Parry v Firth
[2020] NTSC 37
•18 June 2020
CITATION:Parry v Firth [2020] NTSC 37
PARTIES:PARRY, Dwayne
v
FIRTH, Justin
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 14 of 2020 (22011321)
DELIVERED: 18 June 2020
HEARING DATES: 4 June 2020
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL LAW – APPEAL – SENTENCE – PROCEDURAL FAIRNESS – whether the sentencing Judge erred in failing to indicate that was contemplating a term of imprisonment – where the prosecution had not sought a term of imprisonment – where the sentencing Judge indicated he was contemplating more than a fine – where the sentencing Judge sought further submissions – No breach of procedural fairness.
CRIMINAL LAW – APPEAL – SENTENCE – whether the sentencing Judge erred in failing to consider and exclude alternatives to imprisonment – where the sentencing Judge failed to provide adequate reasons for excluding these alternatives as viable sentencing dispositions – Where the sentencing disposition was not a proportionate sentencing disposition given the age and circumstances of the appellant – Appeal allowed.
CRIMINAL LAW – APPEAL – SENTENCE – Whether sentence was manifestly excessive – where lower range form of theft committed by a youthful offender – where offender had no prior criminal history – Appeal allowed.
Criminal Code (NT) s 210(1), s 210(2)
Local Court (Criminal Procedure) Act 1928 (NT) s 176.
Sentencing Act (NT) s 6A
Amado v The Queen [2011] NSWCCA 197; Bukulaptji v The Queen [2009] NTCCA 7, 24 NTLR 210; Dinsdale v The Queen (2000) 202 CLR 321; Flynn v Apuatimi [2019] NTSC 1; G v Bourne [1991] NTSC 51; 105 FLR 52; Garling v Firth [2016] NTSC 41; Gumurdul v Reinke [2006] NTSC 27; 161 A Crim R 87; House v The King [1936] HCA 40, 55 CLR 499; Janima v Edginton [1995] NTSC 36; Pantorno v The Queen [1989] HCA 18; 166 CLR 466; R v Palliaer (1983) 35 SASR 569; Salmon v Chute (1994) 4 NTLR 149; Sharpe v Eaton [2011] NTSC 99; The Queen v Kilic [2016] HCA 48; Turner v Trenerry [1997] NTSC 21; Van Toorenburg v Westphal [2011] NTSC 31; Wanambi v Thompson (1994) 120 FLR 243; Wilson v Hill [1995] NTSC 2; Wong v The Queen [2001] HCA 69. 207 CLR 581; Considered.
REPRESENTATION:
Counsel:
Appellant:P Coleridge/ J Lumsden
Respondent: H Riley
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: BLO2004
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINParry v Firth [2020] NTSC 37
No. LCA 14 of 2020 (22011321)
BETWEEN:
DWAYNE PARRY
Appellant
AND:
JUSTIN FIRTH
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 18 June 2020)
Introduction
This is an appeal against a sentence imposed by the Local Court on 3 April 2020. The appellant was dealt with for one count of stealing contrary to s 210 of the Criminal Code Act 1983 (NT).
The appellant appeared in the Local Court via video link from the Darwin Correctional Centre on 3 April 2020. He was arrested on 2 April 2020 and spent two days and one night in custody before appearing in Court. He pleaded guilty to the single charge of stealing and was convicted and sentenced to 1 month imprisonment commencing on 2 April 2020. The term of imprisonment was suspended from 3 April 2020 with an operational period of 12 months. The learned sentencing Judge imposed a single condition: that the appellant not possess, purchase or consume alcohol for 3 months and submit to breath analysis at the request of police.
The Notice of Appeal filed on 9 April 2020 pleaded a single ground of appeal namely, that the sentence was manifestly excessive. In submissions filed on 21 May 2020, counsel for appellant gave notice of an amendment to the Notice of Appeal by way of the addition of three alleged errors on the part of the sentencing Judge namely:
(a) Failing to indicate that he was contemplating a term of imprisonment in circumstances where other options were reasonably available and the prosecution had not sought a term of imprisonment;
(b) Failing to consider and exclude alternatives to imprisonment;
(c) To the extent that the sentencing Judge did consider such alternatives, failing to provide adequate reasons for excluding these alternatives as viable sentencing dispositions
Proceedings before the Local Court
The prosecution facts read to the Local Court were that on 30 March 2020 the appellant and a co-offender attended the Beachfront Hotel bottle shop. The appellant removed two 1 litre bottles of Jack Daniels bourbon from the shop’s shelves and walked to the front counter. The co-offender removed two 1 litre bottles of Bundaberg rum from the shelves and placed them on the front counter. As the co-offender placed the two bottles of rum on the counter, the appellant turned and ran from that location with the two bottles of Jack Daniels, without making any payment.[1]
Staff at the Beachfront hotel gave chase. The appellant was located on Casuarina Drive and his actions were captured on the Beachfront CCTV system.
At 8:40am on 2 April 2020, the appellant was located at a residence in Jingili. The appellant was placed under arrest and taken to the Palmerston watchhouse where he was processed and taken to the cells. He declined to participate in a record of interview with police. He was later charged and bail was considered, although as above, he was remanded in custody.[2]
On the appellant’s behalf the sentencing Judge was told the offending occurred in the context of a young man who was intoxicated, had no money and made a poor decision in those conditions. He had been drinking with friends in the Nightcliff and Rapid Creek area and made the decision to steal from the drive-through Liquor store.[3]
As to the appellant’s subjective circumstances, the sentencing Judge was told the following. The appellant was 18 years old, was raised by his father and had a transient upbringing. He finished high school in year 10 and then attended the Batchelor College to become a mechanic. At the time of the offending, he was looking for work whilst living with his cousin and her four children in Jingili. He helps his cousin with the children especially the youngest two. His cousin and father are in receipt of Centrelink payments. He receives some support from his father. As to the appellant’s future, the Court was told he would apply for Centrelink while he looked for a job as a mechanic. He will focus on finding new friends. He was scared when he was in custody for the first time, given he was remanded upon arrest for the offending.
The Local Court was told the appellant had no criminal history. He was dealt with on that basis. It is understood that was the belief of both parties at the time. During the course of the appeal, counsel advised that belief may have been a mistake. Both parties submitted the appeal should proceed on the basis of the evidence before the Local Court given the prohibition against receiving evidence other than documents or exhibits that were before the Local Court.[4] Consequently these proceedings are to be determined on the basis of the appellant having no previous court matters. The position may well be different if re-sentencing the appellant becomes relevant. I am not at all comfortable proceeding on an incomplete or incorrect basis; however, in the light s 176 of the Local Court (Criminal Procedure) Act and the position of the parties, the appeal must proceed in this manner. The appeal is to be conducted on the basis of the material before the Local Court. Thus far, there has been no application to admit fresh evidence.
Given the state of material in the Local Court and, it is understood, the state of knowledge of counsel at the time, counsel for the appellant submitted that punishment by way of a fine would be appropriate.
In response, the sentencing Judge indicated he did not agree with counsel for the appellant’s submissions and remarked:[5]
I’m not with you, Mr Lumsden. This sort of offending is so grotesquely prevalent and is so blatant that more is required. Do you wish to address me further, given that indication?
Counsel did not make a further submission, but rather replied “As your Honour pleases”. His Honour then recited the facts and remarked:
So clearly, he went in there with the previously formed intention of stealing that alcohol. He didn’t have money I’m told and he then thought because I’m drunk and because I like it and I want to keep drinking, I’m allowed to go in and steal this alcohol. This sort of bare-faced effrontery is offensive in itself, but the prevalence of it in the Northern Territory is another matter of enormous concern.
His Honour referred to the offending being in company as an aggravating circumstance,[6] which plainly it was and the importance of both personal and general deterrence. His Honour also commented on the appellant’s young age, 18 years old, with no criminal history and that he had pleaded guilty at the earliest opportunity. Although the Judge told the Court he gave full weight to those matters, he said “they are counter balanced by the effrontery of the offending and its prevalence in all the circumstances”.[7]
General principles
It is fundamental that a judge’s exercise of the sentencing discretion is not disturbed on appeal, unless error is shown. The presumption is that there is no error.[8] In terms of the manifestly excessive ground, an appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. Either error must be shown, or if there is no patent error, House v The King[9] recognises sentencing error may be inferred if the sentence is unreasonable, plainly unjust or manifestly wrong.[10] In Wong v The Queen,[11] Gaudron, Gummow and Hayne JJ referred to the “residuary category of error” which, in the area of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In that category of case, appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases, but rather:[12]
Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
Although not ultimately determinative of the question of manifest error, comparative sentences may be of assistance, even though there are obvious limitations. In The Queen v Kilic[13] the High Court said similar sentences may provide a yard stick which assists in achieving consistency. A sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious to the worst category.[14]
I will deal briefly with the grounds alleging specific error.
(a) Failing to indicate a term of imprisonment was being contemplated where other options were reasonably available and the prosecution had not sought a term of imprisonment.
While it is undoubtedly the case, as counsel for the respondent argued, that a term of imprisonment was a possibility, that possibility must be regarded as remote when both the gravity of the offence and the subjective circumstances of the offender are rationally assessed. The maximum penalty for stealing which is not the aggravated form of stealing[15] is imprisonment for seven years.[16] Plainly there may be a wide variation between the circumstances of offending and offenders; however, it could not be said this offending by a youthful first offender would be likely or expected to attract a term of imprisonment.
Counsel for the respondent drew this Courts attention to Wanambi v Thompson[17] where in response to a similar ground of appeal concerning a sentence for charges of unlawful entry and associated offending Kearney J said:
In the present case, a sentence of immediate imprisonment was a disposition expressly contemplated by the Code. Defence counsel is expected to be familiar with all the sentencing alternatives open for the offences in question. Here defence counsel knew or ought to have known that a custodial disposition was open to the Court; it was a matter for counsel as to whether he should address his Worship on the reasons why no such disposition should be made.
It might be observed the offending in question which Kearney J was discussing concerned multiple charges of a more serious generic kind.
While all criminal conduct is concerning including offending of this kind, the facts of the offending together with the circumstances of the offender place this offending at the lower end of the spectrum. Given those factors and that there was no submission by the prosecution to the contrary, it is a fair observation that counsel for the appellant at the time was most likely not contemplating that a term of imprisonment would be imposed when he made submissions on behalf of the appellant.
It is readily accepted a sentencing hearing must be conducted in accordance with the requirements of procedural fairness.[18] Although a term of imprisonment was not an expected outcome in the circumstances, the fact the Judge indicated he was contemplating more than a fine and sought further submissions was a sufficient indication to counsel to fulfil the requirements of procedural fairness in the circumstances. While it may not have been resoundingly clear that a term of imprisonment was being contemplated, counsel was effectively warned that further submissions were required if there was not to be a more severe sentencing outcome than a fine. While counsel may have been surprised by the outcome, he was adequately warned that the Judge had another disposition in mind.
While the fact that the prosecutor did not make submissions calling for imprisonment may have added to the shock value experienced by counsel for appellant when the sentence was passed, in these circumstances, it does not mean the Court failed to accord procedural fairness. When confronted with circumstances such as these, when the Judge asks for further persuasion, it may be prudent for counsel to request that the matter be stood down so thought can be given to an appropriate submission.
I will not uphold this ground.
(b) and (c) Failure to consider and exclude alternatives to imprisonment and failure to provide adequate reasons for excluding these alternatives as viable sentencing dispositions.
It is convenient to deal with these grounds together. Failure to mention a sentencing principle or disposition does not mean that a Judge has overlooked the principle or disposition.[19] It may usually be implied in the intuitive synthesis process that all reasonable dispositions appropriate to the circumstances have been considered.[20] The imposition of an actual term of imprisonment, at the conclusion of the intuitive synthesis process is generally or in part as a result of imprisonment being considered the sanction of ‘last resort’.[21] While expressed in different ways, essentially imprisonment is only to be imposed when it is the proportionate sentencing response to the particular offending and offender.
Although in this case the term of imprisonment was suspended after two days on remand, which ameliorated the harshness of the sentence, s 40(3) of the Sentencing Act provides that a court “must not” impose a suspended sentence of imprisonment “unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances”. A large body of case law expresses the same principle.[22] I respectfully agree with the approach taken in R v Palliaer:[23]
The proper approach was to decide first whether there was any appropriate alternative to imposing a sentence of imprisonment; if the answer to that was in the negative then to decide what was the proper term of imprisonment to be imposed; and then, and only then, to decide whether it would be appropriate or inappropriate to suspend the term of imprisonment.
While in many cases it will be obvious that a term of imprisonment, suspended or not, is the only appropriate sentence and therefore no particular reasons to that effect are required, in this case it was not self-evident that a term of imprisonment was warranted. The sentence required an adequate explanation as to how the determination was made, especially why other alternatives were dismissed.[24] It is unknown why consideration could not have been given to a bond with or without conditions; a substantial fine or an assessment for community work to see if it was a viable alternative.
The descriptions of the character of the offending, particularly how blatant it was and that there was a co-offender present are reasonable considerations in assessing the gravity of the offending. Similarly it was appropriate to consider the need for general and specific deterrence; however, this was a case where there was a “quantum leap” as Olsson AJ put in Gumurdul v Reinke[25] from a lesser disposition to imprisonment, albeit suspended. There is no reason that can discerned on why a lesser disposition than imprisonment would not be appropriate. The conditions of the suspended sentence put the appellant at risk of actual imprisonment if there was a conditional breach or breaches. The sentencing disposition was not a proportionate sentencing disposition given the age and circumstances of the appellant.
I will uphold grounds (b) and (c).
Manifestly excessive
As above, when considering this ground the principles relevant to discretionary decisions apply. There is no tariff for offending of this kind. Both counsel have drawn on previous appeal cases in this Court to support their positions on what an appropriate penalty may be.[26] Ultimately, each case turns on its facts, but this is a lower range form of theft committed by a youthful offender.
It is acknowledged the offending is somewhat confronting and inherently dishonest, well worthy of sanction in a criminal court. While the offending would be difficult and frustrating for the victim, the value of the goods is unlikely to be in the higher range. On the other hand, the value of the goods stolen is not stated in the facts, nor on the information. As above, it must also be remembered the appellant is 18 years old. At his age, he is properly regarded as a youthful offender which has a strong bearing on the penalty to be imposed. Rehabilitation in these circumstances is more important than general deterrence as it benefits the community as well as the youthful offender. He had spent two days and one night in adult custody. As far as can be discerned the appellant was attempting to improve his difficult social circumstances. In all of the circumstances a term of imprisonment was not a proportionate response to the offending.
I will uphold this ground.
Orders
1. The appeal is allowed.
2. The sentence passed by the Local Court on 3 April 2020 is quashed.
3. The matter is re-mitted for hearing afresh in the Local Court before a differently constituted Court.
---------------------------------
[1] Transcript of proceedings, Police v Dwayne Parry (Northern Territory Local Court, 22011321, 3 March 2020) at 4.
[2] Transcript of proceedings, Police v Dwayne Parry (Northern Territory Local Court, 22011321, 3 March 2020) at 4.
[3] Transcript of proceedings, Police v Dwayne Parry (Northern Territory Local Court, 22011321, 3 March 2020) at 4.
[4] Local Court (Criminal Procedure) Act 1928 (NT) s 176.
[5] Transcript of proceedings, Police v Dwayne Parry (Northern Territory Local Court, 22011321, 3 March 2020) at 6.
[6] Sentencing Act 1995 (NT) s 6A.
[7] Transcript of proceedings, Police v Dwayne Parry (Northern Territory Local Court, 22011321, 3 March 2020) at 6.
[8] Salmon v Chute (1994) 4 NTLR 149.
[9] [1936] HCA 40, 55 CLR 499 at 504-5.
[10] House v The King [1936] HCA 40, 55 CLR 499 at 504-5.
[11] [2001] HCA 64, 207 CLR 584.
[12] Wong v The Queen [2001] HCA 69. 207 CLR 581 at [58].
[13] [2016] HCA 48.
[14] The Queen v Kilic [2016] HCA 48 at [19].
[15] Criminal Code 1983 (NT), s 210(2).
[16] Criminal Code 1983 (NT), s 210(1).
[17] (1994) 120 FLR 243.
[18] Pantorno v The Queen [1989] HCA 18; 166 CLR 466, 472-473, per Mason CJ and Brennan J; Wilson v Hill [1995] NTSC 2 at 20; Garling v Firth [2016] NTSC 41, [10]; G v Bourne [1991] NTSC 51; 105 FLR 52.
[19] Sharpe v Eaton [2011] NTSC 99 at [17]; Van Toorenburg v Westphal [2011] NTSC 31 at [23].
[20] Janima v Edginton [1995] NTSC 36, per Mildren J at [5].
[21] Turner v Trenerry [1997] NTSC 21 at [43].
[22] Dinsdale v The Queen (2000) 202 CLR 321 at 346; Bukulaptji v The Queen [2009] NTCCA 7, 24 NTLR 210 at 217.
[23] (1983) 35 SASR 569 at 571.
[24] Amado v The Queen [2011] NSWCCA 197; Ryan v Malagorski [2012] NTSC 55 at [13]; Owens v Young [2013] NTSC 49 at [46].
[25] [2006] NTSC 27; 161 A Crim R 87.
[26] For example Ryan v Malagorski [2012] NTSC 55; Munkara v Moss JA 1 of 2014 (21356827), 17 April 2014; Flynn v Apuatimi [2019] NTSC 1 at [37].
0
17
0