter returning to Ngukurr to participate in the petrol sniffing programme and complete it.
The nub of the complaint relates to the sentence of 13 months, it being put that his Worship must have under valued the mitigating factors such as the appellant’s age, immaturity and positive prospects for rehabilitation.
For the respondent, it was argued that his Worship’s remarks show he took into account all relevant matters including appropriate sentencing principles and suspended the sentence to operate shortly after the minimum that must be served to further the appellant’s rehabilitation. That his Worship was conscious of the need to impose a properly proportioned punishment is demonstrated by his leniency in relation to the suspended portion of the original sentence which was reactivated. The fact that this offending took place whilst the appellant was serving a suspended sentence aggravated it. With all that I agree.
It seems to me that his Worship struck a balance between reviving the whole or part of the suspended sentence of five months and six days and the sentence to be imposed. However that was done (and I may have structured it differently) I am not convinced that the totality of the overall punishment was manifestly excessive given all the circumstances.
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