Gokel v Silverthorne - [2000] NTSC 22

Gokel v Silverthorne [2000] NTSC 22
PARTIES:GOKEL, Noel John
v

SILVERTHORNE, Phillip

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA2 of 2000
DELIVERED:  14 April 2000
HEARING DATES:  24 March 2000
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
CRIMINAL LAW & PROCEDURE
Sentencing – whether manifestly inadequate – prior offending – breach of conditional suspended sentence under Juvenile Justices Act 1983 (NT) – offender now an adult – whether to revoke sentence.
Rehabilitation prospects considered – circumstances of mitigation of penalty present – exercise of judicial discretion merciful but sound.
Return to imprisonment – unjust in all the circumstances.
Everett v The Queen (1994) 181 CLR 295, applied.
Crime supporting drug habits is no excuse.
R v Henry (1999) 46 NSWLR 346, applied.
Appeal dismissed.

Juvenile Justices Act 1983 (NT) s53(4B(d)) and s 53(4D)
Sentencing Act 1995 (NT), s5(1)(b)
Leaney v Bell (1992) 108 FLR 360 at 363, applied.
R v Gray (1977) VR 225, referred to.
R v Ragget & Ors (1990) 50 A Crim R 41, applied.
R v Nagas (1995) 5 NTLR 45, referred to.
Thomson v Mamarika, Northern Territory Supreme Court, unreported, Martin CJ, 23 December 1993, referred to.
Veen v The Queen (No 2) (1988) 164 CLR 465, applied.
R v Mulholland (1991) 1 NTLR 1, referred to.
REPRESENTATION:
Counsel:
Appellant:I Rowbottom
Respondent:  D Condi
Solicitors:
Appellant:DPP
Respondent:  NTLAC
Judgment category classification:      B
Judgment ID Number:  mar20006
Number of pages:  13

Mar20006
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gokel v Silverthorne [2000] NTSC 22
No. JA 2 of 2000

BETWEEN:
NOEL JOHN GOKEL

Appellant
AND:
PHILLIP SILVERTHORNE

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 14 April 2000)

The appellant was the complainant in proceedings against the respondent heard before the Court of Summary Jurisdiction at Darwin on 16 December 1999. The appeal is against the sentence imposed by the learned Magistrate upon the ground that it was manifestly inadequate.

The principles governing the determination of such appeals by the Crown or prosecutor against sentence are well settled see R v Ragget & Ors (1990) 50 A Crim R 41; R v Nagas (1995) 5 NTLR 45 and Thomson v Mamarika, Supreme Court of the Northern Territory, Martin CJ unreported, 23 December 1993. In Ragget it was held that to establish the existence of such an error the appellant must show that the sentence was not just arguably inadequate, but very obviously inadequate, that is, that it was unreasonable or plainly unjust. That case is also authority for the continuation of the practice of adopting a “two stage” approach to sentencing in appropriate cases by fixing the objective sentence and then allowing for proper factors in mitigation to be taken into account.
Over a period of about seven months from January to August 1999 the respondent had, on several occasions, unlawfully entered houses with intent to steal, and stolen goods and money. The total value of the property stolen was put to his Worship by the prosecution at $24,222.50, but looking at the detailed figures, the total sum may in fact have been somewhat more than that and the figure put to this Court was $32,407. He had also committed an act causing damage amounting to $1,000, and on another occasion trespassed and stole goods to the value of $400. The goods stolen were mainly personal belongings of the occupants, such as play stations and ancillary equipment, clothes, jewellery, electrical appliances, a computer and computer equipment. Suffice it to say that all of the goods were readily saleable for cash which, the respondent says, was used to buy drugs to support his habit. Apart from an esky to the value of $400, none of the property was recovered.
When searched upon being arrested on 16 November 1999, the respondent was found to be in possession of .6 of a gram of cannabis for which he was also charged and convicted.
The unlawful entries were made in company with another person, who has not been since found, in daylight hours during the working week whilst the occupants were absent at work.
During the first four months of the extended period of unlawful activity, the respondent was subject to a suspended sentence of detention imposed on 7 May 1997, when he was a juvenile, for similar offending. It appears that he had entered into a bond to be of good behaviour for two years at that time. The prosecutor indicated to his Worship that he applied to have the respondent dealt with for “the breach”. He added, however, that given that he anticipated his Worship would be invited by the respondent to take into account “totality”, his Worship may not see fit to do anything about the breach.
His Worship imposed a sentence of 12 months imprisonment in the aggregate for all counts and ordered that it be suspended after three months upon conditions that the respondent attend an anger management course, undergo drug adult rehabilitation and generally be under the supervision of the Department of Correctional Services for six months. It appears from the transcript available to this Court that his Worship had fixed an operational period of nine months, but the transcript is incomplete, and his Worship’s notes show that the period fixed was two years. His Worship decided to take no action in relation to the complaint regarding the breach of the bond.
In addition to the facts surrounding the commission of these offences, and the number of them, the appellant points to two circumstances which should have borne upon the sentence. Firstly, the prior offending and the commission of some of the offences whilst subject to the conditional suspended sentence. There had been about 20 such prior offences for like matters. In November 1997 he was convicted of unlawful entry and stealing and sentenced to four months detention. An application in relation to the breach of the bond was brought in December, but no action was taken by the court. The early offences in this group constituted the second breach of the bond.
It seems to me that notwithstanding that the respondent was before the Court of Summary Jurisdiction as an adult, he stood to be dealt with under the provisions of the Juvenile Justices Act 1983 (NT). Upon an application for revocation of a suspended sentence, the court may confirm or vary the order or deal with “the juvenile” for the offence or offences with respect to which it was made or imposed in any manner in which the court could deal with the juvenile if it had just found the juvenile guilty of the offence (s 53(4B)(d)). In determining how to deal with the juvenile, the court is to take into account the extent to which the juvenile had complied with the order (s 53(4D)).
As to the relevance of the prior offending, see Veen v The Queen (No 2) (1988) 164 CLR 465 cited by Angel J in R v Mulholland (1991) 1 NTLR 1 at p10 and oft referred to in the course of sentencing in this Court.
“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in the country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”
As to the breach of the bond, it has long been accepted that it is a relevant factor suggesting that the offender has no great regard for the law or his obligations under the bond “casting doubts upon the likelihood of his being of good behaviour in the future or taking advantage of any similar leniency extended to him ….” (R v Gray (1977) VR 225 at 229 followed by Kearny J in Leaney v Bell (1992) 108 FLR 360 at p363). As noted already, there had been an earlier breach in respect of which no action had been taken.
His Worship rightly regarded the offending as serious, describing it as a wholesale invasion of privacy and appropriation of people’s possessions. The additional factors, prior convictions and breach of the conditions attaching to the suspended sentence in the Juvenile Court allowed no legitimate claim for leniency in his opinion.
Turning to the offender, he was born on 5 April 1981, the series of offences being committed over the months embracing his 18^th birthday. It commenced about 18 months after the date upon which he had been subjected to the suspended sentence, and 14 months after he had last been convicted of an offence. His Worship was told that he had lived in Darwin throughout his life and came from a stable family background. However, he was unsuccessful at school, that being attributed to his suffering from attention deficit disorder, leading to learning difficulties and behavioural problems. There is medical evidence to support that. Having left home at age 14 he commenced getting into trouble by smoking marijuana and drinking alcohol to excess. For whatever reason he was a very unhappy boy, apparently attempting suicide in 1996 and whilst in detention in 1997. He had little by way of useful employment.
After release from detention he returned home, and during the time he remained there did not offend. However, he left in early January 1997 and started living in the same house as the alleged co-offender who was said to be about 27 years old. That person was using amphetamines and the respondent started doing the same for the first time. It developed into a daily habit. The stolen goods were disposed of by the co-offender and he supplied the respondent with the drugs.
The respondent returned to live with his parents in October 1998, having decided that he wanted to get off drugs and straighten his life out. That was about two months after committing the last of the present offences. The family doctor’s report shows that the respondent went to see him on 19 October for relief from the symptoms of drug withdrawal, that he was counselled and prescribed medication, referred to Amity House and to the psychiatric registrar at the Royal Darwin Hospital. The family doctor reported that the respondent had expressed deep remorse for his recent antisocial behaviour and had informed him that he had moved back to his parents home wishing to make a clean start. The doctor also referred to his “very supportive parents”. The respondent had, by 2 November, taken steps to obtain employment training and a job through an employment agency.
The respondent left home for four days to stay with friends during which time he smoked marijuana. Also, during that period, on 16 November, police stopped him and some friends in the street. They were not seeking the respondent, but his guilty conscience caused him to flee and thus aroused police suspicion. When caught, he was recognised as being a person to whom the police wished to speak in relation to the trespass and esky stealing offence. Whilst being interviewed in regard to that, the respondent decided to confess to all of the other offences. It was claimed that the police had no suspicion concerning his involvement in those matters.
Those personal circumstances, bar one, could be taken into account in mitigation of penalty. Some of them are entitled to significant weight, such as the voluntary efforts to change his lifestyle and the circumstances in which he made his confessions. The pleas of guilty also weigh in the respondent’s favour.
That he was engaging in crime to support his drug habit may be an explanation, but not an excuse, in the circumstances of this case. That has long been the position in the Territory courts and reference might also be made to the remarks of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 (a “guideline judgment”) commencing at p387 and the remarks of Spigelman CJ at p385:
“In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.
First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.
Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of “well-being” is, relevantly, a moral choice.
Thirdly, nothing in either the process of addiction or its neurobiological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.
Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.
There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.
Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected.
It was also submitted that the principle of general deterrence should be given less weight in the context of offenders who commit their crimes for the purposes of assuaging a drug addiction. In this submission, reliance was placed on the often expressed doubts about the direct effect on potential offenders of increases in penalties imposed. Particular reliance was placed on the driven nature of drug addicts, many of whom engage in high risk activity, like exchange of needles notwithstanding the risk of HIV infection. This kind of submission has been made many times before and I have quoted a few instances above. It has always been rejected. This Court should do so again.
General deterrence always operates at the margin. Some people will continue to engage in criminal conduct notwithstanding the level of, or increases in the level of, the penalties they suffer. However, some people will be deterred. It is not to the point that some addicts engage in high risk activities. It would be necessary to establish that all addicts do so. Neither the submissions, nor the materials in support, suggest anything of this character.
I attach particular significance to the impact that acknowledgment of drug addiction as a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of moneys for some other, but legal, purpose is perverse.
It may very well be the fact that increased possibility of detection has greater effect by way of deterrence than increased punishment. There is no warrant, however, for the courts abandoning reliance on the latter. In any event the two propositions are related. It is only because detection, when it occurs, leads to a level of punishment, that increases in detection have their deterrent effect.
It may very well be that the criminal justice system has a modest role to play in the control of drug addiction. But however modest that role may be, it must be performed in accordance with the basic structure of the criminal sentencing process. At the level of a structure deeply embedded in our society, not merely at the level of an individual’s calculus of risks and benefits for specific conduct, the criminal justice system is now, and has always been, based on the proposition that punishment deters and, within limits of tolerance, increased punishment has a corresponding effect by way of deterrence. This Court should not change such a longstanding assumption. Legislation would be required to alter the common law in this way.”
The principal emphasis in the respondent’s submissions on sentence related to his prospects of rehabilitation. Steps which he had taken voluntarily in that regard have been described. Amongst the purposes prescribed for which sentences may be imposed is that to provide conditions in the Court order that will help the offender to be rehabilitated (Sentencing Act 1995 (NT), s 5(1)(b)).
His Worship observed that the fact that the respondent was 18 meant that rehabilitation must be an important aspect of any sentence to be imposed. With respect, in that he was quite right. For most young offenders, whether juvenile or older, rehabilitation is a principal consideration, it being considered to be in the best interests of the offender and a significant means of endeavouring to protect the community, the ultimate objective of sentencing.
In this case his Worship was particularly careful to provide for the respondent to be assisted in that regard by appropriate counselling and treatment. No doubt he bore in mind the significant efforts made by the respondent before his detection by police.
The difficult sentencing task facing his Worship was to balance the elements of retribution and deterrence against rehabilitation. As the High Court observed in Veen No 2 at p476:
“Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment … . The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence, but sometimes they point in different directions.”
His Worship was obliged to convict and sentence the respondent to a term of not less than 14 days actual imprisonment under the provisions of the minimum mandatory sentencing regime contained in the Sentencing Act.
In his remarks prior to sentence, his Worship paid special regard to the mitigating circumstances, whilst noting that “the courts are not lenient to people who break into homes and steal property to support a drug habit”. He especially paid regard to the need to balance general deterrence against the prospects of rehabilitation, saying that unless a substantial portion of the sentence imposed was served, it would give undue prominence to rehabilitation. It was put by the appellant that given the sentence in fact imposed, the undue prominence in favour of rehabilitation was obvious and thus an error.

In declining to take any action on the breach of bond, his Worship said that sceptical though he may be, he would proceed on the basis that the respondent had indeed “turned the corner”. The appellant submits that those observations are also indicative of error.
The sentence imposed by his Worship was merciful, but not so far beyond the exercise of sound judicial discretion as to be manifestly inadequate. The decision not to take any action in relation to the breach of the bond was made in the knowledge that apart from the convictions in November 1997, there had been no other convictions for about 18 months. No action was taken in relation to the breach in relation to the November convictions, presumably upon the basis that the respondent was then to be sentenced to a term of actual detention and the conditions of the bond would continue to operate after his release. The respondent was to be sentenced to custody in an adult prison for the first time, a salutary lesson. Furthermore, although having some doubts about it, his Worship was rightly concerned to ensure that the respondent’s self help to rehabilitate was encouraged.
There is a further factor which militates against increasing the sentence at this stage. By the time this appeal was able to be heard, the respondent had served his sentence and been discharged from custody. To have him returned to prison to serve an additional term would be unjust in all the circumstances. In Everett v The Queen (1994) 181 CLR 295 at p 305 Brennan, Deane, Dawson and Gordron JJ said:
“As has been said above, the deep rooted notions of fairness which underlie the common law principle against double jeopardy required at a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge’s orders had been that each of the appellant’s had been released from custody and had been permitted and encouraged to presume his place in the community and to set out on the path of rehabilitation”.
Those observations are to apply here.
Finally, it should also be noted that his Worship was not pressed by the prosecutor in relation to the application to deal with the respondent for breach of the bond.
The appeal is dismissed.
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