Morris v Heath - [2017] NTSC 79

CITATION:Morris v Heath [2017] NTSC 79
PARTIES:MORRIS, Norbert

v
HEATH, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No. LCA 19 of 2017 (21707391)
DELIVERED ON:  8 November 2017
DELIVERED AT:  ALICE SPRINGS
HEARING DATES:  27 October 2017
JUDGMENT OF:  MILDREN AJ
APPEAL FROM:  THE LOCAL COURT (Judge Borchers)

REPRESENTATION:
Counsel:
Appellant:I.Caulfield
Respondent:  S.Robson
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Mil 17546
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Morris v Heath [2017] NTSC 79

No. 21707391
BETWEEN:

NORBERT MORRIS

Appellant

AND:

ANDREW HEATH

Respondent

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 8 November 2017)
Introduction

This is an appeal against an aggregate sentence of imprisonment of 16 months imprisonment, with a non-parole period of 12 months, and a licence disqualification of 10 years imposed by the Local Court on 14 August 2017.
The grounds of the appeal are:
Ground 1: That the sentence was manifestly excessive.
Ground 2:That the sentencing Judge erred by not providing any explanation as to the proportions of the aggregate sentence attributed to each count.
Background facts
The appellant was charged on complaint with the following offences, both of which occurred on 10^th February 2017:
Count 1: Driving a motor vehicle on a road with a high range breath alcohol content, namely, 0.291 grams of alcohol per 210 litres of exhaled breath; contrary to s 21(1) of the Traffic Act.
Count 2: Driving a motor vehicle on a public street whilst disqualified from holding a drivers licence.
The appellant pleaded not guilty. Following a summary trial in the Local Court, the appellant was found guilty on both counts. The appellant did not contest that he was unlicensed; nor did he contest his blood alcohol reading. The appellant claimed that he was not the driver of the vehicle at the relevant time. The learned Judge rejected the appellant’s evidence, and accepted the evidence of the prosecution witnesses.
The facts which the learned Judge accepted which constituted the offences were that at 1:35am police were patrolling in Lander Court because it was known that alcohol was being illegally sold from an address in that street. The police observed a white Falcon sedan parked in the street. As police alighted, the vehicle drove off and disappeared. Police were unable to identify any of the vehicle’s occupants. Police then drove west along Larapinta Drive before returning to Lander Court at 1:45am when they found the same vehicle again in the street. When they approached it, it drove off. Police activated their high beam and red and blue lights and gave pursuit. The Falcon stopped at the end of Lander Court, and the appellant was apprehended after a struggle.
The appellant had ten prior convictions for driving whilst disqualified, four of which included high range readings: 0.232; 0.210; 0.181; 0.165, and a fifth was for driving under the influence. He also had three prior convictions for driving whilst unlicensed. Two of those occasions involved alcohol (0.182 and 0.092). He also had seven prior convictions for driving with alcohol in his blood, five of which were in the high range.
The only matters put in mitigation were:
· The last convictions for driving disqualified and with a high range blood alcohol content was on 20/12/2013 when he received an aggregate sentence of six months imprisonment backdated to 19/12/2013, and his licence was disqualified for five years. It was put that there was “something of a gap” in like offending since 2013. However, the “gap” was two years and three months (27 months) and of that period he had spent 12 months in custody on other matters plus the six months ordered to be served on 20/12/2013. So, 18 months of the 27 months had been spent in custody. The learned Judge made no mention of this submission, which was in any event without any merit.
· The appellant had completed a drink driver program in 2014. The learned Judge commented that if that were the case the applicant did not learn anything because he still drove with a high-range alcohol content.
In sentencing the appellant, the learned Judge said:
It’s clear that you have no insight or understanding of the danger that you pose to other road users and passengers in your motor vehicle. It is clear that any term of imprisonment in the past has not deterred you from continuing with this highly dangerous conduct of being on roads in the Northern Territory while you are drunk.
In determining the appropriate sentence, it would appear that the issue of specific deterrence; that is that a gaol term will remind you not to drink and drive, has had no effect in the past. However, in this matter, protection of the community, general deterrence, denunciation and punishment for your behaviour must be the appropriate sentencing considerations. Of course, you get no credit for pleading not guilty and putting the police – sorry, putting prosecutions to their proof.
Was there error in not providing any explanation as to the proportions of the aggregate sentences attributed to each count?
Counsel for the appellant relied upon the decision of the Full Court in R v Major[1] in support of the proposition that before imposing an aggregate sentence, the sentencer should indicate the notional sentence for each separate offence, then consider whether the sentences should be served wholly or partly concurrently and to what extent, and finally consider the totality principle before arriving at the aggregate single sentence for all of the offending.
There is nothing in R v Major which enquires such an approach as a matter of law. In fact, when the majority of the court resentenced in that case, they did not indicate how they arrived at the aggregate sentence which they imposed.
Counsel referred to the remarks of Kirby J in Putland v The Queen,[2] where his Honour referred to the difficulty which an appellant might have in challenging the unidentified components of an aggregate sentence. However, not only was Kirby J in dissent, but neither his Honour nor any of the other members of the count indicated that a failure to identify the components in the manner proposed, was an error of law.
The High Court has since R v Major make it clear in Markarian v The Queen[3] that the process of sentencing is not a mathematical exercise, and has given its approval to the intuitive synthesis approach.[4] A requirement to isolate each individual sentence in the manner contended for would not be consistent with the reasoning in that case.
More recently, the Full Court of the Supreme Court of South Australia has expressly held that it is not an error of law for a sentencer to merely pronounce an aggregate sentence without identifying separate head sentences for each offence.[5] The approach agitated for by the appellant has been adopted in Victoria, at least in relation to indictable offences,[6] but apparently not in relation to summary offences.[7] The explanation for this apparently turns on the wording of the Victorian legislation.[8]
The practice in the Northern Territory has been, for as long as I can remember, not to identify the separate head sentences when imposing an aggregate sentence. In Murray v R[9] Martin CJ considered that the practice of identifying separately the sentences to be notionally imposed on each count may, but not necessarily must, be adopted when fixing a single aggregate sentence. The other members of the Court did not comment on that topic.
I see no reason to find that the learned Judge erred in not identifying the sentence he had in mind relating to each offence. This ground of appeal must be dismissed.
Manifestly excessive
Each of the offences carried a maximum penalty of imprisonment for 12 months. Consequently, the maximum penalty if an aggregate sentence is imposed, is 24 months: Sentencing Act (NT) s 52(3).
The learned Judge’s sentencing remarks disclose that in arriving at the total sentence, his Honour took into account the appropriate considerations. The appellant’s continued disregard over many years to comply with the law by driving whilst his licence was disqualified and driving whilst in excess of the prescribed blood alcohol limit demonstrated a contumelious disregard of the law and court orders designed to enforce the law for the purposes of ensuring the safety of the public. There were no mitigating circumstances. In order to establish error, the appellant needed to persuade this Court that the sentence imposed was not only excessive, but manifestly so.
Counsel for the appellant submitted that the period during which the appellant was driving was not long. There was no allegation, and no finding, that he had been the driver when the vehicle first came to police attention and drove off. The period of driving was therefore relatively of short duration. There was no evidence that the appellant had been driving erratically or caused embarrassment to other road users. There is no substance to this submission. It is often the case that the prosecution is unable to say for how long the driver has been behind the wheel.
In my opinion the sentence imposed, although high, was not manifestly excessive.
Conclusion
The appeal must be dismissed.

[1] (1998) 70 SASR 448.

[2] (2004) 218 CLR 174 at 213-214 [116].

[3] [2005] HCA 25; (2005) 228 CLR 357.

[4] [2005] HCA 25; (2005) 228 CLR 357.

[5] See R v Copeland (No 2) (2010) 108 SASR 398; [2010] SASCFC 61; and R v Ravet [2011] SASCFC 67 at [46].

[6]DPP v Rivette [2017] VSCA 150 at [84]-[87].

[7] Director of Public Prosecutions v Felton (2007) 16 VR 214; 171 A Crim R 177; [2007] VSCA 65 at [48].

[8] For example, in Victoria, the Court of Appeal held in DPP v Rivette [2017] VSCA 150 at [87] that aggregate sentences were inappropriate when there were only a small number of counts, but the Sentencing Act (NT) specifically empowers a court to impose an aggregate sentence when there are two or more offences joined in the same complaint or indictment.

[9] (2006) 200 FLR 89 at 108, [53].