Gokel v Hammond - [2001] NTSC 9

Gokel v Hammond [2001] NTSC 9
PARTIES:NOEL JOHN GOKEL

v
ROBERT HAMMOND

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA75 of 2000 (20014074)
DELIVERED:  1 March 2001
HEARING DATES:  29 January 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL - APPEAL AGAINST SENTENCE
Appeal from Court of Summary Jurisdiction - inadequacy of sentence - failing to impose an actual term of imprisonment – minimum period of driver’s licence disqualification
Traffic Act 1987 (NT), s 19 (2) and s 31
R v Nagas (1995) 5 NTLR 45; Thompson v Mamarika [1993] NTSC 116; Eldridge v Bates (1989) 8 MVR 394; Everett v The Queen (1994) 181 CLR 295; Hales v Garbe [2000] NTSC 49, referred to.
Pryce v Foster (1986) 3 MVR 321; Ebateringa v Boldiston (1989) 8 MVR 413; Smith v Torney (1984) 29 NTR 31; Gokel v Rogers unreported, Angel J, 17 November 2000, cited.
REPRESENTATION:
Counsel:
Appellant:J Whitbread
Respondent:  M Carter
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Withnall Maley and Co
Judgment category classification:        C
Judgment ID Number:  tho200102JA
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gokel v Hammond [2001] NTSC 9
No. JA75 of 2000 (20014074)

BETWEEN:
NOEL JOHN GOKEL

Appellant
AND:
ROBERT HAMMOND

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 1 March 2001)

This is a Crown appeal against a sentence imposed on the respondent in the Court of Summary Jurisdiction in Darwin on 31 October 2000.

On that date the respondent entered a plea of guilty and was convicted on the following two counts:
1.Driving a motor vehicle with a blood alcohol concentration in excess of .08 per cent, namely .154 per cent contrary to section 19(2) of the Traffic Act 1987 (NT).
2.Driving whilst disqualified contrary to section 31(1) of the Traffic Act.
The learned stipendiary magistrate imposed the following sentences:
1.A fine of $1000 plus $20 victims assistance levy.
2.Three months imprisonment, suspended immediately for a period of two years.
And it was ordered that the defendant be disqualified from driving in the Northern Territory or obtaining or renewing any driver’s licence for a period of 18 months from the date of the sentence.
The grounds of appeal are as follows:
“1.That the learned Magistrate erred in failing to impose an actual term of imprisonment in respect of both counts 1 and 2 in the circumstances of the offending and the offender.
2.That the learned Magistrate erred in imposing the minimum period of driver’s licence disqualification in respect of count 1, such period being manifestly inadequate in all the circumstances.
3.The learned Magistrate further erred in failing to impose a period of licence disqualification in respect of count 2.”
The principles governing the determination of Crown appeals against inadequacy of sentence were not in dispute. I have been referred to the oft quoted decisions of R v Ragett (1990) 50 A Crim R 41 and R v Nagas (1995) 5 NTLR 45. The principles regarding appeals from the Court of Summary Jurisdiction are the same (Thomson v Mamarika [1993] NTSC 116 (unreported), decision of Martin CJ delivered 23 December 1993).
The agreed facts in support of the charges were as follows (t/p 2):
“. . . On the evening of Friday 18 August 2000 the defendant consumed cider at his place of work in Winnellie with friends. He then got in his vehicle, a Toyota Rav 4 NT 562878 and drove towards his home in Palmerston. At about 12.45am on Saturday 19 August 2000 the defendant’s vehicle was flagged down by police at a random breath testing station on Elrundie Avenue. A roadside breath test was conducted which gave a positive reading; as a result the defendant was arrested for the purpose of a breath analysis and conveyed to the Berrimah watchhouse.
Subsequent analysis returned a reading of .154 percent blood alcohol concentration. Police checks also revealed that the defendant was disqualified from holding or obtaining a driver’s licence during the period 24 March 1996 to 24 March 2001.
When asked his reason for driving whilst intoxicated the defendant replied: ‘I’ve been at work since 6am and I’m just tired’. When asked his reason for driving whilst disqualified the defendant replied: ‘my wife’s unable to drive due to medical reasons’. At the time of the offence Elrundie Avenue was a public street open to and used by the public; traffic was light; weather clear; road sealed and dry; street light operational.”
A record of prior convictions marked Exhibit 1 on the appeal was tendered in the Court of Summary Jurisdiction.
The respondent was convicted in the Court of Petty Sessions in Hornsby, New South Wales on 5 August 1984 for offences of drive uninsured and unregistered motor vehicle, for which fines were imposed. He was also convicted of an offence of drive disqualified and for this offence he was fined and his licence disqualified till 20 June 1985.
On 28 September 1986 in the Local Court at Ryde he was convicted of driving above the prescribed concentration of alcohol, a fine was imposed and he was disqualified for three years.
On 12 June 1996 in the Court of Summary Jurisdiction in Darwin, he was convicted of drive exceed .08 with a reading of .272 and sentenced to 3 months imprisonment suspended on a good behaviour bond for 2 years. He was disqualified from driving for a period of 5 years backdated to 24 March 1996.
Also on 12 June 1996 at the Court of Summary Jurisdiction in Darwin he was convicted of an offence of drive exceed .08 with a reading of .178, he was fined and disqualified from driving for 2 years.
From my reading of the record of prior convictions, these periods of disqualification were made concurrent and run to 24 March 2001.
On the objective facts as agreed the respondent drove in a situation that did not amount to an emergency or exceptional circumstances. There was no medical emergency involving his wife. As his own counsel said in his submissions to the learned stipendiary magistrate “My client was tired, rather than wait the hour or so to get a taxi he stupidly took the risk and drove.”
The respondent was apprehended at a random breath testing station 100 metres from his home. The learned stipendiary magistrate correctly took into account that there was no suggestion there was anything wrong with the respondent’s manner of driving. However, I accept the submission by Ms Whitbread, counsel for the Crown, that the offence of driving with a reading of .154 exacerbates the offence of drive whilst disqualified.
In imposing a sentence for the offence of drive disqualified there are a number of authorities to the effect that an offence of drive disqualified alone will, in the absence of exceptional circumstances, attract a custodial sentence.
“Eldridge v Bates (1989) 8 MVR 394, Full Court of the Supreme Court of South Australia, per King CJ at p 395 line 29 (citing Coombe v Douris (1987) 5 MVR 442):
“'It is of the utmost importance that magistrates should appreciate their duty, painful though it might be on occasions, to impose sentences of imprisonment for this offence in order to maintain the effectiveness of disqualification orders. The judgment which I am about to give in this case should be a warning to all who may be tempted to drive under disqualification that imprisonment will almost certainly follow any non-observance of the disqualification.' These remarks have been cited with approval or applied by single judges of the court in a number of cases.”
Per Bollen J at p 400 (line 25):
‘The law is that only exceptional circumstances will justify a penalty other than imprisonment actually to be served. I say again. Nothing could be clearer.’
Pryce v Foster (1986) 3 MVR 321 per Rice J at 326:
‘These cases all go to show the consistent 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.’
Ebateringa v Boldiston (1989) 8 MVR 413 per Asche CJ at p 417 to 418:
‘Persons who attempt to drive when disqualified . . . must expect that the penalty will be that of imprisonment and it appears to me that that has already been made clear by this court.”
Smith v Torney (1984) 29 NTR 31 per Muirhead J at p 36 line 45:
‘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.'
Hales v Garbe (No. 2) JA 1 of 2000 delivered [30 June] 2000 per Martin CJ:
‘Since at least 1976, Territory Judges have consistently maintained that the usual disposition of an offender who drives whilst disqualified is by way of a sentence to imprisonment, even for a first offence. I need not go into detail, the authorities are usefully collected by Mildren J in Oldfield v Chute (1992) 107 FLR 413, affirmed later by his Honour as recently as in Arnold v Trenerry (1997) 118 NTR 1 at p 7.’”
The respondent was before the Court with one prior conviction for drive disqualified and three prior convictions for driving while having above the legal limit of alcohol.
Whilst the respondent is not to be punished again for these offences it does mean he is not entitled to the degree of leniency and consideration courts afford a person who has no prior convictions and is before the court as a first offender.
The paramount consideration in imposing a penalty for the offence of driving whilst disqualified is deterrence see Eldridge v Bates (1989) 8 MVR 394 per King CJ at 396:
“. . . There are many cases in which the courts have stressed their reluctance to send a young person to prison for the first time. Such considerations are not to be ignored in sentencing for the offence of driving under disqualification, but, generally speaking, they must give way to the paramount necessity for deterrence. . . .”
In his reasons for decision the learned stipendiary magistrate made no reference to the aspects of specific or general deterrence. In sentencing the respondent his Worship gave the following reasons (p 4 – 5):
“Yes, come forward Mr Hammond. You’ve just about put everything at risk that you’ve worked towards the last few years and that would have been a pity. But there’s no suggestion that there was anything wrong with your driving; it was a random breath station. What you did was stupid. You have convictions on the same day in June ’96 for exceed .08 in the Northern Territory. This is the first drive disqualified matter in the Northern Territory. There’s one way back in 1984 in New South Wales. In all the circumstances I think the matter can be fairly and properly dealt with by way of the following dispositions.
In respect of charge number 1 you are convicted and fined $1000 with a $20 levy; in default 20 days imprisonment, 3 months to pay. Charge number 2 you are convicted and sentenced to 3 months imprisonment suspended forthwith on the basis that you don’t commit any other offences punishable by imprisonment for the next 2 years. You are disqualified from driving or obtaining or renewing any licence in the Northern Territory for a period of 18 months. That 18 months starts today and runs concurrently with whatever else keeps you disqualified.
You wouldn’t want to come back again, Mr Hammond, on a drink driving charge; you’ll almost certainly get a gaol sentence straight away. But enough people have told me that you’re a fantastic worker; you’re a good bloke; you’re responsible; you’ve changed and turned over a new leaf the last few years. You’ve achieved a high position of responsibility; that I’m prepared to accept this was a real aberration out of your normal character as displayed over the last several years. I deal with it in the way I have.”
The learned stipendiary magistrate took into account the subjective aspects relevant to the respondent and to his rehabilitation. Whilst these aspects are very worthy of consideration by a court, they are not the paramount consideration in dealing with an offence of drive disqualified, particularly when it was accompanied as this was by a further offence of driving with above the legal limit of alcohol.
I agree with the submission by Ms Whitbread on behalf of the appellant, that the learned stipendiary magistrate failed to take into account the aspect of specific and general deterrence as a paramount consideration and in this he was in error.
The minimum disqualification period the respondent faced for what was his second offence under s 19(2) of the Traffic Act and the offence of driving with an alcohol level of .154 is a period of 18 months disqualification.
I agree with the submission made by counsel for the appellant that by imposing a period of 18 months disqualification the learned stipendiary magistrate fell into error. This is because the period of 18 months was made concurrent with the remaining approximately 5 months of disqualification the respondent had to serve consequent upon the order for disqualification made by the Court of Summary Jurisdiction in Darwin on 12 June 1996. Effectively this order resulted in a disqualification period of 13 months for a second offence under s 19(2) of the Traffic Act with a reading that exceeded .150. This is less than the minimum statutory period of disqualification.
In his submissions to the Court, Mr Carter on behalf of the respondent noted that during the hearing of the plea before the Court of Summary Jurisdiction the prosecutor had not sought to address the learned stipendiary magistrate, either early in the proceedings when his Worship indicated to defence counsel that he may be persuaded to suspend any sentence of imprisonment, at the time defence counsel mentioned home detention or at the conclusion of the proceedings when the learned stipendiary magistrate had announced his sentence and then asked: “Anything else gentlemen?”
Mr Carter relies on the authority of Everett v The Queen (1994) 181 CLR 295 to support his proposition that the prosecution cannot on this appeal raise the issue of the appellant serving an actual term of imprisonment in circumstances where the Crown made no such submission to the magistrate. Mr Carter referred to the proceedings before the learned stipendiary magistrate in support of his argument that no submission was made to the sentencing magistrate at a time when it was clear the learned stipendiary magistrate was contemplating a suspended sentence and where defence counsel had indicated at the start of his submissions that he sought an assessment for home detention. I refer to the following passage from Everett v The Queen (supra) at 302:
“In these circumstances, the following comments of King CJ (with whom Mitchell and Williams JJ. agreed) in Reg. v. Wilton which have been cited with approval in this and other courts, were applicable to the application for, and weighed heavily against the grant of, leave to appeal to the Crown in the present cases:
‘It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what Federal Court mean in Reg. v. Tait and Bartley by ‘double jeopardy’ . In my opinion, this Court should allow the prosecution to put to it, on appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.’
Those comments were made in a judgment disposing of an actual appeal after leave had been granted and, as the third sentence makes clear, are directed to a case where an order suspending the whole of the unexpired part of a term of imprisonment has been made with the result that the offender was entitled to go free. They should be applied to an application by the Crown for leave to appeal against such an order if it appears that the Crown was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion. Their effect in those circumstances is that, generally speaking, leave to appeal against sentence should not be granted to the Attorney-General where the substantial purpose of an appeal would be to attack the order suspending the sentence or should be granted in a restricted form to exclude such an attack where there are other grounds which properly attract a grant of leave.”
I note from a reading of Everett v The Queen (supra) that the Crown prosecutor in that matter had in fact made submissions relevant to sentence but had not submitted that a suspended sentence was inappropriate or outside a proper exercise of sentencing discretion.
A reading of the transcript of the proceedings before the learned stipendiary magistrate in the matter now before this Court, reveals that the prosecutor made no submissions at all on the question of sentence. The learned stipendiary magistrate did not actively or by inference prevent the prosecutor from addressing him. Neither did the learned stipendiary magistrate seek to be addressed by the prosecution. However, there was no reason for the prosecutor to conclude that if he stood up and sought to be heard on the issue of a suspended gaol sentence, the magistrate would refuse to hear or consider his submissions.
In addition to this matter Mr Carter submits that by not making any submissions to the magistrate the police prosecutor effectively precluded any consideration by the learned stipendiary magistrate of a home detention order. The learned stipendiary magistrate indicated (t/p 3) that he did not consider he needed to go as far as suspending the sentence on home detention. Accordingly, Mr Maley who was the then counsel for the respondent, desisted from saying anything further on the issue of home detention.
I acknowledge the validity of Mr Carter’s submission that had the Crown objected at the time to the proposed suspended sentence Mr Maley could have proceeded with all his submissions in support of an application for home detention and had this submission considered on its merits.
I will summarise what occurred in the hearing before the learned stipendiary magistrate.
The pleas of guilty were entered and the Crown facts read and agreed. The prior record was tendered. Mr Maley, who was then counsel for the respondent, opened his submissions by stating “Your Worship, I’m asking from the outset that my client be assessed for home detention . . .”. At the conclusion of these submissions Mr Maley tendered a bundle of references which were apparently then read by the learned stipendiary magistrate.
His Worship stated (t/p 3): “You might be able to talk me into a suspended sentence today, Mr Maley.”

The learned stipendiary magistrate then made some favourable comments on the references and then said “And, in all the circumstances, even though I think a gaol sentence is appropriate, I’m not sure that home detention – we have to go as far as suspending it on home detention.”
The two statements by the learned stipendiary magistrate which I have quoted in paragraphs 33 and 34, indicate very clearly that he was considering a suspended sentence and that he was not sure such suspended sentence required home detention. His Worship’s words do not indicate he had come to a final conclusion about the matter but made it very clear what he was thinking. These statements that indicate what was in the learned stipendiary magistrate’s mind were made before counsel for the defence had concluded his submissions in mitigation and well before the learned stipendiary magistrate announced his reasons for decision. Mr Maley then proceeded with his submission on the plea of guilty. At the conclusion of these submissions the learned stipendiary magistrate asked the respondent to come forward and gave some brief reasons before imposing the penalty already set out.
I accept the Crown submission that once his Worship had announced his decision and asked ‘Anything else gentlemen?’, it was too late for the prosecutor to seek to change the learned stipendiary magistrate’s mind about the imposition of a suspended gaol sentence.
However, prior to this point the prosecutor could have indicated he sought to be heard on the issue of a suspended gaol sentence for the offence of drive disqualified. Nothing was said by the prosecutor.
The decision in Everett v The Queen (supra) was recently considered by Martin CJ in a matter of Hales v Garbe [2000] NTSC 49 (t/p 5):
“The transcript shows that his Worship interrupted counsel for the respondent when she embarked upon a plea that the respondent not be imprisoned. He said: “I’m not going to impose even a conditional sentence”. That was a decision, not an intimation inviting submission. The prosecutor had no opportunity to address his Worship on the question of sentence prior to that, and, on the face of the transcript, none appears to have been available before his Worship proceeded to impose the sentence. This constitutes an exceptional circumstance which permits the prosecutor on this appeal to put contentions which were not in the Court of Summary Jurisdiction (R v Wilton (1981) 28 SASR 362 at pp 367 – 368 approved by the High Court in Everett v The Queen (1994) 181 CLR 295 at p 302. . . .”
In the matter before this Court, the learned stipendiary magistrate indicated the way he was thinking well before making the final decision. The prosecutor, although not specifically invited, did have an opportunity to seek to address the court on the issue of a possible suspended sentence. This did not happen. In accordance with the authority of Everett v The Queen (supra), I consider that avenue of appeal is not open to the Crown.
Accordingly, I dismiss Ground 1 of the appeal.
With respect to Ground 2, in imposing sentence the learned stipendiary magistrate made an order that the respondent be disqualified from obtaining or renewing any driver’s licence in the Northern Territory for a period of 18 months.
Count 1 carries a minimum period of 18 months disqualification of driver’s licence, being a second or subsequent offence of drive exceed .08 with a reading of .154.
The period of disqualification imposed by the learned stipendiary magistrate runs concurrently with the last 5 months of the period of disqualification imposed for the offence of drive exceed .08 on 12 June 1996. This effectively meant the respondent was disqualified from driving for approximately a further 13 months which is below the minimum statutory period of disqualification of 18 months for a second or subsequent exceed .08 offence with a reading of .154. I consider this to be so manifestly inadequate as to disclose error (see Gokel v Rogers (unreported) decision of Angel J delivered 17 November 2000 t/p 14).
I do bear in mind the principle of double jeopardy on Crown appeals.
I would quash the period of licence suspension imposed on Count 1 and substitute a period of 2 years and 6 months commencing from the date of the hearing before the Court of Summary Jurisdiction and the date of the order made by the learned stipendiary magistrate being 31 October 2000.
Appeal Ground 3, is the failure by the learned stipendiary magistrate to fix a period of licence disqualification for the offence of drive disqualified. Section 31 of the Traffic Act provides as follows:
“31. Driving while disqualified
(1) Where a person is disqualified from holding a licence for a period, that person shall not during that period -
(a) obtain a licence; or
(b) drive a motor vehicle on a public street or public place.
Penalty: Imprisonment for 12 months.
(2) Where a person is found guilty of an offence against subsection (1), the court may disqualify that person from holding a licence for such further period as it thinks fit.”
There is a discretion whether to order a disqualification of a driver’s licence for this offence. The learned stipendiary magistrate apparently made no such order for disqualification of driver’s licence. In view of the errors to which I have already referred and the serious nature of this offence I am of the opinion that failure to fix a period of disqualification was an error in the sentencing discretion. I consider the appropriate order to be a period of disqualification of driver’s licence of 2 years backdated to 31 October 2000.
I summarise my conclusion and orders on the various grounds of appeal are as follows:
Ground1: the appeal is dismissed. I affirm sentence of 3 months imprisonment suspended forthwith on condition the offender does not commit another offence punishable by imprisonment for a period of 2 years.
Ground 2: I allow this ground of appeal. The disqualification of driver’s licence imposed on Count 1 for a period of 18 months be quashed. I substitute this with an order that the respondent be disqualified from holding a driver’s licence for a period of 2 years and 6 months commencing 31 October 2000.
Ground 3: I allow this ground of appeal. The respondent is disqualified from holding or obtaining a driver’s licence for a period of 2 years on Count 2. This period of disqualification of driver’s licence commences on 31 October 2000.
Accordingly, the respondent is disqualified from holding or obtaining a driver’s licence for a total period of 2 years and 6 months and backdated to commence on 31 October 2000.

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