Choolum v Heath - [2017] NTSC 41

Choolum v Heath [2017] NTSC 41
PARTIES:CHOOLUM, Andrew
v

HEATH, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:21608009; 21636931
DELIVERED:  5 June 2017
HEARING DATES:  25 May 2017
JUDGMENT OF:  HILEY J
APPEAL FROM:  JUDGE BIRCH
CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – Appeal against restoration of earlier sentence for similar offending - Road traffic offences – Driving while unlicensed – sentence of imprisonment not manifestly excessive – appeals dismissed.
CRIMINAL LAW – Application for extension of time to appeal against sentence – application dismissed.
Sentencing Act 1995 (NT)
Traffic Act 1987 (NT)
Local Court (Criminal Procedure) Act 2016 (NT)

Clair v Brough (1985) 37 NTR 11, Club v Westphal [2010] NTSC 66, Cranssen v R (1936) 55 CLR 509, Lo Castro v The Queen (No 2) [2013] NTCCA 15, Salmon v Chute (1994) 94 NTR 1, The Queen v Davis [2003] VSCA 173, referred to.
Marshall v Court [2013] NTSC 75, R v Green (1989) 95 FLR 301, applied.
REPRESENTATION:
Counsel:
Appellant:S Karpeles
Respondent:  C Voumard
Judgment category classification:    B
Judgment ID Number:  Hil1706
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Choolum v Heath [2017] NTSC 41

No. 21608009; 21636931
BETWEEN:

ANDREW CHOOLUM

Appellant

AND:

ANDREW HEATH

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 5 June 2017)
Introduction
Offending on 11 February 2016

On 22 March 2016 the appellant was convicted of driving a motor vehicle on a public street in Alice Springs on 11 February 2016 whilst not been the holder of a license to do so. This was an offence under s 32(1)(a)(i) of the Traffic Act 1987 (NT) (the Act) punishable by a fine of up to 20 penalty units or imprisonment for up to 12 months.[1] He was sentenced to two months imprisonment. The sentence was fully suspended on condition that he not commit another offence punishable by imprisonment within the operational period of 12 months that was set. He signed a document acknowledging that condition. There is no suggestion that he did not understand that condition, and in particular that he should not drive a motor vehicle unless he held a licence.
At the time of the offending he had an extensive history of driving offences which included eight prior offences of unlicensed driving (presumably under s 32 of the Act), 13 prior offences of driving whilst disqualified (presumably under s 31 of the Act) and numerous other driving related offences, including driving unregistered and uninsured motor vehicles, driving while under the influence of alcohol and driving in a dangerous manner. In particular he was convicted on 17 November 2015 for driving unlicensed, driving an unregistered motor vehicle and driving an uninsured motor vehicle on 6 October 2015 and was fined an aggregate of $1600 and ordered to pay a victims levy of $450. Further, some three months before that, on 11 August 2015 he was convicted of the same three offences, committed on 20 June 2015, and was fined an aggregate of $300, also with a victims levy of $450.
Clearly there was a need for the sentence imposed on 22 March 2016 to attempt to deter the appellant from continuing to drive without a licence, and of course to send a strong message to others that such conduct is unacceptable. Unfortunately the penalties imposed previously, in particular during the six months preceding the current offending, did not deter the appellant from driving again. When he was asked by police why he was driving on this particular occasion he said: “We went to visitors’ park - drop this one lady”, and when asked if there was an emergency reason for driving he said: “Nuh, just going back to hostel”.
By Notice of Appeal filed 21 December 2016 the appellant contends that the sentence of two months imprisonment (fully suspended with an operational period of 12 months) was manifestly excessive. Because the Notice of Appeal was filed some eight months outside the 28 day period fixed by s 171 of the Local Court (Criminal Procedure) Act 2016 (NT), the appellant needs an extension of time pursuant to the provisions of s 165 of that Act.
Offending on 9 August 2016
On 9 August 2016 the appellant was again caught driving a motor vehicle in Alice Springs whilst not being the holder of a license. He was also driving a motor vehicle that was unregistered and uninsured, and had at least one passenger, a 24-year-old woman, who was not wearing a seatbelt. Later that day he pleaded guilty to four offences arising out of that conduct. The Court restored the two months sentence that had been imposed and suspended on 22 March 2016 and ordered that it commence on 9 August 2016. In relation to the offence of driving without a licence the Court sentenced the appellant to five months imprisonment, also to commence on 9 August 2016.
By Notice of Appeal filed 22 August 2016 the appellant appeals against the five months sentence imposed for the 9 August offending, and the restoration of the two months sentence regarding the February offending. The appellant contends that each of those dispositions was manifestly excessive. The appellant also contends that the learned judge erred when imposing the five months sentence by not considering other sentencing options alternative to a term of immediate imprisonment.
Extension of time to appeal
Counsel for the appellant read three affidavits; one from the appellant, one from Mr Goldflam of NTLAC (the appellant’s current lawyers) and one from Ms Collins of CAALAS (the appellant’s lawyers when the matters were heard and decided by the Local Court). In short they indicate, and I accept, that the appellant did not become aware that he had a right of appeal until after 22 August when he was advised to appeal against the sentence of five months that was handed down that day. Further delay occurred as a result of CAALAS handing the matters over to NTLAC, and then because of some difficulties contacting the appellant.
The respondent submitted that the application for an extension of time should be refused, partly because the Court should not form the opinion referred to in s 165 of the Local Court (Criminal Procedure) Act 2016 (NT), namely that “the appellant has done whatever is reasonably practicable to comply with [that] Act”, and partly because the appeal had little or no merit in any event.
As the Court of Criminal Appeal pointed out in Lo Castro v The Queen[2] Asche CJ considered a number of decided cases concerning applications for extensions of time in R v Green[3] and concluded with this statement:
Public policy balances the right of the applicant to appeal with the requirement that that right be exercised within a fixed time. That time may be extended in exceptional circumstances. In deciding whether the circumstances are exceptional the court will take into account the likelihood of an appeal succeeding. But the longer the delay the more exceptional the circumstances must be and the clearer it must become that an appeal would succeed. Where there has been extreme delay the point may be reached where only a manifest miscarriage of justice will justify the extension of time.
Consideration
The principles relating to appeals on sentence are well established and include the following:
(a)The learned Judge’s sentencing discretion is not to be disturbed on appeal, unless error in the exercise can be shown. The presumption is that there is no error;[4] and
(b)The onus is upon the appellant to show that the sentencing discretion of the learned Judge was improperly exercised.[5]
The submissions on behalf of the appellant focused upon the fact that a sentence of imprisonment is rarely imposed for the offence of unlicensed driving even for offenders who have numerous similar convictions.
Counsel for the appellant referred to the decision of Blokland J in Club v Westphal[6] where her Honour upheld an appeal against a sentence of 14 days imprisonment that had been imposed for driving unlicensed, on the basis that it was manifestly excessive. This was so notwithstanding that the appellant had five prior convictions for driving unlicensed. During the hearing of that appeal the Court was provided with a comprehensive schedule of penalties that had been imposed on persons for the offence of driving unlicensed in Alice Springs over a period of about six months in 2010. In all instances the penalty imposed was a fine, save for when no penalty was imposed.
That case can be readily distinguished from the present matter. Apart from the fact that the respondent conceded at the outset that the sentence was manifestly excessive, the appellant only had five previous convictions for drive unlicensed, the last of which was for offending that occurred some four years earlier.
As I have noted, the appellant in the present matter had an extremely lengthy history of driving offences, which included 21 occasions of driving unlicensed or driving whilst disqualified, and had been convicted and sentenced for similar offending on two occasions within the preceding six months of the current offending.
In Marshall v Court[7] Mildren J was also provided with a schedule referring to 98 sentences concerning unlicensed driving, none of which involved imprisonment. At [15] his Honour said:
The material establishes that the tariff for this offence is a fine ranging between $100 and $500, with a significantly higher fine if there is an aggregate sentence for other driving offences.
At [17] he said:
Where there is an established sentencing tariff, that is, a normal range of sentences for a particular offence, sentences imposed by different magistrates should fall within the range, unless the circumstances of the offence or of the offender are exceptional.[8]
In that case his Honour found that there were two reasons why the circumstances of the case, so far as the driving unlicensed offence was concerned, were exceptional. First, the appellant was on a suspended sentence for similar offending when the offence was committed. Secondly the appellant’s persistent repeat offending showed a contumelious disregard for the law.[9] In those circumstances his Honour imposed a sentence of 28 days imprisonment. His Honour said that he was not confident that the appellant had entirely learnt his lesson and that a sentence of imprisonment will act as a personal deterrent and as a deterrent to those who contumeliously disobey the law.[10] His Honour also considered that the Magistrate was right to restore the whole of the previous sentence that had been suspended, the further offending having occurred a bit more than three months into the 12 month period of the suspended sentence.[11]
Counsel for the respondent provided the Court with a schedule extracted from the Integrated Justice Information System (IJIS) which suggests that in the six-month period from 22 March 2016 about 60 of approximately 1800 unlicensed driving offences dealt with by the Local Court throughout the Northern Territory involved the imposition of a term of imprisonment. Whilst a number of those sentences of imprisonment were aggregate sentences that also included other offences, some of them related only to the single offence of unlicensed driving.
Notwithstanding that sentences of imprisonment for unlicensed driving appear to be relatively few in number, it can no longer be said, at least since Mildren J’s decision in Marshall v Court in 2013, that imprisonment should not be imposed in appropriate circumstances.
Moreover the legislature clearly contemplated that there will be cases where the appropriate sentence is imprisonment for anything up to 12 months.
In the circumstances that I have already noted, in particular the appellant’s two relatively recent convictions for similar offending, it is clear that the imposition of a fine, even the fine as high as $1600 plus victims levy of $450, did not deter the appellant from driving unlicensed again, firstly on 11 February and again on 9 August 2016. The imposition of yet another fine without more would not have served any purpose, either in the nature of specific deterrence or general deterrence, and would not have assisted his rehabilitation.
Counsel for the appellant submitted that a home detention order would have been an appropriate alternative. However, even if such an order had been requested and the appellant deemed suitable for such an order, like a suspended sentence, such an order could only be imposed in the context of a sentence of imprisonment.[12] Counsel for the appellant conceded that a community work order would not have been appropriate, having regard to the appellant’s poor health. There was no realistic or appropriate alternative than imprisonment.
Counsel submitted that the sentences of imprisonment of two months and five months were plainly unjust, when one takes into account the maximum penalties, the appellant’s early pleas and cooperation with police, the appellant’s health issues, his reasons for committing the offences, and, in the case of the later sentence, the appellant’s expressed desire to do a driving course and obtain a driver’s licence.
I disagree with that submission. The appellant’s reasons for driving - on 11 February so that he “could drop that old lady off” – and on 9 August, so that he could drop off a lady and get some medication for himself - go nowhere near justifying him driving unlicensed on either of those occasions. Nor was there anything about his health that meant that imprisonment was not appropriate.
At the hearing on 9 August counsel told the Court that the appellant, then aged 45, had substantial health issues. He takes medication for his heart and medication for a renal condition. He receives regular renal dialysis treatment, which necessitated him moving from where he had been living at Ti Tree to Alice Springs. Counsel asked the Court to consider not fully restoring the appellant’s suspended sentence to allow him to attend to his medical needs and to undertake further steps towards obtaining a drivers licence. Judge Birch took these matters into account and concluded, and I agree, that there is nothing in Mr Choolum’s personal background that indicated that it would be unjust to restore the suspended sentence.
In my opinion the circumstances of the offender, particularly his similar and recent driving offending, meant that a sentence of imprisonment for his offending on 11 February 2016 was the appropriate sentence. Further, I consider that the fact that he had carried a passenger, namely the lady that he dropped off, also increased the objective seriousness of that offending. I do not consider that the sentence of two months’ imprisonment was manifestly excessive.
Accordingly I decline to grant the extension of time that has been sought for leave to appeal against that sentence, and dismiss that application.
The offending on 9 August was much more serious for a number of reasons and therefore warranted a more severe sentence. Apart from the fact that the sentence of two months did not deter Mr Choolum from offending again, that further offending occurred in breach of the condition of the suspended sentence, thus demonstrating his continuing contempt for the traffic laws and court orders. Further, he was carrying at least one passenger, unrestrained in the back seat, when he was apprehended by police and he had carried or was still carrying another, namely the old lady who he said he was dropping off somewhere. It is of particular concern when a person who has not held a driver’s licence for a long time, if ever, and who appears to have no regard for important traffic laws designed to ensure that passengers are carried safely in registered and insured motor vehicles, continues to drive a motor vehicle.
In both matters, the circumstances of the offender and the offending were exceptional, and therefore required appropriate sentences of imprisonment.
I agree with the concession made on behalf of the respondent that the sentence of five months imprisonment was severe, but I do not consider that it was manifestly excessive such as to justify appellate intervention.
Nor was it unjust for the two months imprisonment that had been suspended to be restored in full. The subsequent offending that constituted the breach of his suspended sentence was of the same kind but worse than his offending on 11 February.
In any event, the total effective period of imprisonment will only be the five months imposed in relation to the 9 August offending, because the two months imprisonment restored was to commence the same time as that five months.
Accordingly I dismiss the appeal in relation to the sentences imposed on 9 August 2016.

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[1] Traffic Act 1987 (NT) s 52.

[2] [2013] NTCCA 15 at [8]. See too The Queen v Davis [2003] VSCA 173 at [5] – [6].

[3] (1989) 95 FLR 301 at 304.

[4] Salmon v Chute (1994) 94 NTR 1 at 24 (referring to Raggett, Douglas and Miller v R (1990) 50 A Crim 41 at 42).

[5] Cranssen v R (The King) (1936) 55 CLR 509.

[6] [2010] NTSC 66.

[7] [2013] NTSC 75.

[8] Clair v Brough (1985) 37 NTR 11 at [14].

[9] Marshall v Court [2013] NTSC 75at [17].

[10] Ibid at [20].

[11] Ibid at [21].

[12] Sentencing Act 1995 (NT) s 44.