Doctor v Kidson - [2003] NTSC 30

Doctor v Kidson & Ors [2003] NTSC 30
PARTIES:DOCTOR, JEFFREY JOE
v
KIDSON, ROLF
DOCTOR, JEFFREY JOE
v
RIGBY, KERRY LEANNE
DOCTOR, JEFFREY JOE
v
GOKEL, NOEL JOHN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 110 of 2002 (20211553)
JA 111 of 2002 (20016696)
JA 112 of 2002 (20100020)

DELIVERED:  26 March 2003
HEARING DATES:  26 March 2003
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:D. Lewis
Respondent:  M. Johnson

Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecution
Judgment category classification:    B
Judgment ID Number:  ril0311
Number of pages:  7

ril0311
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT KATHERINE
Doctor v Kidson & Ors [2003] NTSC 30
JA 110 of 2002 (20211553)
JA 111 of 2002 (20016696)
JA 112 of 2002 (20100020)

BETWEEN:
JEFFREY JOE DOCTOR

Appellant
AND:
ROLF KIDSON

Respondent
JEFFREY JOE DOCTOR

Appellant
AND:
KERRY LEANNE RIGBY

Respondent
JEFFREY JOE DOCTOR

Appellant
AND:
NOEL JOHN GOKEL

Respondent

CORAM: RILEY J
EX TEMPORE
REASONS FOR JUDGMENT
(Delivered 26 March 2003)

I have before me an appeal arising out of a sentence imposed on the appellant and orders made in the Court of Summary Jurisdiction at Katherine on 8 November 2002. The appeal is as of right pursuant to the provisions of section 163 of the Justices Act.
It is necessary to consider the history of proceedings against the appellant in order to understand the sentence imposed upon him.
On 25 January 2001 he pleaded guilty on file 20016696 in the Court of Summary Jurisdiction at Katherine to a charge of driving with a blood alcohol content of .117% and with driving whilst disqualified. At the same time he pleaded guilty on file 20100020 to driving whilst disqualified and having failed to provide a sufficient sample of breath.
The present appeal relates only to the offences of driving whilst disqualified. On the charge of driving whilst disqualified on file 20016696, the appellant was sentenced to imprisonment for one month. On the charge of driving whilst disqualified on file 20100020, he was sentenced to imprisonment for four months. The sentences were directed to be served cumulatively, giving a total sentence of imprisonment for five months. The sentence was then suspended on condition that the appellant take part in the Rockhole Rehabilitation Program. There was no challenge to those sentences.
On 1 November 2002, on file 20211553, the appellant pleaded guilty to a further charge of driving whilst disqualified. At that time he admitted to breaches of the earlier suspended sentences.
An edited version of the précis read to the court on 1 November 2002 is as follows:
“At about 5:10 pm on Thursday 1 August, the defendant drove a red Holden Commodore station wagon south from Katherine towards Mataranka. As he approached the Central Arnhem Road intersection, he noticed a police roadside breath-testing station. He pulled over to the side of the road and turned his vehicle around, approximately 150 metres from the breath-testing station, and drove back towards Katherine. He drove about 400 metres before stopping the vehicle and getting out, running into bushland where he stood appearing to be going to the toilet.
Police arrived on the scene and spoke with him. A check revealed he had been disqualified from driving for a period of five years from 1 January 2001. The defendant was asked why he was driving the vehicle, to which he replied: ‘Because my missus was tired’. When asked where he was going, he replied: ‘To Mataranka to pick up my mate’.”
On 8 November 2002 the learned sentencing Magistrate convicted the appellant on file 20211553 and sentenced him to imprisonment for a period of six months. His Worship restored the sentences on files 20016696 and 20100020 and directed that the sentence imposed on file 20211553 be made concurrent with the restored sentences then imposed. The effect of the orders made by his Worship on that occasion was that the appellant was sentenced to serve six months’ imprisonment commencing on 8 November 2002.
The appellant has appealed, complaining that the sentence was manifestly excessive in all the circumstances of the offence and of the offender.
The principles in relation to such an appeal are well known. The exercise of the sentencing discretion will not be disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is 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 proceedings or the sentence may be so excessive or inadequate as to manifest such error. The sentence itself may afford convincing evidence that in some way the exercise of the discretion has been unsound.
The offence of driving whilst disqualified is clearly a serious offence. There is ample authority for the proposition that such offences will normally attract sentences of imprisonment - eg Hales v Garbe (2000) NTSC 49. The learned Magistrate referred to ‘pronouncements by the Supreme Court that, unless there are exceptional circumstances, custodial sentences are warranted’. Those observations are to be understood in the sense discussed in the authorities.
I accept, with respect, the following observations of Mildren J in Oldfield v Shute (1992) 107 FLR 413 at paragraphs 9 to 12:
“9.In Smith v Torney (1984) 29 NTR 31 at 36, Muirhead J observed that: ‘the only practical method of obtaining maximum compliance with such orders is to ensure that those subject to such orders understand that the consequences of a breach will almost inevitably be grave and imprisonment must, in this regard, be the general sanction’. Nevertheless, as His Honour also observed at 36: ‘There is a danger of injustice if an individual is treated as one of a class of offenders. It is necessary that each person be sentenced as an individual. Every sentence must be determined on its own facts’.
10.Since then, the consistent policy of this court has been to treat this offence as a serious one. As Rice J observed in Pryce v Foster (1986) 38 NTR 23 at 28: ‘These cases all go to show the constant attitude adopted by this court in relation to an offence of this nature and to indicate that, unless exceptional circumstances exist, a term of imprisonment is almost inevitable’.
However, it must be emphasised that these decisions are not to be understood as requiring a term of imprisonment unless exceptional circumstances exist. As O’Leary CJ observed in Seears v McNulty (1987) 28 A Crim R 121 at 131:
‘These various dicta, and doubtless others that are to be found in the many cases that have come to this court from decisions of Magistrates, provide a useful and important guide to the attitude we think it appropriate to adopt towards the offence of driving whilst disqualified. But I think it is important that they be regarded as no more than that. In particular, I do not think that what was said by Forster J in Daniels v Foster should be regarded as circumscribing a Magistrate’s or a Judge’s sentencing discretion so that unless “exceptional circumstances” exist (whatever precisely is encompassed in that expression) a sentence of imprisonment must be imposed. Nor do I think Forster J intended such a construction to be given to his words. In my view, the proper approach to sentencing for the offence of driving whilst disqualified is that stated by Muirhead J in Smith v Torney at 36 to 37, set out above, and with which I respectfully agree’.
12.In particular, I would not wish it to be thought that there must, as the learned Magistrate put it, be a prison term ‘in the absence of any valid reason or justified excuse’. Although not a specific ground of appeal, that is an incorrect statement of the law. The sentencing discretion of Magistrates not to impose a sentence of actual imprisonment goes beyond such matters. One matter worthy of consideration may be the age of the offender; another may be the lapse of time which has passed between the disqualification and the subsequent driving. As Muirhead J observed in Smith v Torney at 37: 'The sentencing Magistrate has many aspects to consider, including the lapse of time between disqualification and the subsequent driving, the circumstances under which the defendant drove, and of course his general character’.”
Contrary to the submission of the appellant, his Worship did not proceed on the basis that special circumstances were ‘required’ in order to avoid a custodial sentence. He used a shorthand expression for the propositions of law that I have set out above. He was, as he stated, aware of those authorities.
In relation to the re-imposition of the suspended sentences his Worship has acted in accordance with section 43(7) of the Sentencing Act. His Worship then stood back and considered the overall impact of the sentence that he was about to impose and the orders he was about to make. He modified the impact by ordering concurrency between the sentence then imposed and the sentences restored.
In my view, the sentence imposed by his Worship was within the range available to him. He was asked to consider disposition by way of community service order and by way of home detention order but thought they were inappropriate in the circumstances. He was correct in that regard.
His Worship took into account the circumstances surrounding the offending and he also took into account each of the positive matters put on behalf of the appellant. In determining the appropriate penalty, his Worship took into account all the relevant matters.
In my view, error has not been demonstrated and the sentence was not manifestly excessive. The appeal must be dismissed.

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