Rigby v Benfell
[2020] NTCA 9
•26 June 2020
CITATION:Rigby v Benfell [2020] NTCA 9
PARTIES: RIGBY, Kerry
v
BENFELL, Jared
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 3 of 2019 (21813261)
DELIVERED: 26 June 2020
HEARING DATE: 5 June 2019
JUDGMENT OF: Grant CJ, Blokland J and Graham AJ
CATCHWORDS:
CRIME – Appeals – Appeal against sentence – Misapplication of principle
Appeal from decision of the Supreme Court which allowed the respondent’s appeal against a conviction recorded by the Local Court for the offence of driving a vehicle with a medium range breath alcohol content – Supreme Court in error in quashing the conviction and resentencing the respondent to a fine – Not incumbent on the sentencing judge, having determined that the circumstances of the offending were not “extenuating circumstances” within the meaning of s 8(1)(c) of the Sentencing Act 1995 (NT), to give further and separate consideration to those circumstances when determining whether or not to record a conviction – No error by sentencing judge in finding there was insufficient evidence to establish that a conviction would have a specific detrimental impact on the respondent’s career as a commercial pilot – Recording of conviction not manifestly excessive – Appeal dismissed in the exercise of the residual discretion – Crown interest sufficiently vindicated by reasons on appeal – Nature and consequences of error do not require reinstatement of conviction.
Traffic Act 1987 (NT) s 22(1), s 51
Sentencing Act 1995 (NT) s 8(1)
Supreme Court Act 1979 (NT) s 51, s 54, s 55Carnese v The Queen [2009] NTCCA 8, Cobiac v Liddy (1969) 119 CLR 257, Cumberland v The Queen [2020] HCA 21, Director of Public Prosecutions (Vic) v Papazisis (1991) 51 A Crim R 242, Everett v The Queen (1994) 181 CLR 295, Fillipou v The Queen (2015) 89 ALJR 776, Fullalove (1993) 68 A Crim R 486, Giakas [1988] VR 973, Green v The Queen (2011) 244 CLR 462, Griffiths v R (1977) 137 CLR 293, Hales v Adams [2005] NTSC 86, Hatzimihal v Wesphal [2011] NTSC 61, Jones v Morley (1981) 29 SASR 57, Lacey v Attorney-General (Qld) (2011) 242 CLR 573, Malvaso v The Queen (1989) 168 CLR 227, Pettingill (1985) 21 A Crim R 130, R v Allinson (1987) 49 NTLR 38, R v Borkowski (2009) 195 A Crim R 1, R v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488, R v Lancaster (1991) 58 A Crim R 290, R v Olbrich (1999) 199 CLR 270, R v Wilson (2011) 30 NTLR 51, Ryan v The Queen (2001) 206 CLR 267, Stewart v The Queen [2012] NSWCCA 183, Theodoros v Holmes (1989) 50 SASR 373, Toohey v Peach (2003) 141 A Crim R 437, referred to.
A Freiberg, Fox &Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition).
REPRESENTATION:
Counsel:
Appellant:S Robson
Respondent: J Tippett QC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: Maleys Barristers & Solicitors
Judgment category classification: B
Number of pages: 25
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINRigby v Benfell [2020] NTCA 9
No. AP 3 of 2019 (21813261)
BETWEEN:
KERRY RIGBY
Appellant
AND:
JARED BENFELL
Respondent
CORAM: GRANT CJ, BLOKLAND J and GRAHAM AJ
REASONS FOR JUDGMENT
(Delivered 26 June 2020)
THE COURT:
This is an appeal from an ex tempore decision of the Supreme Court delivered on 17 January 2019 which found that the Local Court had erred in recording a conviction for a medium-range drink-driving offence. The respondent was resentenced to a fine without conviction.
The three issues which arise on this appeal are:
(a)whether it was incumbent on the Local Court, having determined that the circumstances of the offending were not “extenuating” within the meaning of s 8(1)(c) of the Sentencing Act 1995 (NT), to give further and separate consideration to those circumstances in determining whether or not to record a conviction;
(b)whether the Local Court fell into error in finding there was insufficient evidence to establish that a conviction would have a specific detrimental impact on the respondent’s career as a commercial pilot; and
(c)whether the recording of a conviction was manifestly excessive.
Consistent with the preliminary indications given at the conclusion of the hearing of this appeal, we have found that there was no error on the part of the Local Court in recording the conviction and the Court at intermediate level was wrong to find there was. However, factors relevant to the exercise of the residual discretion militate against the reinstatement of the conviction.
Procedural history
On 19 October 2018, the respondent pleaded guilty to the offence of driving with a medium range breath or blood alcohol content contrary to s 22 of the Traffic Act1987 (NT).
The offence was committed on 16 March 2018 in the following circumstances.
The day before the offending took place the respondent had finished work at Ngukurr and stopped overnight in Jabiru on his way to Darwin. While there he celebrated with a friend and consumed a large quantity of alcohol. The following morning the respondent continued driving to Darwin. Shortly after 11:00 am he was driving inbound on the Stuart Highway near the corner of Howard Springs Road. The respondent began to change lanes and in the course of doing so his vehicle struck another vehicle which he had failed to see. This collision caused the other vehicle to run off the road and crash into a tree. The vehicle was extensively damaged and the driver sustained significant injuries which required his hospitalisation for three days.
Police conducted a roadside breath test on the respondent which returned a positive reading for alcohol. The respondent was then arrested and conveyed to the Palmerston Police Station. At 12:30 pm the respondent provided a sample which returned a result of 0.094 grams of alcohol per 210 litres of exhaled breath.
On 2 November 2018, the Local Court found the offence proved, convicted the respondent, and imposed a fine of $500 with a victim’s levy of $150. The respondent was also disqualified from driving for the minimum period of six months by operation of s 22(3) of the Traffic Act.
The respondent lodged an appeal in the Supreme Court which was heard on 17 January 2019. On that same day, the appeal was allowed; the sentence imposed by the Local Court was quashed; the respondent was re-sentenced to a fine of $1000 without conviction; the disqualification of the respondent’s drivers licence for six months was affirmed; and the respondent to the appeal (who is the appellant in these proceedings) was ordered to pay the respondent’s costs as taxed or agreed.
Although the only ground pleaded in the Notice of Appeal was that the “sentence was manifestly excessive with regard to conviction”, during the hearing of the appeal that ground was supplemented by the assertion of specific error on the part of the Local Court.
The Supreme Court allowed the appeal on the grounds that:
(a) in determining whether or not to record a conviction, the Local Court failed to give proper consideration to the fact that the respondent’s intoxication was the result of drinking the night before rather than immediately prior to driving;
(b) in determining whether or not to record a conviction, the Local Court found erroneously that there was insufficient evidence to establish that a conviction would impact on the respondent’s career as a commercial pilot; and
(c) the recording of a conviction made the overall sentence manifestly excessive.
The determination whether to record a conviction
Section 8(1) of the Sentencing Act 1995 (NT) provides:
Conviction or non-conviction
(1) In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:
(a) the character, antecedents, age, health or mental condition of the offender; and
(b) the extent, if any, to which the offence is of a trivial nature; and
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
A number of principles may be distilled from the authorities which deal with the operation of that provision.
First, a conviction operates as a significant act of legal and social censure[1] and the determination whether or not to record a conviction is significant for that reason alone.
Second, the three limbs of s 8(1) of the Sentencing Act operate disjunctively. The sentencing court does not have to find good character, triviality and extenuating circumstances before making a “non-conviction” order.[2] However, the sentencing court must give consideration to all three limbs in determining the matter.
Third, the provision is inclusive rather than exhaustive of the matters properly taken into account in the exercise of the discretion. The sentencing court should properly give consideration to all relevant circumstances. So, by way of example, even where an offender’s character, antecedents and age might militate in favour of a “non-conviction” disposition, it will still be necessary for the sentencing court to weigh those matters against the seriousness of the offending.
Fourth, the threshold requirement for any decision not to record a conviction is some satisfaction that one or more of the prescribed considerations, and the other circumstances of the case, would “provide a sufficient ground for a reasonable man [or woman] to hold that it would be expedient to extend the leniency which the statute permits”.[3] The sentencing court must then actively determine whether the circumstances support the exercise of the discretion in that manner.[4] The existence of a prescribed state of affairs is not a “mere peg” on which to hang leniency.[5]
Fifth, even where character and antecedents might militate in favour of a “non-conviction” disposition, the recording of a conviction may be necessary where the offender is of mature age and deterrence is being given weight, especially in relation to breaches of regulatory or social legislation.[6]
The circumstances of the respondent’s intoxication
The circumstances in which the respondent came to be driving with a prohibited blood alcohol content have been described in general terms at the outset of these Reasons. On appeal, the Court at intermediate level found that the Local Court erred in failing to take those circumstances into account in determining whether or not to record a conviction.[7] So far as can be discerned from the ex tempore reasons of the Court at intermediate level, the relevant circumstances were:
(a)that on the previous evening the respondent was celebrating a friend’s birthday and recent promotion;
(b)that the respondent was not an experienced drinker, and on this occasion drank a lot more than he normally would;
(c)that the respondent went to bed and slept before getting up and continuing his journey in the morning, and assumed, albeit wrongly, that he was sufficiently sober to drive; and
(d)that the respondent’s conduct could be distinguished from circumstances in which a person drank a considerable amount and then immediately got into a vehicle and drove.
The Court at intermediate level found that “those aspects would have been relevant in assessing the extent to which the particular offending was of a trivial nature, particularly when compared to other [drink-driving] offending”. The Court went on to say that although the respondent’s offending “cannot be said to be trivial, it was more trivial than is often the case”. Having made those observations, the Court cited a passage from the decision of the Court of Criminal Appeal in Carnese v The Queen[8] to the effect that the offending there under consideration was not “blatant offending” and was offending “resulting from ignorance”.[9]
The sole basis on which the Court at intermediate level found that the sentencing judge had not taken those circumstances into account in determining whether or not to record a conviction was by inference drawn from the following passage in the ex tempore reasons of the sentencing judge:[10]
[The respondent] has no prior convictions. He is 23 years of age. He has an excellent work history. He is a young man who is clearly contributing to the community in a number of ways and he comes before this court today seeking not to have convictions recorded against him. I have found him guilty for the offence.
It is not unusual though for people to come before this court in similar circumstances to [the respondent] who do not – people who do not have prior convictions, people who are caught in circumstances where they under-estimate their capacity to drive after being at a party or drinking alcohol and then they get behind the wheel.
Mr McMaster submits to me that this case is different because he didn’t get in his car and drive straight after he’d been drinking. He went home, he slept, he got up and he drove, believing that he was okay. But, clearly, he was not, because his blood alcohol reading the next day was mid-range and it indicated that he had obviously drunk quite a lot the night before. On behalf of his client, Mr McMaster submits that his inexperience with drinking was part of the reason why he underestimated why he was still over the limit.
Another reason that Mr McMaster has submitted that I should not record a conviction against him is that a conviction could seriously impact on his prospects for employment with a major airline in the future. I don’t have to find that all three matters are met under s 8 of the Sentencing Act in order to determine that a conviction should not be recorded. I’ve already indicated I do not find the offences trivial, but I do find that paragraph 8 [sic] is clearly met in this case.
In relation to paragraph (c), whether any extenuating circumstances in relation to the offence and how the offence was committed are met, the only matter perhaps could be that he was a person who didn’t drive immediately after drinking but went to bed and miscalculated. I’m not sure that that would be an appropriate factual matter to consider. So, perhaps the issue really is whether or not recording a conviction could impact on his future employment.
That passage deals expressly with the circumstances identified by the Court at intermediate level as “the matters the night before”. So far as the application of s 8(1) of the Sentencing Act was concerned, the sentencing judge found first that the offending was not of a “trivial” nature within the meaning of paragraph (b) of that section. The sentencing judge then concluded, in an obvious reference back to the fact that the respondent was of good character with an excellent work history, that the respondent “clearly met” paragraph (a)[11] of that section. The sentencing judge then found that although the respondent’s misconception concerning his blood alcohol content was not an extenuating circumstance, the effect of a conviction on his employment prospects might be.
The essence of the finding at intermediate level was that although the sentencing judge had determined that the respondent’s misconception and the surrounding circumstances were not “extenuating circumstances” within the meaning of s 8(1)(c) of the Sentencing Act, it was then incumbent on the sentencing judge to consider that matter “independently of s 8(1) in the process of determining whether to record a conviction”.[12] That reasoning was plainly wrong.
First, the chapeau to s 8(1) of the Sentencing Act extends in its terms to all “the circumstances of the case”. There is nothing “independently” to consider. Second, the finding of the Court at intermediate level was that the circumstances identified had to be considered first, to determine whether they were “extenuating”, and then secondly, to determine whether they militated against recording a conviction even if they were not “extenuating”. Such a process would be redundant, artificial and contrary to the processes of intuitive synthesis. Third, the finding at intermediate level turned on an implicit assumption that the sentencing judge had failed to consider the circumstances identified as part of that intuitive synthesis. That assumption was not open. It could not be concluded that having given particular consideration to the circumstances for one purpose, the sentencing judge excluded them from consideration for all other purposes. A sentencing judge is not required to recite each matter which has been taken into account in the synthesis, nor to give a reason for every step taken in the process of determination.[13] Sentencing remarks are not properly interpreted on the assumption that a failure to make specific reference to a particular factor indicates that it has not been taken into account.[14] All that is required is that the reasons disclose with tolerable clarity why a disposition was made[15], which the sentencing remarks in this case obviously did.
Before leaving this ground, it is necessary to say something about the characterisation of the respondent’s offending by the Court at intermediate level as “not blatant”.[16] In submitting that a conviction should not be recorded, the defence at first instance did not place primary importance on the delay between the respondent’s consumption of alcohol and the subsequent resumption of the journey to Darwin.[17] The primary focus was on the respondent’s good character and future employment prospects. The concept of blatancy did not assume any real significance until the hearing of the appeal at intermediate level, and was drawn from the passage from Carnese v The Queen[18] referred to above. It should be noted that the offences which the Court in that case considered were not “blatant offending”, and to have “result[ed] from ignorance”, involved the possession of a steroidal drug used by the appellant to treat injuries to his dogs. Possession of the drug was legal if dispensed by a veterinary surgeon, and the appellant genuinely believed his possession to be legal. The appellant was only exposed to criminal penalty because he had obtained the pills from an associate rather than directly from a veterinary surgeon.
The offence of driving with a prohibited blood alcohol content is a regulatory offence[19] which, for reasons of public policy and community protection, is not governed by the ordinary principles of criminal responsibility under Part II of the Criminal Code. An offender’s subjective belief concerning his or her fitness to drive is irrelevant to the commission of the offence, and does not mitigate the offending save in the most exceptional cases. It is a common feature of the offence that the driver has miscalculated his or her fitness to drive after consuming alcohol, whether immediately prior to driving or some time before. The apprehension of “night before” drinkers, and the conduct of random breath testing for that purpose, is a matter of common knowledge. For these reasons, there is little scope for variation in the objective seriousness of this kind of offending. Only in very exceptional cases, such as medical emergency, will the reasons for driving give rise to extenuating circumstances. The drawing of a distinction between “blatant” and “not blatant” offending was ill-adapted to this context.
It should also be noted that the respondent was 23 years of age at the time the offence was committed and was working as a pilot for a regional aviation company. Given that profile and the responsibility which the occupation entailed, it should not be accepted that the respondent was immature in some relevant sense or unaware of the fact that it takes some time for the body to eliminate alcohol after its last consumption. The adage “12 hours from bottle to throttle” is commonly used in the airline industry in recognition of that process and the risk it presents of unwittingly flying with an elevated blood alcohol content.
Moreover, the offending was in a sense aggravated by the fact that it was detected as a consequence of a collision which resulted in the hospitalisation of the driver of the other vehicle. This is not to say that those consequences formed an element of the offence or that the respondent is to be punished for them. It is only to say that at the material time the respondent was driving on the road when he should not have been, and failed to notice the presence of the other vehicle when changing lanes.
Impact on career as a commercial pilot
Every sentencing exercise is conducted on the understanding that the recording of a conviction may in potential lead to adverse consequences in such matters as the future refusal of occupational, employment and commercial rights or licences; a restriction on the offender’s ability to travel; and the ability to take out insurance cover. In determining whether or not to record a conviction, the sentencing court infers as a matter of course that a recorded conviction may have a future impact on the offender’s economic and social well-being in this general and potential sense.[20] Even allowing for those potential consequences, the more serious the offence the less appropriate it is for the sentencing court to decline to record a conviction.[21] Although it cannot be said that a “non-conviction” disposition in relation to an adult offender should be reserved for special or unusual cases, or that there is a presumption a conviction will be recorded, in most cases the nature of the offence is such that a conviction will be imposed.
In cases where the question is more finely balanced, there may be some particular or specific matter which gives rise to a tension between the public interest in recording a conviction and the beneficial effect for the offender of not recording a conviction or, conversely, the prejudicial effect of doing so. For example, a conviction might necessarily lead to the loss of a licence which the offender presently holds and which is necessary for his or her continuing employment, as was the case in Carnese. In the matter the subject of this appeal, the respondent asserted that a particular or specific detriment would flow from the recording of a conviction in the form of a prejudicial impact on his ability to secure employment as a pilot with a major airline carrier.
Unlike the sentencing legislation in some other jurisdictions[22], s 8(1) of the Sentencing Act makes no specific reference to the impact of a conviction on the offender’s present employment or future employment prospects. It is nevertheless a factor which forms part of the “circumstances of the case” within the meaning of s 8(1) of the Sentencing Act, and in some matters may operate as an extenuating circumstance.[23] Where an assertion of particular or specific detriment of this type is made by an offender, the onus is on the offender to prove that matter on the balance of probabilities. This is no more than a specific application of the general rule that a sentencing judge may not take facts into account for sentencing purposes in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt; and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour.[24] As Freiberg states:[25]
An offender who wishes a court to take into account any possible loss of employment either generally, or in a particular field, as a reason for not formally recording a conviction should, in the absence of agreement with the prosecution to that effect, call evidence to prove the loss, or the likelihood of prejudice. Reliance on what counsel asserts to be the fact may not be sufficient if unaccompanied by documentary or oral evidence.
This principle is illustrated in the decision of the South Australian Supreme Court in Theodoros v Holmes[26], in which the question was whether a conviction would give rise to “jeopardy in employment”. The particular assertion was that a conviction would bar the appellant from entry to the finance and security industry. The Court ultimately held that the magistrate must have had clearly in mind the possible effect of a conviction on employment generally, but that risk was not sufficient to have “diverted the magistrate from the course which he did follow”. That course was the recording of a conviction. In relation to the evidentiary issue, the Court stated:[27]
If a defendant wishes a Court to take into account that he may not get employment or may lose employment, either generally or in a particular field, then in default of concession by the Crown or the complainant, he must call evidence to prove it or to prove the likelihood of it.
In some jurisdictions the approach may be influenced by the language of the provision. Section 12(2)(c)(ii) of the Penalties and Sentences Act 1992 (Qld) provides expressly that in exercising the discretion to record or not record a conviction, the sentencing court must have regard to “the impact that recording a conviction will have on the offender’s … chances of finding employment”. Differing views have been expressed as to whether that formulation requires a positive finding that a conviction would have a discernible impact on the chances of finding employment.[28] That divergence of views is not of great significance in this jurisdiction, where the operative provision requires the sentencing court to have regard to “the circumstances of the case”. As already described, the sentencing exercise is always undertaken with regard to the impact recording a conviction may have on the offender’s economic and social well-being in a general sense. However, the onus will remain on the offender to establish any specific or particular impact asserted in that respect.
In the present case, the respondent relied principally upon a reference provided by a family friend who was employed as a pilot with Cathay Pacific Airways. That reference relevantly provided:[29]
I am saddened that a DUI conviction could be a serious impediment to [the respondent’s] career progression. I hope this enthusiastic and promising young man will still be able to pursue his dream.
That reference to a possible impediment was supplemented by various statements made from the bar table by defence counsel during the course of the sentencing proceedings. They included:[30]
I can’t take it higher to say that I have contracts or anything for the court to say that a conviction definitely means he can’t be a pilot, but what I can say, having spoken with the family, is that there are certain commercial airlines who will not consider him for employment as a result of convictions. I haven’t been provided with an exhaustive list.
That submission was not directed specifically to a drink-driving conviction, and on its face extended to convictions of a more serious nature. When questioned by the sentencing judge as to whether there was any specific airline with whom the offender had sought employment which had indicated that a conviction would be an impediment, defence counsel stated:[31]
Well, I understand Cathay Pacific is one of those airlines that it would be a problem for … And that’s how I characterise that and that’s how I understand my instructions from the family to be. As I say, there is no exhaustive list. It’s something that, in a very competitive marketplace, as your Honour can appreciate, may well mean that even at this young age, it puts him right at the bottom of the pecking list and I’m urging the court to exercise in this one instance leniency in that regard.
The sentencing judge accepted that the impact of a conviction on the respondent’s future employment was a “real factor”, before observing that there was no evidence of any specific detriment in the form of losing current employment or losing an immediate employment prospect.
The prosecution did not accept the statements made by defence counsel from the bar table in relation to the consequences of conviction, or the suggestion that there would be a specific prejudice in the absence of evidence to that effect. Nor did the prosecution accept that the possible effect on the respondent’s future career was sufficient to warrant a non-conviction disposition.[32] In particular, the prosecution drew attention to what was said to be a likelihood that an applicant for a commercial pilot’s position would be required to disclose both findings of guilt and convictions to prospective employers. While it was not incumbent on the prosecution to establish that likelihood, the submission drew attention to the paucity of evidence adduced by the respondent in relation to the asserted impact of a conviction on his career prospects.
During the course of the sentencing remarks, the sentencing judge noted that the reference from the family friend provided that a conviction “could be a serious impediment to [the respondent’s] career progression”. The sentencing judge then made the following finding in that respect:[33]
There are many cases that come before the court where submissions are made on behalf of the defence about whether or not a conviction will seriously impact on future employment. Mr McMaster properly concedes this is not a case where there is a contract on foot that would be cancelled or not entered into if a conviction was recorded for drink-driving, because [the respondent] is gainfully employed at the moment at Coffs Harbour and there is a letter from his employer. It speaks in glowing terms of this young man and it also indicates that he is somebody who they, from my reading of it, have no intention of letting go if a conviction is recorded against him.
The only letter or character reference which indicates he could have some difficulties in the future is the letter of Dean Beverley. I don’t find that I don’t accept what he says; however, it is often the case that many people who had convictions recorded against them find that they may have some difficulties with future employment. This particular industry is perhaps an industry that might create more difficulties than others if a conviction is recorded, but I don’t have evidence before me that that is actually the case.
It is the case that frank disclosure in relation to job applications these days is required and criminal conviction checks are made. In this particular case, despite the good character of [the respondent], I don’t find that there is evidence before me that satisfies me that [the respondent] will actually be in a situation of actual detriment if a conviction was recorded against him, and it is in the public interest that general deterrence applies [and] that convictions are recorded in these types of cases.
Making due allowance for the exigencies involved in the delivery of ex tempore reasons in a busy court of summary jurisdiction, that was, with respect, a correct and orthodox approach to the onus which lies on the offender to establish particular or specific prejudice if a conviction were to be recorded, and to the balance properly drawn between the public interest in the imposition of proportionate punishment and the beneficial effect for the offender of not recording a conviction.
The finding of the Court at intermediate level was that the sentencing judge had erred in rejecting the submission that the conviction “could have” an impact on the respondent’s future career, and erred by looking for evidence that a conviction would actually have such an impact. While the Court at intermediate level accepted that evidence that a conviction would actually have such an impact would be a more compelling reason to not record a conviction, it found the sentencing court was not entitled to ignore the possibility of such an impact.[34] That finding was wrong for a number of reasons. First, the onus was on the respondent to provide evidence of any particular or specific impact asserted. Secondly, the sentencing court did not reject the possibility of some prejudicial impact on the respondent’s career prospects in a general sense. Thirdly, the strength of the conclusions that could be drawn in relation to general deleterious effect did not warrant the exercise of the discretion not to record a conviction.
Manifest excess
The final ground of appeal relates to the finding of the Court at intermediate level that the recording of a conviction made the overall sentence manifestly excessive. The principles governing manifest excess are well-settled. In the absence of specific and identifiable error, it is incumbent upon the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.
For the reasons already described in the context of the first two grounds of appeal, the recording of a conviction in this case was clearly and obviously within the bounds of the sentencing discretion.
Residual discretion
The appeal in this case is brought pursuant to s 51 of the Supreme Court Act 1979 (NT). In these circumstances, the section confers a right of appeal on fact and law on the material received in the proceedings out of which the appeal arose, with power to receive further evidence.[35] The dispositive powers of this Court are at least as wide as the powers of the Supreme Court on the appeal to it.[36]
This is not a Crown appeal brought against sentence on the basis of manifest inadequacy. The original appeal from the Local Court was brought by the offender against severity of sentence. Even allowing for that distinction, the primary purpose of the appeal by the original complainant to this Court is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.[37] In giving effect to that purpose, this Court retains a residual discretion to refuse to correct a sentence, including one imposed by the Supreme Court at intermediate level. The Court may “give such judgment as, in all the circumstances, it thinks fit”. [38]
It is of significance that this Court is not precluded from taking into account any element of double jeopardy involving the respondent being sentenced again, as is the Supreme Court when considering an appeal from the Local Court[39], and as is the Court of Criminal Appeal when considering an appeal from the Supreme Court[40]. While the principle of double jeopardy will not defeat an appeal where there is a serious error, it will ordinarily have some moderating effect on the sentence which might be imposed in substitution.[41] In this particular case, that is because the respondent has been first in jeopardy of conviction before the original sentencing court, has gone through proceedings at intermediate level to have that conviction set aside, and has then been placed in jeopardy of conviction for a second time before this Court.[42]
The purpose of the residual discretion in relation to Crown appeals is to avoid injustice which might be caused to the respondent if the appeal is allowed. Even where no account may be taken of any element of double jeopardy, the relevant considerations will include the effect of any further resentencing on progress towards the respondent’s rehabilitation, delay, parity, the totality principle and fault on the part of the Crown.[43]
Although there has been no fault on the part of the Crown in this matter, a significant period elapsed between the offending and the hearing of the appeal before this Court. The offence was committed on 16 March 2018. The respondent was not dealt with in the Local Court until almost eight months later. By that stage, the respondent had left the Northern Territory, moved to New South Wales and taken up employment as a pilot in Coffs Harbour. The appeal to the Supreme Court was heard and determined approximately 2 ½ months after the conviction was recorded. The complainant then instituted the appeal to this Court approximately one month after that. By reason of the listing processes, and through no fault of either party, the matter was not heard by this Court until some five months after it had been determined by the Court at intermediate level.
In all the circumstances of this case we have determined to dismiss the appeal notwithstanding the errors identified in the decision at intermediate level. First, by the time this appeal was heard the respondent had moved on with his life in the understanding that no conviction had been recorded against him. Secondly, the moderating effect of the principle of double jeopardy is such that there is no call for the reinstatement of the conviction. Thirdly, the consequences of the error by the Court at intermediate level were not so serious that the public conscience requires a reversal of those consequences, except in relation to the question of costs. Finally, these Reasons are sufficient to lay down principles for the governance and guidance of lower courts on the issues raised by this appeal in vindication of the Crown interest.
Disposition
We make the following orders:
1.The appeal is dismissed.
2.The order made by the Supreme Court that the “[r]espondent to pay the appellant’s costs as taxed, if not agreed” is set aside.
3.Each party shall bear its own costs of the appeals to the Supreme Court and to this Court.
__________________________
[1] Carnese v The Queen [2009] NTCCA 8 at [16], citing The Queen v McInerney (1986) 42 SASR 111 at 124.
[2]Toohey v Peach (2003) 141 A Crim R 437 at 440-441; Carnese v The Queen [2009] NTCCA 8 at [16].
[3]Cobiac v Liddy (1969) 119 CLR 257 at 276.
[4]Jones v Morley (1981) 29 SASR 57 at 63.
[5]Cobiac v Liddy (1969) 119 CLR 257 at 276.
[6]Hales v Adams [2005] NTSC 86 at [17], citing RG Fox and A Freiberg, Sentencing State and Federal Law in Victoria, (2nd Ed) at 190–193.
[7]Appeal Book (AB) 78.
[8] Carnese v The Queen [2009] NTCCA 8 at [41].
[9] AB 77.
[10] AB 21-22.
[11] The reference to “paragraph 8” in the penultimate paragraph of the extract above is a transcription error and should read “paragraph (a)”.
[12] AB 77.
[13] Giakas [1988] VR 973 at 977.
[14] Pettingill (1985) 21 A Crim R 130 at 133; Stewart v The Queen [2012] NSWCCA 183 at [56].
[15] See, in relation to an order for cumulation, Denham v Hales (2003) NTSC 87 at [15].
[16] AB 77.
[17] AB 17.
[18] Carnese v The Queen [2009] NTCCA 8 at [41].
[19] Traffic Act, s 51.
[20] Fullalove (1993) 68 A Crim R 486 at 493.
[21] Carnese v The Queen [2009] NTCCA 8 at [17]; R v Allinson (1987) 49 NTLR 38; Hatzimihal v Wesphal [2011] NTSC 61.
[22] See, for example, Sentencing Act 1991 (Vic), s 8(1)(c).
[23] See generally R v Lancaster (1991) 58 A Crim R 290 (prospective discharge from the Army was relevant when determining what punishment should be imposed on the offender); Ryan v The Queen (2001) 206 CLR 267 at [54] (loss of employment and forfeiture of superannuation benefits are matters personal to the offender which may be taken into account in determining penalty).
[24]Fillipou v The Queen (2015) 89 ALJR 776; R v Olbrich (1999) 199 CLR 270.
[25] A Freiberg, Fox &Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition) at [1.260].
[26] Theodoros v Holmes (1989) 50 SASR 373.
[27] Theodoros v Holmes (1989) 50 SASR 373 at 377.
[28]See R v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488 at [5]-[7], [72]-[73].
[29]AB 29.
[30]AB 15-16.
[31]AB 16.
[32]AB 19.
[33]AB 22.
[34]AB 78.
[35]Barclay Bros Pty Ltd v Sellers [1994] NTSC 57 at [3]-[4]; Supreme Court Act, s 54.
[36]Ross v Munns [1998] NTSC 33; Supreme Court Act, s 55.
[37]See Green v The Queen (2011) 244 CLR 462 at [1]; Griffiths v R (1977) 137 CLR 293) at 310; Everett v The Queen (1994) 181 CLR 295 at 300; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[20]; R v Borkowski (2009) 195 A Crim R 1 at [70].
[38]Supreme Court Act, s 55(1)(b). The scope of that power accommodates the residual discretion notwithstanding that appeals to this Court are not subject to an express “proviso” allowing the dismissal of an appeal if no substantial miscarriage of justice has actually occurred.
[39]Local Court (Criminal Procedure) Act 1928 (NT), s 177(4). The operation of this provision is confined to appeals from the Local Court under s 163 seeking an increase in sentence. In circumstances where the Supreme Court has allowed an appeal against severity and re-sentences, the subsequent appeal to the Court of Appeal is an appeal against the sentence imposed Supreme Court and is brought pursuant to s 51 of the Supreme Court Act.
[40]Criminal Code 1983 (NT), s 414(1A). The operation of this provision is confined to appeals against sentence with respect to an indictable offence.
[41]Director of Public Prosecutions (Vic) v Papazisis (1991) 51 A Crim R 242; Malvaso v The Queen (1989) 168 CLR 227 at 234.
[42]See in relation to double jeopardy in Crown appeals generally, R v Tait (1979) 46 FLR 386 at 388; R v Raggett (1990) 50 A Crim R 41; R v Ireland (1987) 29 A Crim R 353.
[43]Cumberland v The Queen [2020] HCA 21 at [4]-[6]; Green v The Queen (2011) 244 CLR 462 at [32]; followed in Munda v Western Australia (2013) 249 CLR 600 at [72]; R v Wilson (2011) 30 NTLR 51 at [27].
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