Paddy v Whitehouse - [2021] NTSC 52

CITATION:Paddy v Whitehouse [2021] NTSC 52
PARTIES:PADDY, Meshach
v

WHITEHOUSE, Kathryn Grace

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 15 of 2021 (22107952)
DELIVERED:  14 July 2021

HEARING DATE: 7 July 2021
JUDGMENT OF: Barr J

CATCHWORDS:
CRIMINAL LAW – APPEAL – Appeal against sentence – manifest excess ground – Appellant driving while disqualified – Appellant convicted and sentenced to a term of imprisonment of three months, suspended after one month served – Previous conviction for driving except under an AIL (‘Alcohol Ignition Lock’) licence – Whether an actual term of imprisonment was warranted – Whether the appropriate sentencing disposition was the imposition of a fine, bond, community work order or a fully suspended sentence – Whether the sentencing judge failed to consider the further options of a community based order or a community custody order – Offender had a relevant prior conviction – Driving except under an AIL – another form of and/or closely akin to driving disqualified – Driving while disqualified a serious non-compliance with a court order – Grave breach of the law – Manifest excess not established – Appeal dismissed
Traffic Act 1987 (NT), s 19(1), s 22(3)(b), s 31(1), s 31(1B), s 31(2)
Motor Vehicles Act 1949 (NT), s 10(4A)
Sentencing Act 1995 (NT), Part 3, Division 4A, Division 5 Subdivision 2A
Truong v The Queen [2015] NTCCA 5, 35 NTLR 186, applied.
Thomas v Henderson [2001] NTSC 54, 162 FLR 395; Mamarika v Ganley [2013] NTSC 6; Andalong v Jones [2019] NTSC 87, referred to.

REPRESENTATION:
Counsel:
Appellant:M Aust
Respondent:  D Castor
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar2104
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Paddy v Whitehouse [2021] NTSC 52

No. LCA 15 of 2021 (22107952)

BETWEEN:

MESHACH PADDY

Appellant

AND:

KATHRYN GRACE WHITEHOUSE

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 14 July 2021)

This is an appeal against severity of sentence.
On 7 April 2021, the appellant pleaded guilty before the Barunga Local Court to a single charge contrary to s 31(1) of the Traffic Act that, on 5 March 2021, being a person who was disqualified from holding a drivers licence, he drove a motor vehicle on a public street. The maximum penalty for that offence is imprisonment for 12 months.
The appellant was convicted and sentenced to three months’ imprisonment, suspended after the appellant had served one month.[1] An operational period of 12 months from the date of sentence was fixed. He appeals on the ground that the sentence was manifestly excessive. He contends that the three month head sentence was manifestly excessive and that the requirement to serve one month before suspension of the sentence was also manifestly excessive.
The appellant was 39 years old at the time of offending. He had four prior convictions for drink driving offences. Three of the four convictions were somewhat dated (two offences committed in 2006 and one in 2012). However, he had been convicted of driving with a medium-range blood alcohol content in May 2019. He had received a licence disqualification for the mandatory minimum period of 12 months,[2] such disqualification period deemed to have commenced on 18 May 2019. In addition, he had been disqualified from obtaining a licence other than an AIL licence for an additional period of 12 months immediately after the mandatory period.[3]
An ‘AIL’ is an alcohol ignition lock, a device fitted to a motor vehicle which prevents the vehicle starting unless a sample of a person’s breath is given through the device and the sample indicates that the person has a breath alcohol content of less than 0.02 g per 210 L of exhaled breath.[4] The Registrar of Motor Vehicles may grant an AIL licence to an otherwise disqualified person to enable that person to drive a vehicle which is fitted with an approved alcohol ignition lock.[5]
The appellant’s situation was that, from 17 May 2020 to 16 May 2021, he was disqualified from obtaining a licence other than an AIL licence. He was thus not permitted to apply for a licence other than an AIL licence during that period. Moreover, it was an offence for him to drive a motor vehicle on a public street except under an AIL licence.
On 10 July 2020, the appellant drove a motor vehicle on a public street without having an AIL licence. The entry in the Information for Courts document read “Drive vehicle other than AIL vehicle”.[6] However, that appears to be an error, in that the offence created by s 31(1B) Traffic Act 1987 is driving a motor vehicle on a public street during the AIL disqualification period “except under an AIL”.
For the offending on 10 July 2020, the Local Court fined the appellant $200 (plus victims levy) and disqualified him from holding a licence for a further period of 12 months,[7] from 18 May 2020. As counsel for the appellant submitted, that disqualification had the effect of replacing the original AIL period with a ‘standard’ disqualification period.
Against that background, the appellant drove while disqualified on 5 March 2021, just over six months after he had been disqualified by the Local Court.[8] The Police facts in relation to the offending, admitted by the appellant, were as follows:
On Thursday 27 August 2020, the defendant appeared before the Katherine Local Court, where he was disqualified from driving for a period of 12 months back dated from 18 May 2020.
At approximately 3:03pm on Friday 5 March 2021, Remote Sergeant Daniel Leighton and Aboriginal Community Police Officer Damien Roebuck observed the defendant driving along Central Arnhem Road, Barunga, in a black Toyota Hilux utility…
The defendant was apprehended for the purpose of a random breath test, which returned a negative reading.
Leighton requested the defendant to produce his driver’s licence, where the defendant replied he didn’t have it on him as it was suspended.
Police checks confirmed the defendant was currently disqualified from driving.
The defendant was cautioned and questioned in relation to the offence prior to being issued with a notice to appear for a later date.
At the time of the offence Central Arnhem Road, Barunga, was a street/road open to and in use by the public.
At no time did the defendant offer any lawful and/or emergency reason for committing the offence.
The defendant was cautioned and asked the following questions:
· When asked why he had driven whilst being disqualified, the defendant chose not to reply.
· When asked if there was an emergency reason for driving, the defendant replied “no”.
When Judge Neill asked defence counsel why the appellant had driven while disqualified, he was told that a friend had asked the appellant to collect a car and that he had agreed. The further explanation was that the appellant’s friend was very worried about the car being “damaged by people”, and that the appellant had felt an obligation to help his friend.[9]
After defence counsel had outlined the appellant’s subjective circumstances, she submitted that it was open for the judge to impose a fine, albeit “a perhaps more significant fine than he was last given”, or a bond. After the judge indicated that the appellant was facing actual imprisonment, defence counsel referred to alternative dispositions, and asked the judge to have the accused assessed for a community work order.[10]
The prosecutor submitted that the appellant did not have any valid reason to drive, and that imprisonment was warranted. However, the prosecutor also indicated agreement with the defence submission that the appellant might be assessed for a community work order. He submitted that a community work order could “promote the general deterrent factor”.[11]
The learned judge’s sentencing remarks were as follows;
I appreciate that he has today pleaded guilty to one count of driving disqualified and he has done so at the very earliest opportunity. That is a significant factor which I will take very strongly into account.
However, he comes before this court with four previous convictions for drink driving and he has been disqualified on four previous occasions. That was twice in 2006, once in June 2006 in the Northern Territory and once in August 2006 in Western Australia; next in 2012 in the Northern Territory and most recently in 2019 in the Northern Territory. He breached the AIL restriction on the last occasion.
[Defence counsel] has made submissions that there is a distinction to be drawn between driving in breach of AIL requirements and driving disqualified. I do not accept that that distinction is one of any real significance. The right to drive a motor vehicle has been withdrawn except in very strictly limited circumstances. There is no evidence before me as to any efforts made by Mr Paddy on that occasion to have his car fitted with an alcohol ignition lock or to obtain such a licence. All I know is that he was convicted of breaching that requirement on that occasion. He was disqualified for a further 12 months and fined.
Today he has come before me having driven disqualified yet again with no rational explanation of any sort for so doing. This can only be seen as a contumelious disregard for the orders of the court given the history I have just outlined and given that Mr Paddy had no explanation to offer police at the time he was pulled up and today has no explanation to offer this Court other than somebody said “Will you drive my car for me?” and Mr Paddy said “Yes”.
That seems to be the beginning and the end of it because his friend wants him to help him out. Yet Mr Paddy is best placed, better than most people given the history I have outlined, to understand that he was not to drive and he has chosen to ignore that and he has chosen with his eyes wide open to do so.
In all the circumstances, this is a case where a sentence of actual imprisonment must be imposed. In so doing, I take into account the very early plea.
Notwithstanding that he had already given defence counsel the opportunity to make submissions as to why a term of actual imprisonment should not be imposed, Judge Neill then heard further submissions from defence counsel, who submitted that the sentence should be fully suspended. She submitted, “… this is the first offence of this particular nature”, while conceding that there was a “similar offence” on the appellant’s record.[12] She argued that all sentencing objectives: specific deterrence, general deterrence, and denunciation could be met with a fully suspended sentence. Counsel also submitted that his Honour should consider having the appellant assessed for a community custody order or home detention “before sending him to a term of actual imprisonment”.[13]
The judge acknowledged counsel’s further submissions but re-stated his reason for imposing a sentence requiring actual imprisonment. He convicted the appellant and imposed the sentence referred to in [3] above.
The appellant’s contentions on appeal
Counsel for the appellant contends that the appellant’s offence of driving disqualified was “his first offence of that kind”.[14] In a very narrow technical sense, that contention may be correct. However, as explained in [4] – [6] above, the appellant had been disqualified from obtaining a licence other than an AIL licence and, without such a licence, he was prohibited from driving on a public street. The offence created by s 31(1B) Traffic Act 1987 is another form of and/or closely akin to driving disqualified.
Counsel for the appellant relies on positive aspects of the appellant’s subjective circumstances, in particular, the fact that he was 39 years old, with part-time employment, working daily, four hours per day; that he had a reasonably solid employment history; and that his criminal history indicated that he had successfully completed previous periods of licence disqualification and had complied with community based orders without further offending. He had never been sentenced to a term of imprisonment nor spent any time in actual custody. I note that there is no indication that the Local Court judge did not take these matters into account.
Counsel for the appellant also submits that his client lived in a remote community in which there was no public transport or taxi services. While that may be true, the remoteness of the community and/or the lack of public transport had no obvious connection with the offending.
Counsel for the appellant further submits that the driving charge was not such as to put any members of the community at risk; it was not accompanied by any allegations of speeding or recklessness and the appellant was not intoxicated.[15] Although those facts may be accepted, it is hard to see how the absence of aggravating circumstances or the absence of additional offending can mitigate the actual offending. Breaching a court disqualifying order has for many years been treated as a grave breach of the law because it involves a serious non-compliance with a court order.[16]
Counsel for the appellant further argues that the sentencing judge failed to have regard to the availability of two sentencing options introduced as part of the ‘new era in Corrections framework’ in 2011: the community based order and the community custody order.[17] Counsel for the appellant referred to the following passage from the relevant second reading speech:[18]
Approximately 25% of the prison population is made up of driving offenders who serve an average of 75 days. This provides limited opportunity to access treatment or training programs targeting alcohol misuse and bad driving behaviour. Driving offenders are almost always disqualified from obtaining a licence and, when released from prison, are placed at risk of quickly committing a further driving offence, particularly if they are placed in a situation where there is no alternative for them but to drive while disqualified from doing so. This further contributes to the revolving door of recidivism. What this cohort of offender needs is intervention, supportive training, and rehabilitation targeting their offending behaviour such as treatment for alcohol misuse. Under the new era in corrections, this cohort will be able to be diverted from prisons to an appropriate residential treatment and training centre.
In relation to the first sentencing option introduced by the amending legislation, the community based order, the Minister explained that, while subject to such an order, an offender must comply with certain statutory conditions, including ongoing supervision by probation officers charged with supervising them. The court may additionally order a number of other conditions, including that an offender undertake prescribed programs, undergo assessment and treatment for misuse of alcohol or drugs, psychological and psychiatric treatment, perform community work or be subject to electronic monitoring.[19]
The Minister then explained that the community custody order has some similar features to the community based order, but that the level of supervision is more intensive.[20]
I considered community custody orders in Mamarika v Ganley,[21] and provided the following summary and analysis:
23. A community custody order is available in relation to certain kinds of offences where the court decides to impose a sentence of 12 months or less. A community custody order is a sentence of imprisonment, albeit one which is served in the community. It must be borne in mind that a community custody order establishes a very intensive regime. The statutory conditions of order apply automatically, and include the obligation to report to and receive visits from a probation officer at least twice during each week the order is in force; to inform a probation officer of any change of address or employment within two clear working days of any change; not to leave the Northern Territory except with permission of a probation officer; and to comply with the reasonable directions of a probation officer in the use of an approved voice recognition system for the effective monitoring of the offender’s activities.
24. The sentenced offender under a community custody order is on a ‘tight leash’. In addition to the restrictions mentioned, the offender must perform 12 hours of community work each week, and the Director of Correctional Services may increase the obligatory number of hours to a maximum of 20 hours per week.[22]
25. The offender must spend “any balance of the hours” each week undertaking a prescribed program, or undergoing counselling or treatment, as directed by the Director.[23] The counselling or treatment must relate to the offender’s psychological or psychiatric problems or the offender’s misuse of alcohol or drugs.[24] These statutory requirements are an indication that persons who are required to serve their sentence by way of a community custody order are people who are in need of such programs, counselling or treatment.
26. In addition to the statutory conditions, including participation in programs, counselling or treatment as directed by the Director, the court may impose a condition that an offender undertake one or more specified prescribed programs. The court may also order that an offender not consume or purchase alcohol or a non-prescribed drug.[25] The court may also order that an offender reside at a specified place and may even impose a condition that an offender wear an approved monitoring device for the period the order is in force (or some lesser period). Although the learned magistrate did not impose any such additional conditions, the possible conditions which the court may impose indicate the nature and level of seriousness of the offending which might lead to a community custody order, and the type of offender for whom a community custody order might be an appropriate sentence.
27. It may also be noted that administration of a community custody order requires intensive input on the part of any probation officer assigned to supervise the offender. I note that s 48E(1)(d) reads:
“The offender must report to, and receive visits from, a probation officer at least twice during each week the order is in force ….”
28. I do not need to interpret that statutory condition for the purposes of this appeal, but a plain reading is that there must be four contacts per week: two reports by the offender and two visits by the probation officer. Whether the legislation requires two or four contacts per week, there is no doubt that the legislature intended a regime of intensive supervision and probation officer involvement. The Director of Correctional Services must necessarily allocate considerable resources to the administration of all aspects of a community custody order.
In the present case, apart from the background fact that the appellant had driven with a medium range blood alcohol content in May 2019, which had led to his being subject to an AIL order when he drove on a public street in July 2020 without an AIL licence, there is no connection between his offending on 5 March 2021 and the consumption or abuse of alcohol. With respect to some of the matters mentioned by the Minister, reproduced in [20] above, the appellant was not in a situation where there was no alternative for him but to drive while disqualified. His reason for driving was feeble. As the sentencing judge determined, he drove that day in contumelious disregard for the previous order of the Court. He did so “with his eyes wide open”. There is no indication that the appellant’s offending raised the need for “intervention, supportive training and rehabilitation targeting [his] offending behaviour”. A community based order, with supervision by a probation and parole officer and the obligation to undertake prescribed programs for the misuse of alcohol, would have been an inappropriate sentence. Moreover, having regard to the summary and analysis extracted in [23] above, a community custody order would have been an even more inappropriate sentence.
Manifest excess

In Truong v The Queen,[26] the Court of Criminal Appeal observed as follows:
Whether a sentence is manifestly excessive, or not, is a conclusion. It does not depend upon attributing a specific identified error in the reasoning of the sentencing judge. In relying upon the ground of manifest excess, it is incumbent upon the applicant to show that the sentence was not just excessive, but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.
The Court went on to cite with approval the statement of Bongiorno JA in Hanks v The Queen,[27] in relation to manifest excess:
The term ‘manifest excess’ is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.
The maximum sentence for the offence to which the applicant pleaded guilty was a term of imprisonment of 12 months. The offence was a second offence of its kind. In my judgment, notwithstanding the possible merits of other sentencing options, the head sentence of three months’ imprisonment was unexceptional, as was the discretionary decision to partially suspend the sentence after one month served.
The appellant has failed to establish that the sentence was so far outside the range of a reasonable discretionary judgment as to bespeak error. The appellant has failed to establish manifest excess.
I order that the appeal be dismissed.

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[1]Sentencing Act 1995, s 40 (2).

[2]Traffic Act 1987, s 22 (3)(b)(i).

[3] Traffic Act 1987, s 22 (3)(b)(ii).

[4] Traffic Act 1987, s 19 (1).

[5]Motor Vehicles Act 1949, s 10 (4A).

[6] Exhibit P-1 in the Local Court.

[7] Traffic Act 1987, s 31 (2).

[8]The offending on 5 March 2021 occurred approximately 10 months into the appellant’s disqualification period. However, the order for disqualification was made by the Katherine Local Court on 27 August 2020, and had been backdated to 18 May 2020. The appellant’s driving while disqualified was 6½ months after he had been sentenced.

[9] Transcript, 07/04/2021, p. 3.

[10] Transcript, 07/04/2021, p. 5.

[11] Transcript, 07/04/2021, p. 6.1.

[12]Transcript, 07 April 2021, p. 7.2. Defence counsel had earlier acknowledged that the appellant had “one prior for a similar offence” at p. 5.3.

[13]Transcript, 7 April 2021, p. 7.4.

[14] Appellant’s written submissions, par 6.

[15]Defence submissions, par 6.

[16]See, for example, Thomas v Henderson [2001] NTSC 54; 162 FLR 395 at [19]; Andalong v Jones [2019] NTSC 87 at [26].

[17]Community based orders are referred to in detail in Part 3, Division 4A of the Sentencing Act 1995. Community custody orders are referred to in Part 3, Division 5, Subdivision 2A of the Sentencing Act 1995. Both sentencing options were introduced by amending Act 24/2011.

[18] Hansard, Thursday 5 May 2011, p. 7975: second reading speech made by Mr McCarthy, Minister for Correctional Services, for the Justice (Corrections) and Other Legislation Amendment Bill (Serial 167).

[19]Ibid. p. 7974.

[20] Ibid. p. 7975.

[21]Mamarika v Ganley [2013] NTSC 6 at [23] – [28].

[22]S 8E(2)(a) and s 48E(3) Sentencing Act.

[23]S 48E(2)(b) Sentencing Act.

[24] S 48E(5) Sentencing Act.

[25]S 48F(1) Sentencing Act.

[26] Truong v The Queen , [2015] NTCCA 5; 35 NTLR 186, at [37].

[27]Hanks v The Queen [2011] VSCA 7 at [22].