Cumaiyi v Tyson
[2023] NTSC 29
•3 April 2023
CITATION:Cumaiyi v Tyson [2023] NTSC 29
PARTIES:CUMAIYI, Mathew
v
TYSON, Clare
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 25 of 2022 (22233064)
DELIVERED: 3 April 2023
HEARING DATE: 3 April 2023
JUDGMENT OF: Brownhill J
CATCHWORDS:
Coombe v Douris (1987) 47 SASR 324; Dunn v Woodcock [2003] NTSC 24; Edmond v The Queen [2017] NTCCA 9; Eldridge v Bates (1989) 51 SASR 532; Firth v Kruger [2021] NTSC 33; Forrest v The Queen [2017] NTCCA 5; Garling v Firth [2016] NTSC 41; Hales v Garbe [2000] NTSC 49; Johnston v Wilkinson (1983) 11 A Crim R 140; Perkins v Heath [2017] NTSC 74; Phan v Western Australia [2014] WASCA 144; Pryce v Foster (1986) 38 NTR 23; Sambono v Pettit [2010] NTSC 4; Smith v Torney (1984) 29 NTR 31; The Queen v S W Bugmy [2004] NSWCCA 258, referred to.
Australian Road Rules r 266
Local Court (Criminal Procedure) Act (NT) s 163
Police Administration Act 1978 (NT) s 158
Sentencing Act 1995 (NT) ss 5, 40
Traffic Act 1987 (NT) ss 24, 31
REPRESENTATION:
Counsel:
Appellant:J Henderson
Respondent: L Williamson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Bro2304
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINCumaiyi v Tyson [2023] NTSC 29
No. LCA 25 of 2022 (22233064)
BETWEEN:
MATHEW CUMAIYI
Appellant
AND:
CLARE TYSON
Respondent
CORAM: BROWNHILL J
EX TEMPORE REASONS FOR DECISION
(Delivered 3 April 2023)
The issue in this appeal is whether the sentence imposed by the Local Court was manifestly excessive, or infected by specific error, by the inclusion of conditions prohibiting the appellant from possessing or consuming alcohol and requiring him to submit to alcohol testing for a period of 12 months for offences including driving whilst disqualified and driving with alcohol in the breath whilst unlicensed.
On 6 December 2022, in the Local Court, the appellant pleaded guilty to the following charges:
(a)driving whilst disqualified contrary to s 31(1) of the Traffic Act 1987 (NT) (‘Traffic Act’), which has a maximum penalty of 12 months’ imprisonment;
(b)driving with alcohol in the breath whilst unlicensed contrary to s 24(1)(d) and (2) of the Traffic Act, which has a maximum penalty of 6 months’ imprisonment or a fine;
(c)driving with an unrestrained child contrary to rule 266(1) of the Australian Road Rules, which has a maximum penalty of 6 months’ imprisonment or a fine; and
(d)resisting arrest contrary to s 158 of the Police Administration Act 1978 (NT), which has a maximum penalty of 6 months’ imprisonment or a fine.
The appellant was sentenced to a fine of $350 for the third count and an aggregate sentence of imprisonment on the other counts of imprisonment for five months, backdated by one day (to reflect time in custody on arrest) and suspended immediately with an operational period of 12 months and the conditions that the appellant:
(a)must not commit another offence punishable by imprisonment;
(b)must not drive a motor vehicle for 12 months;
(c)must not possess or consume alcohol (for 12 months); and
(d)must (for 12 months) submit to alcohol testing on request from the NT Police.
Pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT), the appellant has appealed against the sentence on the grounds that it is manifestly excessive or that it involves specific error by reason of the sentencing Judge’s consideration of specific deterrence.
The facts agreed on the plea were that the appellant was disqualified from obtaining a driver’s licence when he drove a car on a public street with two adults and four unrestrained children aged 8 to 11 years in the back. He was pulled over for a random breath test and returned a positive reading. Police checks revealed he was disqualified from driving. He was informed he was under arrest. He got out of the car and when Police took hold of his arm to escort him to the Police vehicle, he pulled back and tried to push past them to flee. He was restrained with handcuffs and escorted to the Police car. Breath testing at the Police Station recorded the result of 0.023 grams of alcohol in 210 litres of breath.
The appellant was 41 years old at the time of sentencing. He had a prior criminal record for driving offences comprising seven instances of driving without a licence or whilst disqualified, across the period from May 2000 to October 2019, one instance of driving with a high range blood alcohol content from October 2019, two instances of driving with a medium range blood alcohol content from June 2018 and March 2019, and nine other driving offences from May 2005 to March 2019. For the October 2019 offending, he received a wholly suspended sentence of three months’ imprisonment, and was disqualified from driving for five years.
The principles applicable to an appeal against sentence on the ground of manifest excess are clear and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]) and Edmond v The Queen [2017] NTCCA 9 (at [4]). Those principles are:
(a)The sentence is not to be disturbed on appeal unless error is shown.
(b)The presumption is that there is no error.
(c)Appellate intervention is not justified simply because the sentence is markedly different from other sentences imposed in other cases.
(d)Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
(e)Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.
(f)It must be shown that the sentence was clearly, not just arguably, excessive.
(g)There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.
Matters to be considered in such an appeal are the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[1]
The appellant argued that the sentence was manifestly excessive because the two conditions on the suspended sentence regarding alcohol: (a) did not reasonably relate to the character of the offending or the sentencing purposes of punishment, deterrence and rehabilitation; or (b) were otherwise unduly harsh, unreasonable or needlessly onerous.
The power to impose conditions upon a suspended sentence is contained in s 40(2) of the Sentencing Act 1995 (NT) (‘Sentencing Act’). It is a power to impose such conditions as the Court thinks fit. The power is broad, but not unlimited and may only be imposed for one or more of the legitimate purposes for which sentences may be imposed as set out in s 5(1) of the Sentencing Act.[2] Conditions must reasonably relate to either the character of the particular crime committed or the purposes of punishment for that crime, including deterrence and rehabilitation.[3] There must be some nexus between the particular offending, including what may have caused the offender to engage in that offending, and the particular condition imposed.[4] The conditions should not in their operation be unduly harsh, unreasonable or needlessly onerous.[5]
The appellant argued that alcohol was of no more than marginal importance given that the breath analysis result was 0.023 grams of alcohol per 210 litres of breath (which the sentencing Judge accepted was a very low reading), there was no evidence that his driving abilities or decision-making capacity was impaired when he drove, and it was submitted on his behalf that he thought he was completely sober. The appellant argued that neither the offending nor his criminal history established that alcohol was an ongoing criminogenic concern.
The offending was objectively serious in that the appellant drove whilst disqualified, had no good reason for driving, and was aware he was prohibited from driving. He had 0.023 grams of alcohol in his blood when he drove (where any level of alcohol is sufficient to engage the offence[6]), and drove with a number of passengers in the car, including four unrestrained children. He resisted his arrest when apprehended. This was not low level offending of this kind.
The offence of driving whilst disqualified will ordinarily attract a term of imprisonment in the absence of exceptional circumstances.[7] A term of imprisonment is usually warranted in order to maintain the effectiveness of disqualification orders and deter non-compliance with them for the protection of the community.[8] The degree of defiance with a disqualification order is an important factor influencing penalty.[9]
The Courts routinely restrict the consumption of alcohol as a condition of sentence where alcohol has been a substantial contributing factor or the offending has occurred against a background of considerable alcoholism.[10]
Where having alcohol in the blood is an element of one of the charges to which the appellant pleaded guilty and an aggravating feature of the others, and one of the conditions prohibits the consumption of alcohol and the other is directed to ensuring compliance with that prohibition, there is patently a nexus between the conditions and the particular offending.
Where the appellant has a number of prior convictions for drink driving, specific deterrence is an important sentencing consideration. The appellant consumed alcohol before driving. If he was unaware that he had alcohol in his blood when he drove, as he submitted, that does not reduce the need for specific deterrence directed at alcohol consumption and driving. Specific deterrence remains important to ensure that he gives proper consideration, and errs on the side of caution, before driving after consuming alcohol in the future. All the more so where the appellant has a prior conviction for driving whilst disqualified, committed in the relatively recent past, and numerous convictions for driving unlicensed, which indicates some degree of defiance for the necessity to be licensed to drive and for disqualification orders.
That defiance also indicates that the need to protect the community from the appellant’s conduct in the future is an important sentencing consideration. He has demonstrated that disqualification does not deter him from driving, or from driving with alcohol in his blood. The alcohol conditions can be seen as being directed to ensuring that he does not drive with alcohol in his blood and place the community at risk by doing so in the future.
These matters demonstrate a reasonable nexus between the alcohol conditions, on the one hand, and the particular offending and the offender, on the other.
The appellant also argued that the conditions were unduly harsh and tantamount to additional punishment, given the intrusions into his private life, in the context of what might otherwise be seen as an excessive sentence.
It is well recognised that the suspension of a custodial sentence evidences considerable leniency to an offender and suspension is usually ordered as a positive means of facilitating rehabilitation.[11] Notwithstanding that a sentence involving custody is the usual disposition for driving whilst disqualified, the appellant’s five month sentence of imprisonment was wholly suspended (save the day of his arrest). It is difficult to see that as an excessive sentence in all the circumstances of the case.
The appellant’s counsel did not submit to the sentencing Judge against the imposition of alcohol prohibition conditions, despite being warned that they were being considered. Nothing was put to the sentencing Judge or this Court that the alcohol conditions would be especially onerous or difficult for the appellant.
For the reasons already stated regarding the nexus between the alcohol conditions and the offending by the appellant, the imposition of the alcohol conditions per se was not unduly harsh, unreasonable or needlessly onerous. Even if the period of operation of the conditions (being 12 months) might be seen to be on the long side, it has not been demonstrated by the appellant to be plainly outside the range of appropriate sentencing dispositions.
As regards the assertion of specific error, the appellant submitted that the sentencing Judge had solely addressed specific deterrence through these conditions and had not addressed other sentencing factors, such as rehabilitation or community protection. I do not accept that her Honour’s sentencing remarks should be construed this way. It would be to assume error to assume that her Honour did not consider that the conditions were also directed to the usual sentencing considerations of rehabilitation and community protection, particularly where rehabilitation is ultimately directed to preventing future offending, as is specific deterrence. Both sentencing factors have the same ultimate goal.
The appellant submitted, at least initially, that alcohol conditions cannot be directed to addressing deterrence, and alcohol conditions can only be directed to rehabilitation and community protection. The appellant submitted that only custodial or quasi-custodial conditions can be directed to specific deterrence. No authority was cited for those propositions. In my view, it would be inconsistent with s 40 of the Sentencing Act to suggest that such a principle exists, and so much was accepted ultimately by the appellant.
I construe her Honour’s remarks such that the sentencing Judge held that, in light of the appellant’s prior convictions, specific deterrence was a matter of significant weight in the sentencing exercise.
The appellant argued that specific deterrence should not have featured significantly in the sentencing exercise because the appellant was not aware, at the time of the offending, that he had alcohol in his blood. Even if the submission about his lack of awareness (which was unsupported by evidence at the sentencing hearing) was accepted, for the reasons set out in paragraph [16] above, the sentencing Judge did not err in taking account of, and giving significant weight to, specific deterrence.
Disposition
The appellant’s ground of appeal has not been made out. The appeal is dismissed.
-----------------------------------
[1] Edmond v The Queen [2017] NTCCA 9 at [30] per Grant CJ and Hiley J, citing Phan v Western Australia [2014] WASCA 144 at [19] per Mazza JA (Martin CJ and Buss JA agreeing).
[2] See Garling v Firth [2016] NTSC 41 at [35] per Hiley J; Perkins v Heath [2017] NTSC 74 at [14]-[16] per Kelly J, citing The Queen v S W Bugmy [2004] NSWCCA 258 at [61] per Kirby J (Bryson JA and James J agreeing).
[3] The Queen v S W Bugmy [2004] NSWCCA 258 at [61] per Kirby J (Bryson JA and James J agreeing).
[4] Garling v Firth [2016] NTSC 41 at [35] per Hiley J.
[5]Ibid at [43] per Hiley J. See also Dunn v Woodcock [2003] NTSC 24 at [7] per Mildren J.
[6] Firth v Kruger [2021] NTSC 33 at [6].
[7] See Pryce v Foster (1986) 38 NTR 23 at 28 per Rice J; Eldridge v Bates (1989) 51 SASR 532 at 538 per Bollen J; Hales v Garbe [2000] NTSC 49 at [12] per Martin CJ.
[8] See Eldridge v Bates (1989) 51 SASR 532 at 533 per King CJ, citing Coombe v Douris (1987) 47 SASR 324 at 325; Smith v Torney (1984) 29 NTR 31 at 36 per Murihead J.
[9]Johnston v Wilkinson (1983) 11 A Crim R 140 at 144 per Johnston J.
[10] Sambono v Pettit [2010] NTSC 4 at [42] per Olsson AJ.
[11]Sambono v Pettit [2010] NTSC 4 at [43] per Olsson AJ.
0
2
0