Demur v The Queen [2014] NTCCA 15
PARTIES:DEMUR, SAM STEFAN
-v-
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:21326467 (CCA No. 7 of 2014)
DELIVERED: 8 OCTOBER 2014
HEARING DATES: 24 SEPTEMBER 2014
JUDGMENT OF: RILEY CJ, BLOKLAND and HILEY JJ
CATCHWORDS:
APPEAL – CRIMINAL LAW – Application for extension of time – Application for leave to appeal against sentence – Rehearing of refusal to grant leave – Single ground of appeal – Manifestly excessive sentence – Discretionary order – Disqualification of driver’s licence – Punitive and protective elements of sentencing – General deterrence – Youth, prior good character and rehabilitation – Impact upon employment prospects of offender compelling – Application for extension of time allowed – Leave to appeal granted – Appeal allowed – Resentenced – Length of disqualification reduced – Sentencing Act 1995 (NT), s 98.
Sentencing Act 1995 (NT).
Cranssen v The Queen (1936) 55 CLR 509; Director of Public Prosecution v Oates (2007) 47 MVR 483; Liddy v The Queen [2005] NTCCA 4; R v Franklin [2009] VSCA 77; R v Jurisic (1998) 45 NSWLR 209; R v Musumeci (1997) NSWCCA (30 October 1997); R v Tait and Bartley (1979) 24 ALR 473; R v Veatufunga [2007] NSWCCA 54; R v Whyte (2002) 55 NSWLR 252; Rich v Australian Securities and Investment Commission (2004)220 CLR 129, applied.
Baumer v The Queen (1989) 40 A Crim R 74; Baumer v The Queen (1988) 166 CLR 51; Baumer v The Queen (1987) 48 NTR 1; Director of Public Prosecutions v Neethling (2009) 22 VR 466; R v Dang Hai Nguyen [2009] VSCA 64; R v Lefebure [2000] VSCA 79; R v Sean Douglas Lynch SCC 21011383 (20 October 2010); Veen v The Queen (No 2) (1988) 164 CLR 465, referred to.
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent: S Robson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: BLO 1412
Number of pages: 16
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDemur -v- The Queen [2014] NTCCA 15
No. 21326467
BETWEEN:
DEMUR, SAM STEFAN
Appellant
AND:
THE QUEEN
Respondent
CORAM: RILEY CJ, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 8 OCTOBER 2014)
The Court:
Introduction
This is a re-hearing of an application for an extension of time and leave to appeal against a sentence passed on 25 March 2014. A single judge refused the application on 17 June 2014. The re-hearing before this Court is confined to proposed ground three of the appeal:
“That the Learned Sentencing Judge imposed a licence disqualification period that was manifestly excessive”.
Proceedings Before the Supreme Court
On 19 March 2014 the appellant pleaded guilty to the following four counts, arising out of one driving episode on 9 June 2013:
Count…
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- AGLC
- Demur v The Queen [2014] NTCCA 15
- Case
- [2014] NTCCA 15
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the sentencing judge erred in exercising their discretion under section 98 of the Sentencing Act 1995 (NT) by imposing a disqualification period that was manifestly excessive. This required the Court to consider the punitive and protective elements of sentencing, the principle of general deterrence, and the impact of the disqualification on the appellant's prospects of rehabilitation and employment, particularly in light of his youth, prior good character, and early plea of guilty.
The Court acknowledged the wide discretion conferred by section 98 of the Sentencing Act. However, it reasoned that lengthy disqualification periods should generally be reserved for repeat offenders or those with poor rehabilitation prospects. The Court considered the appellant's lack of prior criminal or driving offending history, his age, and his demonstrated responsibility at work, which suggested reasonable prospects of rehabilitation. Drawing on principles from cases such as *Baumer v The Queen*, the Court concluded that the disqualification period should not be so disproportionate to the term of imprisonment as to induce hopelessness, and that the impact on employment prospects was a relevant consideration. The Court found that both the appellant and the community would benefit from the appellant being permitted to drive at a reasonable time after his release.
The Court allowed the application for an extension of time and granted leave to appeal. The appeal was allowed, and the appellant was resentenced. The length of the driver's licence disqualification was reduced.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
His Honour concluded the appellant did not show any remorse for his conduct until sometime after the accident. He found the appellant’s remorse to be qualified by the fact that he had not tried to contact Mr Monfries or his parents or assist them. His Honour took into account the appellant’s relatively young age, his previous good driving record and his early pleas of guilty. His Honour noted that the appellant had shown responsibility while he was at work, leading to the conclusion that his prospects of rehabilitation were “not without hope”. Consideration Section 98(a) of the Sentencing Act confers a wide discretion on a Court to cancel an offender’s driver’s licence and impose a disqualification. The period of disqualification may be “for such time as [the Court] thinks fit”. The appellant argued the disqualification period was manifestly excessive because, unlike cases involving repeat driving offenders, the appellant had no criminal history. He had no record of any driving offending and had been driving since he was 17. He was 22 at the time of the offending. It was argued that lengthy disqualification periods should be reserved for recalcitrant drivers and those who cannot be entrusted with the privilege to drive because their prospects of rehabilitation are poor. Further, it was submitted that the appellant’s prospects of work upon release would be significantly increased if he were permitted to drive. In our opinion, in this particular case, the appellant and the community would benefit from the appellant being permitted to drive at some reasonable time after his release. We were referred to the principles in Baumer v The Queen,[3] that deal with sentencing for culpable driving including setting disqualification periods. Baumer involved a lengthy licence disqualification for a repeat traffic offender who had pleaded guilty to the now repealed offence, “Dangerous Act”[4] with circumstances of aggravation. The circumstances of aggravation were that grievous harm was caused and the offence was committed when the offender was under the influence of alcohol. Maurice J examined the range of penalties, particularly disqualification periods[5] imposed for similar offending in both the Northern Territory and other jurisdictions. His Honour concluded that an appropriate disqualification period in that particular instance would have been five years rather than the twenty year period set by the sentencing judge. His Honour said that the disqualification period “should not exceed the period of imprisonment so greatly as to induce in the appellant a sense of hopelessness”. The majority, in this first appeal by Baumer found no error with the disqualification period set by the sentencing judge. Although the appeal to the High Court in Baumer turned on the construction of the circumstance of aggravation in s154(4) of the Criminal Code, the High Court also disapproved of an approach that would increase the sentence beyond what was appropriate because of previous convictions.[6] When the case was remitted to the Court of Criminal Appeal (NT), the original 20 year disqualification period was reduced to seven years. One of the reasons the Court reduced the disqualification period was to ensure that previous convictions did not inappropriately elevate the sentence and that the use of previous convictions was consistent with the principles in Veen v The Queen (No 2).[7] The Court also held that due regard should be had to the term of imprisonment to be served when setting a disqualification period and that an offender’s prospects of rehabilitation should be considered, including the effect of any disqualification period on employment prospects.