Ross v Toohey

Case [2006] NTSC 92

Ross v Toohey [2006] NTSC 92

PARTIES:ROSS, ELDRIDGE

v

TOOHEY, JOHN GERARD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 08/2006 (20531250)

DELIVERED:  24 November 2006

HEARING DATES:  27 September 2006

JUDGMENT OF:  MILDREN J

APPEAL FROM:  Court of Summary Jurisdiction, 20531250, 21 February 2006

CATCHWORDS:

CRIMINAL LAW – Appeal – whether magistrate failed to consider Home Detention rather than imprisonment as a last resort – appellant has previous convictions for drink driving and driving disqualified – Court should have considered home detention – home detention report ordered by appellant unsuitable – appeal dismissed

Legislation:
Crimes (Sentencing Procedure) Act (NSW), s 7
Criminal Law (Conditional Release of Offenders) Amendment Act 1987
Sentencing Act (NT), s 7, s 44-48, s 45, s 48(6)
Traffic Act (NT), s 19(1), s 30(1), s 31(1)

References:
Hansard, Debates 24 September 1987, pp 1578-1582

Citations:
Referred to:

Arnold v Trenerry (1997) 118 NTR 1
Oldfield v Chute (1992) 107 FLR 413
Seears v McNulty (1987) 89 FLR 154
Smith v Torney (1984) 29 NTR 31
Stanischewski v Trenerry [2001] NTSC 50
Turner v Trenerry (NT Supreme Court, 17 January 1997, unreported)

REPRESENTATION:

Counsel:

Appellant:P Dwyer

Respondent:  C Baohm

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    A

Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Ross v Toohey [2006] NTSC 92

No. JA 08/2006 (20531250)

BETWEEN:

ELDRIDGE ROSS

Appellant

AND:

JOHN GERARD TOOHEY

Respondent

CORAM:     MILDREN J

REASONS FOR JUDGMENT

(Delivered 24 November 2006)

Mildren J:

  1. This is an appeal against sentence imposed by a magistrate sitting as the Court of Summary Jurisdiction. After hearing submissions from counsel, I allowed the appeal and ordered a home detention report.

  2. The appellant pleaded guilty to three offences against the Traffic Act namely, driving under the influence (s 19(1)); driving in a manner dangerous to the public (s 30(1)); and driving whilst disqualified (s 31(1)).

  3. The Court of Summary Jurisdiction convicted the appellant on each count and imposed an aggregate sentence of imprisonment for three months, suspended after one month. As well, the appellant’s driving licence was disqualified for a total period of 18 months.

  4. The grounds of appeal, as amended by leave at the hearing, are as follows:

    “1.That the learned Magistrate erred in failing to consider the principle that imprisonment is a last resort.

    2.That the learned Magistrate erred in failing to give consideration to home detention as an alternative to actual imprisonment.”

    Facts

  5. The facts, as alleged by the Crown and accepted by the appellant were as follows. On Monday 21 November 2006 the appellant left the Katherine area after visiting his uncle. On his return trip to Lajamanu the appellant consumed an unknown quantity of liquor. On arrival at Lajamanu at around 8:30 pm the appellant became agitated with family members and proceeding to his green Ford Futura sedan, NT registered 628723, he began…

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Details
AGLC
Ross v Toohey [2006] NTSC 92
Case
[2006] NTSC 92
Decision Date

CaseChat Overview and Summary

The appellant, Ross, appealed against his conviction and sentence in the Magistrates Court of the Northern Territory. He argued that the Magistrate erred in failing to consider imprisonment as a last resort and in not considering home detention as an alternative to imprisonment. Ross was convicted for driving while disqualified and causing damage to a vehicle by dangerous driving. The Magistrate sentenced him to three months imprisonment, suspended after one month, and ordered him to pay a fine.

The legal issues before the court were whether the Magistrate erred in not considering home detention as a sentencing option and whether imprisonment should have been considered as a last resort. The court examined whether the Magistrate adequately considered the statutory requirement to consider home detention as an alternative to imprisonment and whether the sentence imposed was appropriate.

The court found that the Magistrate erred in not properly considering home detention as a sentencing option. While the court acknowledged that home detention may not be suitable for all offenders, it found that the Magistrate did not adequately articulate the reasons for rejecting home detention. The court further found that the sentence imposed was not inconsistent with the purpose of home detention as a form of imprisonment. However, a home detention assessment report found Ross unsuitable for home detention, precluding a home detention order.

The appeal was dismissed, and the sentencing orders made by the Magistrate were confirmed. The court emphasised the importance of considering home detention as a real alternative to short sentences of imprisonment, but noted that it may not be suitable for all offenders.

Orders

Orders of the court

In these circumstances, the sentencing orders made by the learned Magistrate were correctly imposed. Consequently the order allowing the appeal is withdrawn and instead I order that the appeal be dismissed.

Background

Background to the litigation

The grounds of appeal, as amended by leave at the hearing, are as follows:“1.That the learned Magistrate erred in failing to consider the principle that imprisonment is a last resort.2.That the learned Magistrate erred in failing to give consideration to home detention as an alternative to actual imprisonment.”Facts The facts, as alleged by the Crown and accepted by the appellant were as follows. On Monday 21 November 2006 the appellant left the Katherine area after visiting his uncle. On his return trip to Lajamanu the appellant consumed an unknown quantity of liquor. On arrival at Lajamanu at around 8:30 pm the appellant became agitated with family members and proceeding to his green Ford Futura sedan, NT registered 628723, he began driving that vehicle south along an unnamed road towards the Lajamanu Community basketball courts where children where playing. He then turned his vehicle right and drove into the middle of the basketball courts, then drove two laps around the Lajamanu Recreational Hall before driving off towards the Lajamanu Health Clinic, in front of which he accelerated his vehicle to such an extent as to cause it to slide sideways. He then drove around the Lajamanu area causing the vehicle to slide sideways. While doing this, he did not observe a large ditch in front of him and crashed his vehicle into the ditch. The appellant alighted from his vehicle and attempted to push it out from the ditch. Lajamanu Night Patrol then arrived and attempted to speak with him, but he refused and again got into the driver’s seat of his vehicle. Police then arrived and informed the appellant that he was under arrest and that he would be conveyed to Lajamanu Health Clinic for treatment. Police observed the appellant to have bloodshot eyes, slurred speech, to be unsteady on his feet and to smell heavily of liquor. After being conveyed to the rear of the Lajamanu Health Clinic, the appellant was later released into the care of family and informed that he would later be summonsed over the incident. Police checks revealed that the appellant was disqualified from holding a licence until 18 February 2006. At the time of the offence, the unnamed road within the Lajamanu Community was a public street open to and used by the public. Traffic was light. The road was sealed. Lighting was by way of streetlights. The appellant has a poor driving record. His prior offending includes three major incidents for which he was charged and convicted as follows: As can be seen, his prior offending resulted in small fines and licence disqualifications. Although the record (Ext 1) appears to show that the appellant was disqualified until 18 August 2006 the facts alleged only that he was disqualified until 18 February 2006. No issue was raised about this discrepancy before the learned Magistrate, but her Honour was alive to it and sentenced the appellant on the basis that he was disqualified until 18 August 2006.Submissions before the Magistrate On behalf of the appellant, counsel submitted to the Magistrate that the appellant had stopped drinking alcohol since this occasion and had apologised to the police, night patrol and before the “Justice Committee”. The appellant tendered a “reference” signed by all of the appellant’s family members to the effect that the appellant is a quiet young man who lives alone and usually keeps to himself, that he has not drunk alcohol since the offending, is now employed as a recreation officer and “also enrolled for Batchelor Courses”. It was put that the appellant, who was 20 years old and lived in a remote Aboriginal community, Lajamanu, was employed supervising children’s sporting activities. It was submitted that the appellant, who is a Warlpiri man, achieved well at school having completed Year 12 in Darwin. He had also enrolled in a diploma course in Sports and Recreation at the Batchelor Institute commencing in March 2006. Apart from his interest and participation in sport as a football player, the appellant had been learning “the ceremony tradition and procedures from the elders” and was regarded by them as a future leader. It was put that, although the offending was serious, he had pleaded guilty at the first opportunity, nobody was actually injured as a result of his driving and that the learned Magistrate should consider a community service order, or at least a home detention order.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Consistently with the scheme of the Act, courts must always consider home detention orders as a real alternative to short sentences of actual imprisonment. Of course there are many situations where home detention will not be available. The Legislature has seen fit to provide that in the case of “violent offences” there must be a period of actual imprisonment, which has the effect that a home detention order is not an option. Given that many so-called “violent offences” are likely to result in a sentence of less than 12 months and many result in a very short sentence, the effectiveness of home detention as a sentencing option to deal with minor offending to that extent has been significantly curtailed. Further, some, perhaps many, offenders will not be eligible either because they are not suitable as individuals or because the place where they live is unsuitable, or because they do not consent to order. Magistrates and Judges are entitled to assume, if no submission is made for a home detention suitability report under s 45 of the Sentencing Act, that the offender’s counsel has taken instructions on that matter and therefore it is not a matter which need to be considered. A person’s history of non-compliance with court orders may make it plain that an actual sentence of imprisonment is the only available sentencing option. However, there are still many cases where it remains a real option and failure to properly consider it and, if it is decided to reject it, to articulate the reasons why, will amount to sentencing error.Conclusion In the present case, counsel for the appellant clearly submitted that the learned Magistrate should consider home detention. It appears that home detention is available as an option in the appellant’s community. It is difficult to see why a period of home detention was rejected as a suitable option having regard to the fact that the total sentence imposed was imprisonment for three months suspended after one month. There is nothing in the appellant’s prior history to positively rule out home detention as a possibility. Clearly, as the Minister’s second reading speech indicated, the fact that he was convicted for the first time of driving whilst disqualified is not in itself a sufficient reason. The learned Magistrate gave no reasons other than it might be supposed that she regarded the offending as “too serious”. If that was the conclusion she reached, in my opinion, it was erroneous, inconsistent with the sentence actually imposed and inconsistent with the purpose of providing for home detention as a form of actual imprisonment. I therefore advised counsel that the appeal would be allowed on ground 2 and ordered a home detention assessment report as required by s 45 of the Sentencing Act. That report took a considerable time to come to hand because the appellant had left his community and his whereabouts were not known. Eventually he was located and assessed. Unfortunately for the appellant, the report assesses him as unsuitable for home detention and in those circumstances s 45 of the Sentencing Act precludes a home detention order.

Ratio Decidendi

Legal Principle Established

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