Cifra v Davis - [2002] NTSC 14

Cifra v Davis [2002] NTSC 14
PARTIES:GUYLA CIFRA
v

STUART AXTELL DAVIS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA72 of 2001 (20108205)
DELIVERED:  15 March 2002
HEARING DATES:  11 March 2002
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:H. Spowart
Respondent:  J. Martin
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0203
Number of pages:  16

ril0203
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cifra v Davis [2002] NTSC 14

No. JA72 of 2001 (20108205)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:
GUYLA CIFRA

Appellant
AND:
STUART AXTELL DAVIS

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 15March 2002)

On 13 November 2001 the appellant was convicted of three offences arising out of events that occurred on 2 June 2001. On that occasion he pleaded guilty to the three offences namely: permitting an unlicensed person to drive a motor vehicle; himself having driven in a manner dangerous to the public; and having unlawfully assaulted Patricia Zammit in circumstances of aggravation. In relation to the offence of permitting an unlicensed person to drive he was fined $500. In relation to the dangerous driving he was sentenced to eight months imprisonment cumulative upon a sentence of one month’s imprisonment for the assault. It was directed that the sentence of imprisonment be suspended after a period of three months and the appellant was disqualified from driving for a period of six months. He now appeals against those sentences alleging that they were manifestly excessive and, further, that the learned sentencing Magistrate erred in taking into account matters which occurred when the appellant was not the driver of the vehicle as constituting part of the facts making out the charge of dangerous driving.

The circumstances of the offending were not in dispute. On 2 June 2001 the appellant drove in his Daihatsu van to Tortilla Flats near Adelaide River. He was accompanied by his 14 year old daughter and 12 year old son. There he met up with a group of people that included Dwayne Webb the son of his former de facto wife, Ms Zammit. The appellant instructed Dwayne Webb to drive the Daihatsu van further down the river. Dwayne was 13 years old and unlicensed to drive. The vehicle departed with Dwayne driving and the appellant as a passenger along with the two other children. A short distance along the dirt road the party stopped for a Toyota Lexcen stationwagon in which were Ms Zammit, Barry Young and Carla Mills. Mr Young was driving the vehicle. After an exchange between the appellant and Ms Mills Mr Young drove the Lexcen away. The appellant instructed Dwayne Webb to turn the Daihatsu van around and follow the Lexcen and endeavour to pass it and stop it. The appellant instructed Dwayne to speed up and when he failed to do so the appellant kicked Dwayne’s foot from the accelerator pedal, placed his own foot on the accelerator pedal and caused the vehicle to speed up behind the Lexcen. It travelled to within one to two metres behind the Lexcen. Dwayne Webb then turned the steering wheel on the Daihatsu and also kicked the appellant’s foot from the accelerator in order to avoid colliding with the Lexcen. At that time the appellant took over the driving of the Daihatsu van. He drove so as to overtake the Lexcen and force the Lexcen to stop. The Lexcen sped up and then slowed down and then sped up again whilst the Daihatsu followed. During the course of those manoeuvres the Daihatsu came alongside the Lexcen only to find a tree in its path. The appellant says he had to choose between going into the river on his left or colliding with the car on his right. He chose the latter. The Daihatsu collided with the left side of the Lexcen and both vehicles collided with a barbwire fence. The Lexcen then sped off in an attempt to get away from the Daihatsu. In the process the driver of the Lexcen lost control of the vehicle and it hit a mound of dirt before stopping. The appellant got out of the Daihatsu and went to where Mr Young was and a fight ensued. Ms Zammit and others attempted to break up the fight and the appellant turned on Ms Zammit and struck her two blows to the left side of her face. Ms Zammit then got into the Lexcen and drove away. The matter was reported to police.
The conduct of the appellant was explained by counsel who appeared on his behalf as arising out of the break down of the relationship between the appellant and Ms Zammit. The appellant apparently wished to continue the relationship and regarded himself as receiving “conflicting messages” from Ms Zammit. He thought that Ms Zammit was “playing games with his emotional state” and he wished to talk to her about this. It is clear that his intention in driving as he did was to force the Lexcen to stop so that he could approach the occupants of the vehicle.
In relation to the assault the appellant claimed that immediately beforehand he had calmed down and had turned towards Ms Zammit with the intention of “hugging” her but others got in the road and “tempers flared again and a punch was thrown”. On the admitted facts that became two punches both of which connected with the face of Ms Zammit.
It was submitted on behalf of the appellant that he lost control because of his emotional state arising out of the break down of his relationship with Ms Zammit.
In sentencing the appellant his Worship characterised the dangerous driving as serious, and concluded that a term of imprisonment had to be imposed. He emphasised the need for “something … to discourage people from persisting in driving, and something has to be done to discourage dangerous driving which results in damage.”. He also expressed the view that something had to be done to discourage assaults of the kind inflicted on Ms Zammit. In the view of his Worship both the dangerous driving and the assault called for a term of imprisonment. His Worship considered whether the appellant should be required to serve the full term of imprisonment that he had imposed and he determined “there should be a suspension after serving 3 months”.
The first complaint of the appellant was that the sentence was manifestly excessive in all the circumstances. In support of that ground of appeal the appellant submitted that the learned Magistrate failed to have proper regard to the mitigating factors put forward by the appellant, he failed to give appropriate weight to the appellant’s lack of prior convictions, his age and current circumstances, and he failed to give appropriate weight to the plea of guilty.
Particular factors that the appellant said were not paid due regard were that the offences were unplanned, unpremeditated and committed in circumstances of emotional stress. Although the offences occurred over a period of time it is true that they were unplanned and unpremeditated. His Worship did not suggest otherwise. His Worship acknowledged that the offences occurred at a time when the appellant was subject to emotional upset. During the course of his sentencing remarks the learned Magistrate observed (and the appellant complains of this observation) that “[t]he cold, hard fact is that a common background for offending is emotion … [t]o my mind, the subjective elements to which [counsel for the appellant] refers amount to little because the cold, hard fact is that many offences, not all, but many offences are committed because people are emotional”. If that observation were considered other than in context it may suggest that the sentencing Magistrate failed to take account of the emotional stress of the appellant when evaluating his moral culpability and determining the appropriate sentence. The emotional stress suffered by the appellant at the time was a relevant consideration: Neal v The Queen (1982) 149 CLR 305 at 324. However the comments must be read in context. His Worship went on to contrast the position of an offender who offends “as a result of an emotional outburst or an emotional upset” with an offender who does not do so. He was contrasting the two positions. Although not clearly expressed the observations quoted above can only have been referring to a comparison between the emotional state experienced by the appellant when he offended and the position of other offenders who also offend whilst in an emotional state. His Worship made it clear that “more leniency” was available to an offender who was suffering emotional stress which caused or contributed to the offending when compared with someone who was not in that position. I do not accept the submissions of the appellant in this regard.
The appellant further complained that the learned sentencing Magistrate failed to pay appropriate regard to the appellant’s lack of relevant prior convictions, his age and his current circumstances. At the time of the offending the appellant was 40 years of age. He had no prior convictions for traffic offences and he had only one conviction for a dishonesty offence which occurred in 1990. He had no prior convictions for offences of violence. It was submitted that these offences were out of character and that a sentence of immediate imprisonment was therefore not appropriate. In the course of his sentencing remarks the learned Magistrate observed that the appellant came before the court as a first offender so far as traffic matters were concerned. He also noted that the appellant “has not been in trouble for assault before”. He acknowledged and took account of the state of emotional upset of the appellant at the time of the offending. He referred to the age of the appellant. There is no reason to suggest that his Worship failed to take these matters into account or to accord them appropriate weight when determining the sentence.
The appellant makes particular complaint that the learned sentencing Magistrate failed to give appropriate weight to the circumstances of the appellant existing at the time of sentencing. It was submitted that the appellant was a widower and sole parent with the care of two children. It was further submitted that there was no person “at least in immediate family” available to care for the children. The court was informed that one of the appellant’s children had committed suicide following the commission of the offences and another had attempted suicide. The appellant submitted that hardship to his children was a relevant sentencing consideration which the learned Magistrate failed to accord due weight: see generally R v Nagas (1995) 5 NTLR 45 at 53-55. The submissions made to his Worship in relation to the family situation of the appellant were quite unhelpful. The circumstances in which the family lived were not described and the reason for the suicide of one child and a possible attempt at suicide by another were not addressed in any helpful way. The nature of the relationship between the appellant and the children was not explored. The family was clearly a family living in what his Worship described as “an environment of distress”. The submissions made to his Worship identified the appellant as being the financial supporter of his two children. The submission did not go on to provide any detail of the living circumstances of the appellant and the children. The importance of the appellant being available to act as a parent to the children was not asserted, nor was that proposition developed at all. It was not suggested that the child who committed suicide did so for any reason related to these offences. At the time of the offending the eldest daughter was in fact living away from home. The circumstances of the son were not described. If there was any special hardship to arise out of the appellant having to serve a period of actual imprisonment his Worship was not informed of that hardship.
Hardship caused to an offender’s children is not normally a circumstance which may be taken into account during the sentencing process. However there are recognised exceptions. For example family hardship may mitigate a sentence where family circumstances mean that the imprisonment of a parent effectively deprives the children of parental care. It is for the offender to produce evidence to the sentencing court that such will be the case. The onus upon the offender is to produce cogent evidence to the sentencing court to establish that his imprisonment would impose exceptional hardship upon his family or that his imprisonment would deprive his children of parental care: Mawson v Nayda (1995) 5 NTLR 56 at 57. That did not occur in this case.
The Plea of Guilty
The appellant complains that the learned Magistrate failed to give appropriate weight to the appellant’s plea of guilty. The matter had been case managed and the plea was entered on the morning the trial was due to commence. It followed negotiations between the prosecution and defence counsel which resulted in the appellant pleading guilty to three charges and other charges being withdrawn. His Worship dealt with the matter in the following way:
“In this matter, I take into account the defendant’s plea of guilty in a small way. It is not a plea of guilty at the outset. Had he indicated that he was pleading guilty to charge 1, 2 and 7 on 14 June 2001 I would have considered the appropriate discount to be 25%. This matter has survived two case management enquiries and I see, looking at the notes on the file, that on no occasion, 25 October or 6 November was it indicated to the Court that charges 1, 2 and 7 were to be admitted or dealt with as pleas of guilty.
It is a plea of guilty on the day of the hearing. It is a plea of guilty on the day of the hearing having survived two case management enquiries. I am of the view that the appropriate discount is 5%.”
By virtue of s 5(2)(j) of the Sentencing Act in sentencing an offender a court shall have regard to whether the offender pleaded guilty and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so. In Cameron v The Queen [2002] HCA 6 the High Court dealt with a similar provision applicable under the Sentencing Act 1995 (WA). In that case Gaudron, Gummow and Callinan JJ explored the rationale for the rule. Their Honours observed (par14):
“Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”
Their Honours went on to consider “when it would first have been reasonable for a plea to be entered” in circumstances where a person was charged with several counts and, after a process of negotiation, the prosecution withdrew a number of the charges and the offender pleaded guilty to one or more of the remaining charges. Reference was made to the judgment of Ipp J in the Court of Criminal Appeal of Western Australia in the matter of Atholwood (1999) 109 A Crim R 465 where his Honour noted that “[d]uring the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person, who recognises his guilt on other counts … to persist in a not guilty plea to all counts”. Ipp J said “it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity”.
In the High Court Gaudron, Gummow and Callinan JJ observed that, “the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice … a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.”
In the same case Kirby J referred with approval to the judgment of Ipp J in Atholwood and went on to say (par75):
“The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.”
In Thomson & Houlton (2000) 115 A Crim R 104 the Court of Criminal Appeal in New South Wales considered the issue as applicable in that state. Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) considered the utilitarian value of a plea and said (at 137-138):
“That utilitarian value will vary from time-to-time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty.
In my opinion, the appropriate range for a discount is from 10 to 25 percent.
The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
In Kelly (2000) 113 A Crim R 263 the Court of Criminal Appeal in this jurisdiction said (270):
“In our opinion it is desirable that a sentencing court should indicate the extent to which, and the manner in which, a plea of guilty has been given any weight as a mitigating factor, but we do not consider that it is possible to lay down any tariff. The weight to be given to the plea will vary according to the circumstances.”
In determining whether a plea has been entered as soon as it became reasonably practicable to do so it is necessary to consider the surrounding circumstances of the matter. The fact that a late plea to less serious offences was negotiated will be relevant. The capacity of the offender to obtain legal advice and provide instructions before determining to enter a guilty plea will also be relevant.
In the present case the appellant was initially charged with seven offences arising out of the events that occurred on 2 June 2001. The most serious of those was an offence against s 154(1) of the Criminal Code. Other offences included allegations of unlawful assault upon other people present at the time including upon a person under the age of 16 years. The charges other than those to which the appellant pleaded guilty on 13 November 2001 were withdrawn. In the circumstances it could not be said that the appellant had the opportunity to plead guilty to those offences at an earlier time. Indeed the history demonstrates that he pleaded guilty to the offences of which he was convicted as soon as he was informed that they were the only offences he would be required to face. His Worship failed to recognise the change in circumstances that occurred on the morning of the trial. He treated the appellant as responsible for the fact that the prosecution maintained the other charges until that time. The discount provided by his Worship was, in my view, an inadequate response to the plea of guilty entered at that time and the reasoning process of his Worship demonstrated error. It will be necessary to allow the appeal in order to rectify this error.
The Dangerous Driving
In relation to the offence of dangerous driving the appellant complains that the learned Magistrate erred in taking into account matters that occurred when the appellant was not the driver of the vehicle as constituting part of the relevant facts. In the course of his sentencing remarks his Worship said:
“I am of the view that the dangerous driving is serious. … The matter is serious. It has to be said that it is serious. The defendant had a 13 year old child in the car. He permitted the child to drive. He told the 13 year old to speed up, to catch the motor vehicle. The child slowed down. The defendant then kicked the child’s foot away from the accelerator and placed his own foot on the accelerator. He interfered with the driving of the motor vehicle and his act of putting his foot on the accelerator was indeed an act of driving, although as I apprehend it, he was not in the driver’s seat.”

It was submitted that the learned Magistrate erred in considering the appellant’s conduct when he placed his foot on the accelerator before he got into the driver’s seat as constituting part of the driving and that he sentenced the appellant on that basis.
“Driving” is not defined within the Traffic Act. However “driver” is defined in s 3(1) as “a person driving, riding or in control of a vehicle”. In my view the appellant assumed control of the vehicle when he kicked the child’s foot away from the accelerator and placed his own foot on the accelerator. He was then effectively in charge of the propulsion of the vehicle. In my opinion his Worship did not err in this regard. In any event that was but one small part of the overall conduct of the driving the appellant undertook on this occasion. The most significant part of the offence was his conduct whilst in the driver’s seat and his Worship made that clear in his remarks on sentencing. I would not interfere with the sentence even if the earlier part of his conduct be removed from consideration. Further I reject the submission that the appellant was punished twice for his act of placing his own foot on the accelerator. This was not an act that was relevant to the charge of permitting an unlicensed person to drive a motor vehicle. It was relevant only to the appellant having driven in a manner dangerous to the public. His Worship did not treat it in any other way.
Manifestly Excessive
The appellant submitted that the sentence imposed by his Worship was manifestly excessive in all the circumstances including the matters discussed above. The principles applicable to an appeal against sentence are well known. The exercise of the sentencing discretion will not be disturbed on appeal unless error in that exercise is shown. There is a presumption that there has been no error. The appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence was insufficient or excessive. It interferes only if it can be shown that the sentencing Magistrate was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Magistrate said in the course of the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. The onus rests upon the appellant to demonstrate that the sentencing discretion of the learned Magistrate was improperly exercised. In order to establish that a sentence was manifestly excessive the appellant may show that the sentence was out of all proportion to any view of the seriousness of the offence which could reasonably be taken: Cranssen v R (1936) 55 CLR 509 at 519-520. The sentence must not just be excessive, it must be manifestly so.
I have dealt with the particular complaints of the appellant. In my view the sentences imposed by his Worship were appropriate to the offending and the offender. Apart from the observations I have made in relation to the discount to be applied to the sentence imposed to reflect the plea of guilty, in resentencing the appellant I see no reason to depart in any significant way from the sentences imposed by his Worship. In my view a discount of 20% was an appropriate discount for the plea of guilty.
In the circumstances the appeal is allowed and the sentences are set aside. I resentence the appellant. On count 1 he will be fined $500 and ordered to pay a victim’s assistance levy of $20, in default, imprisonment for 7 days. He will be allowed no time to pay. In relation to count 2 the starting point as indicated by his Worship is 9 months imprisonment. In relation to count 7 the starting point is 2 months imprisonment to be served cumulatively with that imposed in count 2 giving a total of 11 months imprisonment. I reduce that to 10 months to reflect the totality principle. That should be reduced by 20% to reflect the discount for the plea of guilty, leaving a period of 8 months imprisonment. Therefore in relation to counts 2 and 7 the appellant will be sentenced to 8 months imprisonment. I order that the sentence be suspended after he has served a period of 2 months imprisonment and I specify, pursuant to s 40(6) of the Sentencing Act, a period of 15 months from the date of commencement of the sentence during which the offender is not to commit another offence punishable by imprisonment if the offender is to avoid being dealt with under s 43 of that Act. The appellant is disqualified from driving for a period of six months.

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