Carcuro v Norris

Case [2007] NTSC 18

Carcuro v Norris [2007] NTSC 18

PARTIES:CARCURO, EZRICK

v

NORRIS, STEVEN PAUL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 57 of 2006 (20625822)

DELIVERED:  16 March 2007

HEARING DATES:  12 March 2007

JUDGMENT OF:  SOUTHWOOD J

CATCHWORDS:

YOUTH JUSTICE ACT – Appeal against sentence for drive while disqualified – youth – sentencing principles – weight to be given to rehabilitation and deterrence – appeal allowed

Traffic Act s 31(1); Youth Justice Act s 4, s 81, s 144

Dinsdale v The Queen (1999) 202 CLR 321; M v Waldron (1988) 56 NTR 1; 90 FLR 355; Nelson v Chute (1994) 72 A Crim R 85; P (a minor) v Hill (1992) 110 FLR 42; Simmonds v Hill (1986) 38 NTR 31; Wood v Samuels (1974) 8 SASR 465; Yovanovic v Pryce (1985) 33 NTR 24 -

applied

Arnold v Trenerry (1997) 118 NTR 1; Police v Cadd (1997) 94 A Crim R 466; Eldridge v Bates (1989) 8 MVR 394; Hales v Garbe [2000] NTSC 49; Oldfield v Chute (1992) 107 FLR 413; Ross v Toohey [2006] NTSC 92; Seears v McNulty (1987) 89 FLR 154; Smith v Torney (1984) 29 NTR 31 - cited

Lynch v Dixon (2004) 148 A Crim R 472; Stanischewski v Trenerry [2001] NTSC 50 - distinguished

REPRESENTATION:

Counsel:

Appellant:J Payten

Respondent:  H Roberts

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Sou0744

Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Carcuro v Norris [2007] NTSC 18

No JA 57 of 2006 (20625822)

IN THE MATTER OF the Youth Justice Act

AND IN THE MATTER OF an appeal against sentence handed down in the Youth Justice Court at Darwin

BETWEEN:

CARCURO, EZRICK

Appellant:

AND:

NORRIS, STEVEN PAUL

Respondent:

CORAM:     SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 17 March 2007)

Introduction

  1. On 5 December 2006 the appellant was convicted and sentenced by the Youth Justice Court for three traffic offences that were committed by the appellant on 11 October 2006. For the charge of driving while disqualified contrary to s 31(1) of the Traffic Act the appellant was sentenced to seven days imprisonment. The sentence of imprisonment was suspended immediately upon the appellant entering a bond, on his own security of $400, to be of good behaviour for a period of twelve months. In addition, the appellant was disqualified from driving for a period of nine months from 5 December 2006. For the offence of driving an unregistered motor vehicle contrary to s 33(1) of the Traffic Act the appellant was fined $150 and ordered to pay a victim’s levy of $20.00. For the offence of driving an uninsured motor vehicle contrary to s 34(1) of the Traffic Act the appellant was fined $1000 and ordered to pay a victim’s levy of $20.00.

  2. Under…

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AGLC
Carcuro v Norris [2007] NTSC 18
Case
[2007] NTSC 18
Decision Date

CaseChat Overview and Summary

In the case of Carcuro v Norris, the appellant appealed against the sentence of imprisonment imposed by the Youth Justice Court for the offence of driving while disqualified. The appellant was found to have driven his vehicle on the Victoria Highway in Katherine while disqualified from driving. The Youth Justice Court sentenced the appellant to a term of seven days imprisonment, which the appellant considered manifestly excessive. The primary issues for the court were whether the sentence was excessive and whether the sentencing magistrate had appropriately considered the principles of rehabilitation and deterrence. The court found that the sentence was indeed excessive and that the magistrate had not given sufficient consideration to the principles of rehabilitation and deterrence, particularly given the appellant's age, the lack of prior convictions, and the circumstances of the offence. The court noted that the appellant had been under peer pressure and had taken steps to reduce his alcohol consumption since his previous conviction.

The reasoning of the court was grounded in the principles of sentencing for youth offenders as outlined in the Youth Justice Act and supported by relevant case law. The court held that imprisonment should be a last resort for youth offenders, and that the magistrate had failed to adequately consider alternative sentencing options. The court emphasised that the circumstances of the offence did not indicate a complete disregard for the law, and that the appellant's culpability was mitigated by his age and the peer pressure he experienced. The court concluded that a suspended sentence or other non-custodial penalty would have been more appropriate given the appellant's age and the mitigating factors present in the case.

The court set aside the original sentence and ordered that the appellant be re-sentenced. The court also confirmed the appellant's conviction for the offence of driving while disqualified. The appellant's disqualification from driving remained in force, and the court invited further submissions from the parties regarding the appropriate sentence and costs.

Orders

Orders of the court

The appeal against sentence must succeed. I make the following orders: 1. The appellant's appeal against sentence for the offence of driving while disqualified on 11 October 2006 contrary to s 31(1) of the Traffic Act is allowed.

2. The sentence of a term of seven days imprisonment that was imposed on the appellant by the Youth Justice Court on 5 December 2006 for the offence of driving while disqualified on 11 October 2006 contrary to s 31(1) of the Traffic Act is set aside.

3. The appellant's conviction by the Youth Justice Court on 5 December 2006 for the offence of driving while disqualified on 11 October 2006 contrary to s 31(1) of the Traffic Act is confirmed.

4. For the time being the appellant's disqualification from driving remains in force.

The appellant is to be re-sentenced. Before re-sentencing the appellant I will hear the parties further. I will also hear the parties as to costs.

Background

Background to the litigation

Under s 144 of the Youth Justice Act, the appellant appeals against the sentence of imprisonment that was passed by the Youth Justice Court for the offence of driving while disqualified on 11 October 2006. The grounds of appeal are:1.The sentence passed by the Youth Justice Court on 5 December 2006 for the offence of driving while disqualified contrary to s 31(1) of the Traffic Act was manifestly excessive.2.The sentencing magistrate failed to have regard to the sentencing principle that imprisonment is an option of last resort.Facts A statement of admitted facts was read by the police prosecutor during the sentencing proceeding in the Youth Justice Court. The admitted facts are as follows. On 11 October 2006 the appellant drove his blue Ford sedan, New South Wales registration XFL 639, west on the Victoria Highway in the town of Katherine. Police officers observed that the Ford sedan had no tail lights. The appellant was stopped and spoken to by police. The appellant was asked if he knew that he had no tail lights, and he said, “Yes, I’ve got the fuses here to change them.” The appellant was also asked if he had a current driver’s licence in the Northern Territory. There was no answer. Further enquiries made by the police officers who stopped the appellant showed that he was disqualified from driving for a period of six months from 20 June 2006 and that the registration of the Ford sedan expired on 24 February 2005. The appellant was formally cautioned and asked the following questions. Why was he driving while being disqualified from doing so? He said, “So I can go fishing and do some work.” When he was asked why he was driving unregistered and uninsured, he said, “I gave you a good enough reason – to go and get some work.” The appellant was later charged and bailed. At the time of the offence the Victoria Highway was a public street open to and used by the public. It was night time and traffic was minimal. Counsel who appeared for the offender in the sentencing proceeding in the Youth Justice Court stated that the circumstances of the appellant’s offending on 11 October 2006 were as follows. The appellant and a number of his friends had travelled from Darwin to Katherine in the Ford sedan. The Ford sedan had been driven to Katherine by Ryan Redgrove. They were following the mango picking season and were looking for work picking mangoes. On the evening of 11 October 2006 the appellant’s friends drunk some beer and they became intoxicated. The appellant did not drink any beer. Since being dealt with by the Youth Justice Court on 20 June 2006 the appellant has greatly reduced his intake of alcohol. After they finished drinking beer his friends decided that they wanted to go fishing and they asked him to drive them to a place where they could fish. Initially the appellant refused to do so. The appellant’s friends then said that if he did not drive them they would drive the Ford sedan themselves. As he believed that there may be a motor vehicle accident if one of his friends drove the appellant relented and he drove.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the respondent submitted that the appellant had not demonstrated that the sentencing magistrate had erred as a matter of proper sentencing principle in the approach that she adopted or on the face of the sentence. The primary considerations of the sentencing magistrate were the sentencing principles enunciated in the decisions of this court in Ross v Toohey [2006] NTSC 92, Lynch v Dixon (2004) 148 A Crim R 472 at par [32] and par [48], Stanischewski v Trenerry [2001] NTSC 50 and Hales v Garbe [2000] NTSC 49 at par [13] and the age of the respondent. The sentencing magistrate imposed a sentence which took into account the appellant’s age and maturity, his recent previous offending, and the seriousness with which courts regard the offence of driving while disqualified, while giving him the benefit of a sentence which allows him to continue to live in his home and community and pursue the training and work opportunities he expressed an interest in pursuing.Conclusion I accept the arguments of the appellant. The sentence imposed on the appellant for the offence of driving while disqualified was obviously excessive and plainly unjust. A sentence to a term of imprisonment was not called for. The sentencing magistrate gave too much weight to the object of deterrence in circumstances where it was not established that such offending was prevalent among youths; the appellant’s driving was not dangerous; his offending by driving while disqualified was not persistent; it was the first such offence committed by the appellant; he had previously complied with other court orders that had been imposed on him; it was not established that the appellant had been warned by the Youth Justice Court when he was sentenced on 20 June 2006 that he was liable to be sentenced to a term of imprisonment if he drove a motor vehicle while he was disqualified from driving; he had successfully completed two thirds of the period of his disqualification from driving a motor vehicle; he had changed his behaviour in that he had significantly reduced his consumption of alcohol since 20 June 2006; he did not drink any alcohol prior to driving on 11 October 2006; he was a youth who was under considerable peer pressure to drive the motor vehicle; the circumstances of the offending did not evince a complete and utter disregard of the order disqualifying the appellant from driving; the appellant’s driving was conditional and the appellant’s culpability was diminished by his age and the peer pressure that he was under at the time of his offending. At no stage did the respondent challenge the explanation given by the appellant for driving while he was disqualified from driving. In the circumstances it could not be said that lesser sentencing options were excluded. The sentencing magistrate failed to give due consideration to other sentencing options. A suspended sentence of imprisonment should not be imposed unless the sentencing judge determines that a sentence of imprisonment, and not some lesser sentence, is called for: Dinsdale v The Queen (1999) 202 CLR 321 at par 79 per Kirby J. As Walters J said in Wood v Samuels (1974) 8 SASR 465 at 468 in an oft quoted passage:Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the Court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case.

Ratio Decidendi

Legal Principle Established

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