Lalara v Day - [2003] NTSC 90

Lalara v Day [2003] NTSC 90
PARTIES:LALARA, Steven
v

DAY, Karl Robert

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA30 of 2003
DELIVERED:  20 August 2003
HEARING DATES:  9 July 2003
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
APPEAL
Justices appeal – appeal against – manifestly excessive – failure in consideration of alternative sentencing options – significant period free from conviction normally justifies substantial mitigation –
Criminal Code 1999 (NT), s 226B(2)
Munungurr v R (1994) 4 NTLR 63
REPRESENTATION:
Counsel:
Applicant:D Dalrymple
Respondent:  G McMaster
Solicitors:
Applicant:Dalrymple & Associates
Respondent:  DPP
Judgment category classification:      C
Judgment ID Number:  mar0335
Number of pages:  7

Mar0335
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lalara v Day [2003] NTSC 90
No. JA30 of 2003

BETWEEN:
STEVEN LALARA

Applicant
AND:
KARL ROBERT DAY

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 20 August 2003)

Appeal against sentence. On 21 January 2003 the appellant was sentenced on his plea of guilty for that on 2 November 2002 he unlawfully entered business premises, namely the Angurugu school and unlawfully damaged property therein contrary to s 226B(2) of the Criminal Code. The offence carries a maximum penalty of seven years imprisonment. He was sentenced to imprisonment for nine months.
One of the grounds of appeal is that the sentence was manifestly excessive. Sundry other grounds of appeal suggest that the weight given by the learned Magistrate to various factors taken into account in the sentencing process was too much in the case of aggravating circumstances or too little in the case of mitigating circumstances. It is also contended that his Worship erred in failing to consider alternative sentencing options.
The admitted facts going to the offence are that on that day at about 8pm the appellant went to the rear window of the Batchelor Institute building at the school. He kicked the metal cage covering the window frame, causing the window frame to come away from the wall, smashing the louvres in the window frame in the process. He then climbed into the building where he picked up a facsimile machine and threw it onto the floor, smashing it. He then turned over tables, including computer tables that had computers and monitors on them, without causing damage to any of it. Before leaving the building he smashed four further louvres at the front of it.
The estimate of loss placed before the court was $2,000 to replace the wall and windows, $700 to replace the facsimile machine and $520 for the louvres at the front door. As to the computers, his Worship noted that they were not damaged, but that when an offender makes a mess and someone has to clean it up that could involve initial cost.
The appellant told police that he was really angry, anger triggered by something unconnected to the school or its staff. It was put to his Worship as being an example of a "classic case of transferred aggression onto the community property", rather than taking it out on the person who provoked it. It was explained that there had been a dispute between the appellant and his cousin-brother over money and alcohol. I agree with his Worship that this was a serious offence of its type. The appellant had gone out of his way to break into the building, damaging the place of entry, then to deliberately damage a piece of valuable equipment and then to break out causing further damage. The circumstances leading up to the offence do no more than explain why the appellant acted as he did. It does not excuse it, or indeed to my mind, mitigate it.
At the time of the offence the appellant was an Aboriginal single man of 30 years of age who lived alone at Angurugu. Upon leaving school he completed an apprentiseship as a plumber, after which he worked in that capacity for the Angurugu Council. He ceased that employment when he discovered that work relating to repair of sewerage pipes caused him to be ill. He has since received unemployment benefits. He drinks alcohol occasionally, but not to excess and he does not smoke cannabis or take other dangerous drugs.
During the course of the hearing before his Worship, the appellant indicated his willingness to pay compensation for the loss caused by him. His Worship did not pursue that offer because there was no "concrete proposal".
Since the commencement of the Fines and Penalties (Recovery) Act on 1 January 2002 it will no longer appear necessary for a court to concern itself with the details of the proposals to pay compensation. Section 105(1)(c) brings an order for compensation within the scope of the enforcement provisions of the Act, Part 3, which applies by operation of s 106(1). That Act prescribes the period within which a compensation order is to be met, 28 days (s 23(1)) and the amount ordered to be paid is to be paid to the Fines Recovery Unit unless the court otherwise directs. Application may be made for further time to pay, s 25, and the Unit may allow it to be paid by instalments, s 26(2)(b). Such an order may be enforceable as if a judgment for payment of the amount under the Local Courts Act 1989 (s 107). However, note should be taken of the provisions of s 90(5) of the Sentencing Act which prohibits a court from making an order for compensation where the person whose property was taken, lost, destroyed or damaged does not consent to the order being made. No such consent was available to his Worship.
Counsel then appearing before his Worship submitted an appropriate penalty would avoid a full time custodial sentence and mention was made of the possibility of the appellant undergoing community service or being the subject of a home detention order.
His Worship clearly rejected those submissions speaking of the prevalence of the offence on Groote Eylandt and the need for general deterrence and given the offender's history, the need, as he saw it, for personal deterrence as well.
His Worship must be taken to be well aware of the prevalence of this type of offending on Groote Eylandt and, presumably, of the range of sentences imposed. What was of particular concern to the learned Magistrate was the appellant's record of prior convictions.
That record shows that he was first convicted of an offence at age 14 in the Juvenile Court. He was dealt with in that court and later in the Court of Summary Jurisdiction until he was 20 years of age, in 1991. There were two charges for damage to property in 1987, three in 1988, four in 1989 and one each in 1990 and 2000. There were a number of other convictions for unlawful entry, stealing, unlawful use of motor vehicles and interfering with motor vehicles.
On an occasion when he was before the Court of Summary Jurisdiction in 1991 he was sentenced, again, to a significant period of imprisonment. (The record is not clear as to the total). He had previously been ordered to be held in detention as a juvenile and sentenced to terms of imprisonment as an adult. There was a gap in his convictions between September 1991 until 21 June 2000 when he was convicted and sentenced to 14 days imprisonment for damage to property where the loss was in excess of $500. That was during the period when mandatory sentencing was in force. The circumstances of the offending were not unlike this, in that he had had a fight and went to the school and damaged property there. What is significant is that there was a gap of nearly nine years.
His Worship was clearly troubled about what he should do in the light of all that. When dealing with the particulars, he said:
"The second thing I take into account is that you’re not entitled to a lot of leniency because of all the trouble you’ve been in in the past. When you were young, both as a teenager and a young adult, you got into a lot of trouble and I’ve already gone through what trouble you got into with Ms Robinson … now those matters are relevant, they happened when you were young, and the court can take into account periods of time since offending, when a person stays out of trouble and you’re entitled to more leniency than say a person who committed all of these offences or finished committing all of these offences, say one or two or three years ago. They're still relevant, if they're relevant they go to your background. You've had warnings in the past and the community would expect you, because of your warnings, not to get into trouble again."
In rejecting the submission that there should be suspension of whole or part of a sentence to imprisonment, his Worship first briefly mentioned the seriousness of the offence and the need for general deterrence and went on:
"And the second reason is that your prior convictions, to my mind, disentitle you to what could be called the leniency of having the suspended sentence. It might, for example, of been the case, that if this was your very, very first property damage matter, I might have considered suspending the gaol term, but it would seem to me that you’re not entitled to that leniency because of all the warnings you’ve had in the past."
His Worship then proceeded to impose a sentence of imprisonment for nine months after allowing a reduction of twenty five percent for cooperation, plea and remorse.
I consider that his Worship erred in his treatment of the appellant's prior convictions. Those recorded in the juvenile court should have not been accorded much significance, and, as pointed out in Munungurr v R (1994) 4 NTLR 63 at p 74, a significant period free from conviction normally justifies substantial mitigation. Here, there was a gap from 1991 to 2000, when a relevant offence was committed, and a further gap of two and a half years before this event. To hold that in those circumstances the appellant was disentitled to mitigation of sentence, including by way of suspension of it, wholly or in part, amounted to error.
Coming to resentence the appellant I take into account the circumstances of the offence and note that he was sentenced to imprisonment for a similar offence committed on 26 May 2000 under similar circumstances. I note his personal circumstances and discount to a significant degree the convictions until 1991. The sentence must reflect a significant element of general deterrence, on the assumption that incarceration of an offender will have such an effect upon those who may be minded to act in a similar manner. As did his Worship, I allow a reduction of sentence which might otherwise be imposed of the order of twenty five percent for cooperation, plea and remorse. I do not consider that his Worship erred in imposing a sentence to imprisonment as opposed to any other sentencing option.
The sentence to nine months imprisonment imposed by his Worship is quashed. In lieu thereof the appellant is sentenced to six months imprisonment which is to be suspended after he has served three months. I fix an operational period of one year and six months from the date he is released from custody.
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