Garling v Firth
[2016] NTSC 41
•19 August 2016
Garling v Firth [2016] NTSC 41
PARTIES:GARLING, Jason Thomas
v
FIRTH, Justin Anthony
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 11 of 2016 (21561149)
DELIVERED: 19 August 2016
HEARING DATES: 10 May 2016
JUDGMENT OF: HILEY J
APPEAL FROM: COURT OF SUMMARY JURISDICTION
CATCHWORDS:
APPEAL — CRIMINAL LAW— appeal against sentence — suspended
sentence — condition of suspended sentence unrelated to offending —
procedural fairness —driving whilst disqualified
Crimes Act 1900 (NSW) s 556A.
Sentencing Act 1995 (NT) s 5, ss 33A - 39, s 40, s 43(5), ss 44-48, s 101,
s 102(1)-(2), s 103.
Traffic Act 1987 (NT) S 31(1).
R v S W Bugmy [2004] NSWCCA 258, applied.
Alice v Burgoyne [2003] NTSC 107, Annetts v McCann [1990] HCA 57;
(1990) 170 CLR 596, Bantick v Blunden (1981) 58 FLR 414, Brand v Parson
[1994] 1 VR 252, Bropho v State of Western Australia [1990] HCA 24;
(1990) 171 CLR 1, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427,
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gokel v
Hammond [2001] NTSC 9, Macpherson v Beath (1975) 12 SASR 174,
Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687, Potter
v Minahan [1908] HCA 63; (1908) 7 CLR 277, R v Ingrassia (1997) 41
NSWLR 447, R v Stone (1995) 85 A Crim R 436, Sams v Sims [2013] NTSC
18, Teakle v Western Australia [2007] WASCA 15; (2007) 33 WAR
188, Williams v Marsh (1985) 38 SASR 313, Wilson v Hill [1995] NTJ 52,
referred to.
A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in
Victoria (Thomson Reuters, 3rd ed, 2014).
D C Pearce and R S Geddes, Statutory Interpretation in Australia
(LexisNexis Butterworths, 8th ed, 2014).
P D Finn, ‘Statutes and the Common Law’ (1992) 22 UWALR 7.
REPRESENTATION:
Counsel:
Appellant:G O’Brien-Hartcher
Respondent: S Ledek
Solicitors:
Appellant:Northern Australian Aboriginal Justice Agency
Respondent: Director of Public Prosecutions
Judgment category classification: A
Judgment ID Number: Hil1606
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINGarling v Firth [2016] NTSC 41
No. JA 11 OF 2016 (21561149)
BETWEEN:
JASON THOMAS GARLING
Appellant
AND:
JUSTIN ANTHONY FIRTH
Respondent
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 19 August 2016)
Introduction
On 28 January 2016 the appellant pleaded guilty to driving a motor car whilst disqualified on 11 December 2015 (contrary to s 31(1) of the Traffic Act 1987 (NT)) (the December offending).[1] He was convicted and sentenced to one month imprisonment, fully suspended for a period of 12 months from 28 January 2016. A condition of the suspended sentence was that, during the operational period of 12 months, he not possess or consume alcohol and submit to testing if requested to do so by police (the no-alcohol condition).
The appellant has appealed against the sentence in so far as it includes the no-alcohol condition, the main argument being that there was no relevant connection between alcohol and the offending. There is no challenge to the sentence of one month’s imprisonment or to the fixing of an operational period of 12 months.
Relevant background
At the same time as he was convicted and sentenced for this offence, he was also convicted and sentenced for two offences committed on 28 October 2015, namely driving while disqualified and driving with a high range blood alcohol content (0.167%) (the October offending).[2] He was fined $1000 (with a victim’s levy) for driving while disqualified. For driving with a high range blood alcohol content he was fined $1000 (with a victim’s levy) and disqualified from driving for five years backdated to 28 October 2015.
The magistrate heard submissions and dealt with both lots of offending together. The statement of alleged facts related to both lots of offending. There was no suggestion that the appellant or his driving ability was affected by alcohol at the time of the December offending. However, the statement of alleged facts included reference to part of a conversation between the appellant and a police officer shortly after he was arrested for that offending:
When asked why he was driving a motor vehicle while disqualified the defendant replied: “Oh, come on man, I just got home and have a Christmas party tonight so I went up to get a few beers.”
The appellant had prior history of driving a vehicle while under the influence of alcohol. On 28 October 2014 he was convicted and sentenced for driving a vehicle with a high range blood alcohol content (0.201%) and driving without due care, on 28 September 2014.[3] In addition to being fined he was disqualified from driving or applying for a driver’s licence for 18 months, and from driving any vehicle without an ignition lock for a further 12 months thereafter. That disqualification was backdated to 28 September 2014. Accordingly at the times of the October offending and the December offending, he was driving in breach of the disqualification imposed on 28 October 2014.
The appellant was also convicted and sentenced on 10 February 2010 for driving with a high range blood alcohol content (0.219%) and driving without due care. He was fined $1000 and disqualified from holding a drivers licence for 20 months. Apart from those convictions he had only been convicted of three other offences in the Northern Territory, all relatively minor, committed in 1996, 2003 and 2009.
Grounds of appeal and submissions
The appellant advanced three grounds of appeal:
1. That the appellant was not afforded procedural fairness because he was not informed of the possibility of a condition such as the no-alcohol condition being imposed;
2. That the no-alcohol condition was unrelated and irrelevant to the offending; and
3. That the sentence was manifestly excessive because of the inclusion of the no-alcohol condition.
Ground 1 – procedural fairness
Immediately after convicting and sentencing the appellant for the October offending her Honour said:
For the second drive whilst disqualified, you are convicted. You are sentenced to one month imprisonment, which is suspended immediately for a period of 12 months from today. You are also on a condition that you do not possess or consume alcohol and you submit to testing if requested to do so by police and that is for the next year.
Although counsel for the Crown had submitted that a term of imprisonment suspended may have been an appropriate penalty for the high range drink driving offending in October there was no discussion about conditions that might be attached to such a suspended sentence, or to any sentence imposed in relation to the December offending.
Unless there is a clear legislative intent to the contrary, a statutory power conferred on a court which may destroy, defeat or prejudice a person’s rights and interests or legitimate expectations must be exercised with procedural fairness.[4] It has been held, and I agree, that procedural fairness applies in the sentencing process.[5]
Counsel for the appellant contended that before a court imposes a condition that will interfere with a person’s rights, interests or privacy, such as the no-alcohol condition, the person should be told of that possibility and provided an opportunity to make submissions, especially where the particular disposition is not obvious or clearly called for. Although counsel at trial would have foreseen the possibility of imprisonment, particularly for repeat offending of this nature, namely driving while disqualified,[6] and would have requested that the sentence be suspended, it was submitted that he would not have expected the imposition of a condition such as the no-alcohol condition.
Pursuant to s 40 of the Sentencing Act 1995 (NT) (the Act) a Court may make an order suspending a sentence of imprisonment of five years or less and may impose “such conditions as the court thinks fit”. Where no conditions are imposed the offender is liable to have the sentence restored if he or she commits another offence that is punishable by imprisonment during the operational period.[7]
Section 101 of the Act provides that:
A court must not make an order which has attached to it conditions … unless the conditions are explained to the offender in accordance with s 102 and the offender consents to … the order being made and to the conditions being attached.
Section 102(1) requires a court which proposes to make such an order to “before making the order, explain or cause to be explained to the offender, in language likely to be readily understood by the offender … the purpose and effect of the proposed order and the consequences that may follow if the offender fails without reasonable excuse to comply with the proposed order”. However “non-compliance with [that requirement] does not affect the validity of the order.”[8]
Notwithstanding s 102(2) there is clearly a legislative intent that proposed conditions be explained to the offender both prior to and at the hearing in language likely to be readily understood by him, and that he be made aware of the possible consequences of failing to comply with the conditions before consenting to have them imposed. I do not consider that s 102(2) displaces the normal principles of procedural fairness. In other words there may be cases where an order will be set aside where there has been non-compliance with the intent of ss 101 and 102 and obligations to apply procedural fairness.
In many cases the offender is ordered to be under the supervision of a probation and parole officer and conditions are imposed. Before that is done the Court orders and is provided with a report under s 103 of the Act which will usually set out a number of proposed conditions which would have been discussed with the accused.
In other cases, as occurred here, the sentence may be suspended subject to one or more conditions, without supervision and without any supervision report having been obtained, and thus without the offender having had the opportunity to discuss proposed conditions with a person such as a probation and parole officer.
In many cases, such as these matters, where there is a prospect of a sentence of imprisonment being imposed counsel would be expected to consider whether or not the sentence should be suspended and, if so, whether and what conditions should be imposed. Even without ss 101-102 of the Act I would consider it important for the offender to be made aware of an intention to impose conditions, and of the nature of those conditions. Amongst other things, this would enable the offender to identify any particular reasons why a particular condition should not be imposed, for example if it appeared impossible or unlikely that the offender could comply with the condition or if the circumstances of the offender were such as to render the imposition of the condition unreasonable.
In many situations, particularly in a busy court where the offender is represented by counsel, it is reasonable to expect that the offender would be made aware of the likelihood of such conditions by counsel. For example if the offender’s consumption of alcohol contributed to or was part of the offending and if the offender had problems with alcohol abuse, counsel should anticipate the likelihood of a court imposing one or more conditions designed to assist with the offender’s rehabilitation and/or to protect the community from further alcohol related offending during the operational period, and to assist both the client and the court accordingly.
In the present matter, counsel should have considered the possibility of the judge imposing a condition such as the no-alcohol condition as part of the sentence for the October offending. That offending clearly involved the appellant driving a motor vehicle while under the influence of alcohol and in circumstances where he had previously engaged in similar conduct. A no alcohol condition is commonly imposed and would be expected in such circumstances.
It might have been a different matter if the December offending was being dealt with on a separate occasion, there being no suggestion that the appellant had consumed any alcohol before driving on that occasion. But the fact is that the two sets of offending were dealt with at the same time. Accordingly, counsel should have foreseen the possibility of a no alcohol condition being imposed, albeit in respect of the October offending. Being aware that imprisonment was a likely punishment for either or both of the two sets of offending, and that a suspended sentence would be requested, the judge would have been assisted by being informed by counsel if there were any particular reasons why this kind of condition should not be imposed.
In these circumstances, despite the apparent non-compliance with s 102 of the Act, I do not consider that the appellant was denied procedural fairness.
Ground 2 – conditions unrelated to offending
The power to impose conditions when suspending a sentence is found in s 40(2) of the Act. It provides:
An order suspending a sentence of imprisonment may suspend the whole or a part of the sentence and the order may be subject to such conditions as the court thinks fit.
The power to order “such conditions as the court thinks fit” appears to be very wide. However, in my opinion, the power cannot be unlimited and must be construed and exercised in the context in which the power is conferred, namely as part of the sentencing regime set up in the Act.
That regime contemplates that an offender’s sentence of imprisonment may be suspended in circumstances where his or her rehabilitation will be better assisted if the offender was released from prison and thereby able to engage in activities that would be in the better interests of both the offender and the community.[9] Accordingly, it is common for courts to impose conditions such as the no-alcohol condition and conditions designed to provide for supervision, assessment and treatment in relation to drug or alcohol abuse or dependency where such issues may have been underlying causes of or associated with the relevant offending.[10] However, where the offender’s issues with alcohol or drugs or other personal circumstances have nothing to do with the relevant offending, I doubt that a sentencing judge would have the power to use the suspended sentence regime for the purpose of trying to help the offender to overcome those issues, absent specific provisions in the Act or other relevant legislation.
Counsel were not able to point to any judicial decision concerning the breadth of the power to impose conditions under s 40 of the Act and in particular whether and in what circumstances a court could impose a condition which is unrelated or irrelevant to the offending. However Mr O’Brien-Hartcher, counsel for the appellant, referred to, and I have found, a number of decisions in other jurisdictions which concern the imposition of conditions in relation to suspended sentences and good behaviour bonds.
Section 556A of the Crimes Act 1900 (NSW) empowered a court to discharge an offender conditionally on his entering into a recognisance to be of good behaviour. Section 556A(1A) provided that such a recognisance “shall be conditioned upon and subject to such terms and conditions as the court shall order.” In Ingrassia,[11] the NSW Court of Criminal Appeal (Gleeson CJ, McInerney and Ireland JJ agreeing) said, at 385:
Whilst subs (1A) confers upon the court a wide discretion, the discretion is a judicial discretion, to be exercised consistently with the scheme and purpose of the section as a whole. Provisions empowering the release of offenders on recognisances commonly provide that they may contain any conditions which the court considers appropriate, but the scope of such conditions is not unfettered: Keur (1973) 7 SASR 13 at 15; Bantick v Blunden (1981) 58 FLR 414 at 416.
In Bantick v Blunden Green CJ said, at 416:
Section 20(I) of the Crimes Act 1914 gives the court the power to impose such conditions as it thinks fit. Although the power is not expressly made subject to any limitations, it is obvious that its scope is not unlimited: for example conditions imposed pursuant to it must bear some relationship to the offence or to the circumstances of the offender and may not be such as to oblige a defendant to do something which is unlawful or impossible: see Isaacs v McKinnon and R v Keur..
In R v S W Bugmy,[12] the NSW Court of Criminal Appeal considered a condition of a bond imposed on Mr Bugmy which required him to remain away from the town of Wilcannia during the term of his sentence unless he obtained the prior permission of the judge. He had been sentenced to two years imprisonment, partly suspended on a bond containing conditions including this one, for a serious assault committed by him (in Wilcannia) while he was under the influence of alcohol. There was evidence and submissions to the effect that Mr Bugmy had grown up and had family and friends in the Wilcannia area and that he would be unable to break his habit of alcohol abuse, which had often been followed by criminal behaviour by him, if he went back there. The trial judge considered, and Mr Bugmy agreed, that Mr Bugmy’s absence from Wilcannia would be of great benefit to him. At the appeal the Crown contended that a condition need only relate to some aspect of punishment or rehabilitation.
Kirby J, with whom Bryson JA and James J agreed, reviewed a number of authorities relating to the imposition of conditions on a suspended sentence, and distilled the three principles set out in [33] below.
At [53] Kirby J quoted the following passage from Macpherson v Beath,[13] a case where a bond was imposed on a university student for assaulting a lecturer. The bond included a condition that he “obey the reasonable directions of, and be at all times courteous to, members of the administrative and teaching staff of any educational institution which he may be attending”. Per Bray CJ, at 180:
I have more than once deprecated the tendency to insert unusual conditions into recognizances designed to control the defendant's private life in contexts only indirectly related, if at all, to the crime for which he is being punished. I have allowed appeals against such conditions: see Neil v Steel (1973) 5 SASR 67; Baddock v Steel (1973) 5 SASR 71. To my mind they tend to savour of excessive paternalism and in extreme cases of tyranny. I realise that views differ on this matter, but mine are strongly held.
Kirby J also cited Williams v Marsh,[14] a case concerning a good behaviour bond which prohibited the offender from going to the foreshore area of Glenelg. He had been convicted of behaving in a disorderly manner at Colley Reserve at Glenelg. Per Cox J, at 316:
Obviously any additional conditions that a court might decide to include in any particular case should be appropriate to the circumstances of the offence and the offender in question and, as with all forms of punishment, be no more than the circumstances reasonably require. It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. It would not be a proper use of s70ab for the court merely to take the opportunity offered by a man's conviction to attempt a general reform of his character that might be thought desirable. It is a power to be used with circumspection.
Following his analysis, Kirby J extracted the following three principles, at [61]:
First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.
Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed.
Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous.
(emphasis added)
I consider that similar considerations apply in relation to the imposition of conditions under s 40 of the Act. The judicial observations referred to above strongly fortify the doubt that I expressed at the end of [25] above.
The primary focus should be the appropriate sentencing disposition for the particular crime involved having regard to both the objective offending and the particular offender. The latter would involve relevant factors in s 5 of the Act, in particular punishment, specific deterrence, protection of the community and rehabilitation of the offender. I consider that 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. I do not consider that s 40 of the Act confers a power to impose a condition which has no such nexus.
Absent an express power to restrict a person’s normal rights and freedoms, even where the person has committed a particular crime, courts should be reluctant to construe legislation as conferring powers which can be exercised irrespective of any connection with the particular offending in respect of which the offender is being sentenced. This would be contrary to the presumption against overriding fundamental common law rights in the absence of a clear expression of legislative intention to do so.[15]
Further, even if a particular condition was relevant to the offending I do not consider that it would be permissible to impose a condition under s 40 that would be tantamount to additional punishment over and above, or different to, the actual sentence of imprisonment imposed. For example a condition that purported to confine the offender to his home for a period may be tantamount to imposing home detention, or a condition purported to require the offender to engage in community work would be tantamount to imposing a community work order. Both of these are sentencing options which can only be exercised in accordance with the statutory provisions that expressly relate to them, in ss 44-48 and ss 33A-39 respectively.
Mr Ledek, counsel for the respondent, submitted that there was a relevant nexus between the December offending and the no-alcohol condition. He referred to the fact that the appellant’s stated reason for driving on that occasion was that he “just went up to get a few beers”. I do not consider that this provides the necessary nexus, particularly because there is no evidence that he consumed that or any other alcohol before driving and no suggestion that his judgment was impaired by alcohol so as to have caused him to drive in the first place or so as to otherwise affect his driving. His offending was no more relevantly connected with alcohol than it would have been if he was driving for some other lawful purpose, for example to get some takeaway food or pick up a friend. His offending was unlawful because he was not licensed to drive, not because of his reason for driving.
Mr Ledek also relied upon the October offending and his previous convictions for high range blood alcohol content as forming the “well spring” of the December offending. But, as I have already said, this offending, unlike that earlier offending, did not involve any prior or current use of alcohol. Whilst it might be desirable to attempt to rehabilitate the appellant by stopping him from drinking, I do not consider that this can be done by imposing the no-alcohol condition in the context of the December offending.
Mr Ledek also stressed the fact that both the October offending and the December offending were dealt with at the same time. I accept that a no alcohol condition could have been imposed in relation to the high range blood alcohol content offending (if instead of imposing a fine the judge had sentenced the appellant to imprisonment for that offending), and also if an aggregate sentence was imposed in respect of all three offences. However there was no power to aggregate sentences across the two files. Moreover, although all of those offences were dealt with at the same time, they involved two distinct sets of offending at different times. Notwithstanding that the Court would have had to take into account both sets of offending for the purpose of totality and this and his earlier offending when considering specific deterrence, community protection and rehabilitation, the sentence for the December offending could only be for that “particular crime”. That particular crime did not warrant the imposition of the no-alcohol condition.
I consider that the Court did not have the power to impose the no-alcohol condition. Accordingly ground 2 is made out.
Ground 3 – manifestly excessive to impose the no-alcohol condition
Apart from the contention that a no alcohol condition should not have been imposed at all, counsel for the appellant contended that the no-alcohol condition was manifestly excessive in that it extended for 12 months, notwithstanding that the period of imprisonment that was suspended was only one month.
I agree that the conditions of a suspended sentence should not in their operation be unduly harsh or unreasonable or needlessly onerous. So much is clear from the authorities, including those noted and discussed above. As I said in relation to ground 1, one would normally expect the offender to have the opportunity of considering the proposed conditions and indicating whether and why one or more of them would be unduly harsh unreasonable or needlessly onerous. However in many cases, such as those where the offending has involved or occurred as a result of the use of alcohol or drugs, it would not be unduly harsh unreasonable or needlessly onerous to impose a no alcohol condition.
The appellant’s history of high level drink driving, driving whilst disqualified and the pathetic reason which he gave for driving while disqualified on this occasion implies not only that he is contemptuous of relevant traffic laws but also that he may have a serious drinking problem. But, as I have said, it is not a function of a sentencing judge or magistrate to address an offender’s drinking problems unless they are relevant to the offending which is being dealt with.
If indeed the appellant does have a serious drinking problem there would be a great risk of him breaching a no alcohol condition, particularly a condition that would operate for 12 months, and being liable to have some or all of his suspended sentence (of one month) restored. He may be “set up to fail”. In the circumstances of the December offending, I consider that the no-alcohol condition was “unduly harsh or unreasonable or needlessly onerous”. Although an operational period may be longer than the term of imprisonment that is suspended, the effect of the no-alcohol condition is that the appellant is at risk of breaching the condition for 11 months beyond the time when he would have been released from prison had he served the one month imposed rather than been released under s 40.
Even if there was power to impose this condition, which I doubt, the imposition of the no-alcohol condition in circumstances where the sentence of imprisonment was only one month, was manifestly excessive.
Conclusions and Resentence
The appeal is allowed and the sentence quashed.
Counsel for the appellant submitted that the appellant should be resentenced by removing the condition attached to the suspended sentence. I agree.
Accordingly the appellant is sentenced to one month imprisonment, fully suspended for a period of 12 months from 20 January 2016.
--------------------------
[1] File no 21561149.
[2] File no 21553026.
[3] File no 21442701.
[4] Teakle v Western Australia [2007] WASCA 15; (2007) 33 WAR 188 per Buss JA at [63] and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 per Mason CJ, Deane and McHugh JJ at 598.
[5] See for example Sams v Sims [2013] NTSC 18 (Kelly J) at [15] – [16], Wilson v Hill [1995] NTJ 52 (Martin (BF) CJ), and Brand v Parson [1994] 1 VR 252.
[6] See for example Gokel v Hammond [2001] NTSC 9 at [15] and Alice v Burgoyne [2003] NTSC 107 at [16] – [17].
[7] s 43(5) Sentencing Act.
[8] s 102(2) Sentencing Act.
[9] See for example s 5(1)(b) Sentencing Act. See too R v Stone (1995) 85 A Crim R 436 at 440, and discussion in Dinsdale v The Queen [2000] HCA 54; [2000] 202 CLR 321 at [18], [26] and [81] – [83].
[10] See for example discussion in in A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), at [11.40] referring to the Sentencing Act 1991 (Vic).
[11] R v Ingrassia (1997) 41 NSWLR 447.
[12] R v S W Bugmy [2004] NSWCCA 258.
[13] Macpherson v Beath (1975) 12 SASR 174.
[14] Williams v Marsh (1985) 38 SASR 313.
[15] See for example Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304 and application of the principle in subsequent cases such as Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 214-5, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437-8, and discussion in Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 699D-700D (Kirby P), P D Finn, ‘Statutes and the Common Law’ (1992) 22 UWALR 7 at pp 24 and 27-8, and D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) at [5.27], [5.28] and [5.35].
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