Campbell v Burgoyne - [2003] NTSC 49

Campbell v Burgoyne [2003] NTSC 49
PARTIES:CAMPBELL, Christopher Kenneth
v

BURGOYNE, Robert Roland

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 52 of 2002
DELIVERED:  9 May 2003
HEARING DATES:  2 May 2003
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justices appeal – appeal against sentence – failure to exercise discretion to suspend sentence – history of driving offences including exceeding the prescribed concentration of alcohol
Sentencing Act 1995 (NT), s 40
Dinsdale v The Queen (2000) 202 CLR 321, applied.
House v The King (1936) 55 CLR 499 at 505, applied.
William Davey (1980) 2 A Crim R 254 at 262, considered.
Webb v O'Sullivan (1952) SASR 65 at 66, referred to.
REPRESENTATION:
Counsel:
Applicant:A Hopkins
Respondent:  C Roberts
Solicitors:
Applicant:CAALAS
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0320
Number of pages:  7

Mar0320
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Campbell v Burgoyne [2003] NTSC 49
No. JA52 of 2002

BETWEEN:
CHRISTOPHER KENNETH CAMPBELL

Applicant
AND:
ROBERT ROLAND BURGOYNE

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 9 May 2003)

Appeal against sentence. The appellant was convicted and sentenced to six weeks imprisonment by the Court of Summary Jurisdiction sitting at Alice Springs on 16 October 2002 for that on that day he had driven a motor vehicle on a public street while having a concentration of alcohol in his blood of 210 milligrams of alcohol per 100 millilitres of blood. He was detected early in the morning when stopped at a random breath testing station. He was also found to have been driving whilst unlicensed and the motor vehicle registration and insurance had expired some months earlier. By way of explanation of his actions at the time he told the police that the vehicle belonged to his uncle and he was the only sober one, there was no one else to drive. They were all drunk.
The fines imposed in respect of the other offences are not in question. The maximum sentence for the offence, the subject of the appeal, is a fine of $2,000 or 12 months imprisonment. The learned sentencing Magistrate was informed that the appellant was an Aboriginal man, in work, married with five children whom he was supporting. He had met up with a number of friends and started drinking with them. One of their number wanted to be driven elsewhere and although the appellant had not been planning to drive he was, as he told police, the most sober of those present. He cooperated with police and it could not be suggested he did not enter a plea at the earliest possible opportunity since he was before the court in under twelve hours from the time he was picked up. He was 31, went to the High School in Alice Springs and had held a number of positions in employment.
What told against the appellant was his record of convictions for similar offences. In 1993 when the blood alcohol reading was .236 percent, 1996 when the reading was .128 percent and in 2000 the reading was .223 percent. On each of those prior occasions he was convicted and fined. He had never been sentenced to a term of imprisonment and his counsel before her Worship suggested a sentence which would avoid that consequence.
Proceeding immediately to sentence the appellant, her Worship said that given that this was his fourth offence she considered a period of imprisonment should be imposed. She remarked it was a high reading, not just a matter of going a little bit over the limit and it was only two years since he was last in trouble. Her Worship then ordered a sentence to imprisonment for six weeks and as to suspension of it, simply said that it would not be appropriate, "given the level of the reading". Had it not been for the guilty plea her Worship indicated that he would have been sentenced to two months imprisonment.
The only ground urged upon the hearing of the appeal was that her Worship erred in failing to exercise the discretion to suspend the sentence in whole or in part.
The power to suspend a sentence of imprisonment is contained in s 40 of the Sentencing Act 1995 (NT). It is not an absolute power in that before making such an order the court must be satisfied "that it is desirable to do so in the circumstances". I take that to be desirable in the sense of fulfilling one or more of the purposes for which a sentence may be imposed as contained in s 5 of the Act. It is plain that, although her Worship expressly said that she did not intend to suspend the sentence because of the high reading on this particular occasion, the three previous convictions weighed heavily on her mind.
The argument upon appeal on behalf of the appellant is that the application of sentencing principles should have led her Worship to wholly suspend the sentence as a means of educating the appellant that if he did not remedy his ways then he would almost certainly go to gaol on the next occasion. The suspending of the sentence was to be demonstrably a step along the way to a term of actual imprisonment if he offended again. She would afford the appellant a reformative inducement.
I do not accept that her Worship overlooked the appellant's personal circumstances when she came to sentencing. She repeated the essence of them in her sentencing remarks and the periods of times which had elapsed since his last conviction and between each of the earlier offending. The learned Magistrate may be taken to have failed to have taken into account all the relevant factors in deciding whether to suspend the sentence or not. Certainly it is a two stage process of determining that a sentence to imprisonment is the appropriate sentence and then moving on to consider whether or not it should be suspended in whole or in part, and her Worship approached her task in that way. The only valid criticism which might be made of her remark lies in her apparent isolation of the high level of drinking on this occasion as a justification for not suspending any part of the sentence. Her Worship was required to consider all of the circumstances of the case (Dinsdale v The Queen (2000) 202 CLR 321).
What was urged upon this Court was that her Worship failed to bring to bear considerations of rehabilitation and reform and protection of the community which could be achieved through the imposition of a sentence less than that of immediate imprisonment. That constituted an error of principle causing the sentencing discretion to miscarry, House v The King (1936) 55 CLR 499 at 505. Reference was made to what fell from Muirhead J in William Davey (1980) 2 A Crim R 254 at 262 that a suspended sentence "is made in the community interest and it is generally designed to prevent reoffending – which a prison sentence, standing alone, seldom does". Reliance was also placed upon the principle of parsimony in Webb v O'Sullivan (1952) SASR 65 at p 66 per Napier CJ.
A suspended sentence carries with it real detrimental consequences for the offender and possible committal to gaol if he or she offends again in that or some other way that is punishable by imprisonment either in the Territory or elsewhere (s 43(1)). That a sentence to imprisonment, suspended or not, goes on to the offender's record may have a significant effect upon his or her future.
Her Worship worked as a Magistrate in the southern part of the Northern Territory for many years. She would be in as good a position as any other to assess the serious consequences of people driving motor vehicles with high blood alcohol levels including death and serious injury. As her Worship observed, this was the appellant's fourth conviction in less than 10 years for such offending. The imposition of fines clearly had no deterrent effect upon him. The serving of a short term of imprisonment may well have that effect and it must also be borne in mind that such punishment in appropriate cases may be of a deterrent effect to others who repeatedly break the law.
Nothing was suggested to her Worship or in this court as to what the offender intended to do to assist his rehabilitation or reform, should he be at liberty during the six weeks. In many cases where offenders have a problem with alcohol the courts are able to take into account steps taken by the offender on his or her own account to either avoid the temptation to drink to excess or to then commit an offence which involves excessive drinking of alcohol. It does not appear from the material presented to her Worship that the appellant had in any way responded affirmatively notwithstanding his prior convictions. There was no suggestion that he drove on this occasion arising from any necessity.
The appellant's record of prior convictions and the other charges brought arising from this offence, indicate he is prone to disobedience of other laws after drinking to excess.
It is not the law that when a person comes before the court as a repeated offender in relation to like offences, where that offending creates potential for danger to other people and their property, and the offender has not been previously sentenced to a term of actual imprisonment, that any sentence to imprisonment that might then be imposed ought to be suspended wholly or in part.
I have considered all of the circumstances of the offence and of the offender and do not consider that the suspension of the sentence would be likely to advance his rehabilitation or reformation as was submitted by counsel on his behalf.
Notwithstanding that I am of the opinion that the submission that her Worship unduly limited her consideration of the factors which would go to the sound exercise of discretion as to whether or not to wholly or partly suspend sentence might be decided in favour of the appellant, the appeal will be dismissed as I consider that no substantial miscarriage of justice has actually occurred, Justices Act (s 177(2)(f)).
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