Taylor v Siebert - [2023] NTSC 43

CITATION: Taylor v Siebert [2023] NTSC 43

PARTIES: TAYLOR, William

v
SIEBERT, Kelly Marie

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO: LCA 8 of 2023 (22306239)

DELIVERED: 23 May 2023

HEARING DATE: 23 May 2023

JUDGMENT OF: Grant CJ

REPRESENTATION:

Counsel:
Appellant: J Lumsden with J Bourke
Respondent: L Williamson

Solicitors:

Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification:          C
Judgment ID Number:  GRA2306
Number of pages:  7

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

Taylor v Siebert [2023] NTSC 43

LCA 8 of 2023 (22306239)
BETWEEN:
WILLIAM TAYLOR
Appellant

AND:
KELLY MARIE SIEBERT
Respondent

CORAM: GRANT CJ

REASONS FOR JUDGMENT

(Delivered ex tempore on 23 May 2023)

On 8 March 2023, the appellant pleaded guilty to three offences before the Local Court. Those offences were driving unlicensed, driving unregistered and driving without a current compensation contribution contrary to ss 32, 33 and 34 respectively of the Traffic Act 1987 (NT). The maximum penalty for the first and second offences was 12 months imprisonment or a fine of 20 penalty units, while the maximum penalty for the third offence was a fine of 100 penalty units.
The Local Court convicted the appellant of all three offences and imposed an aggregate sentence of imprisonment of one month which was wholly suspended subject to an operational period of 12 months. The appellant brings this appeal on the grounds that the Local Court erred by acting on a wrong principle in failing to consider and exclude alternatives to imprisonment; that the Local Court erred in failing to give adequate reasons; and that the sentence was manifestly excessive.
The imposition of sentence is a discretionary determination. An appeal court will not set aside or vary a discretionary determination of that type unless it is satisfied that the sentence is infected by an error of the type identified in House v The King (1936) 55 CLR 499. An error of that type will include a failure to take into account relevant matters; having regard to irrelevant matters; acting on a wrong principle; and what might compendiously be described as unreasonableness in the outcome, even where no specific error can be identified. In the case of an appeal against sentence by an offender, in order for the outcome to be characterised as unreasonable the sentence must be plainly and obviously excessive.
In the event that the appeal court finds specific error in the course of the sentencing process, it is incumbent on the appeal court to make its own determination or assessment in a fresh exercise of the sentencing discretion. In such a case, the appeal court will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where specific error has been demonstrated, the appeal court may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive. In fact, in those circumstances no inquiry into manifest excess is necessary or appropriate.
In the present case the respondent has properly conceded that the sentence imposed by the Local Court was in error for the reason described by this Court in Gibson v Jones [2020] NTSC 68 at [37]. That is, the court imposed an aggregate sentence of imprisonment in purported pursuance of s 52 of the Sentencing Act 1995 (NT) in circumstances where the third offence was not one for which a sentence of imprisonment was an available option under the statutory prescription of penalty. In the circumstances, the sentence must be set aside and I must exercise the sentencing discretion afresh, subject only to the exercise of the judicial restraint against the imposition of a higher sentence.
The relevant circumstances of the offending were as follows. On 31 January 2023, the appellant borrowed a friend’s car which he said was for the purpose of driving to pick up a relative. At the time he was unlicensed and the car was unregistered and uninsured. The appellant was subsequently stopped by police for a traffic apprehension. He was not intoxicated and he was not apprehended for any reason to do with the manner or speed of his driving. He made admissions during the course of an interview with police. The pleas of guilty were entered at the earliest available opportunity.
The appellant has an appalling and relevant criminal history in relation to these sorts of offences. He has previously been convicted of the common trilogy of driving unlicensed, unregistered and uninsured in February 2022, December 2021, September 2021, May 2017, March 2017, December 2014 and June 2014. He also has other motor vehicle-related convictions and a number of recorded failures to comply with court orders. As a consequence of that criminal history, at the time of sentencing the appellant owed almost $30,000 in fines. During the course of sentencing submissions, defence counsel indicated that the appellant was due to start work as a removalist shortly and that immediately following court he would take the client to the Fines Recovery Unit to organise a payment plan.
It may be accepted that the appellant is a recidivist offender, and that fines have had absolutely no deterrent effect on his conduct in the relevant sense. That history obviously elevates the significance of personal deterrence and punishment in the sentencing exercise. Even making due allowance for that elevated significance, in Emitja v The Queen [2016] NTCCA 4 at [35]-[36] the Court of Criminal Appeal restated the well-established principle that proportionality requires that the upper boundary of the sentence be set by reference to the objective circumstances of the offence.
During the course of submissions, counsel for the appellant drew particular attention to the decision in Gumurdul v Reinke (2006) 161 A Crim R 87 in support of the appellant’s case in the present appeal. That matter was decided largely on the basis that the magistrate gave undue weight to the factors of general and personal deterrence in circumstances where in the 15 month period between the last offending and the imposition of sentence, the accused had overcome his previous problems with alcohol abuse and petrol sniffing, had secured employment, and had resumed playing competitive football. That allocation of undue weight was exacerbated by the failure to take into account that the appellant in that case had played no part in the taking of the vehicle and his brief involvement was limited to the acceptance of a pressing invitation from his relatives to go for a ride in it. It was in those circumstances that the appeal court referred to the imposition of imprisonment as a ‘quantum leap’. That conclusion turned on the particular facts and circumstances of the case. The appellant in the present matter is unable to point to any great change in his circumstances or any concerted attempt at rehabilitation since his last conviction for driving unregistered, uninsured and unlicensed less than 12 months before these events.
However, as I have already observed, there was nothing remarkable about the appellant’s manner of driving in the present case, he was not intoxicated, he was not subject to an order suspending sentence for similar offending, and there was no suggestion that the conduct gave rise to any sort of public risk or nuisance. In the ordinary course, offending with those bare features will ordinarily attract the imposition of a fine rather than imprisonment, even in circumstances where the offender has a relevant criminal history: see generally George v Parsons [2009] NTSC 66; Long v Westphal [2010] NTSC 55 at [14]-[17]; Rontji v Westphal [2010] NTSC 67 at [8]; Marshall v Court [2013] NTSC 75; McMahon v O’Neill [2015] NTSC 58; Choolum v Heath (2017) 80 MVR 298.
Counsel for the appellant has submitted that one alternative to both imprisonment and a fine would be the imposition of a community work order. The appellant has a long history of breaching court orders, including relatively recent and repeated breaches of orders suspending sentence and bail. This Court could not have any confidence that the appellant would comply with the conditions of a community work order. An order in those terms would require the continuing supervision of the court in a way a fine would not.
Although I do not for a moment consider that a fine will have any real deterrent effect on the appellant’s conduct, or that the appellant will make any genuine attempt to pay the fine, I consider that to be the appropriate disposition having regard to the particular circumstances of this offending and the prevailing sentencing range. However, that is not to suggest that the sentence imposed by the Local Court was manifestly excessive or that the reasons given for that sentence were so inadequate as to bespeak error.
I would also observe that on one analysis a wholly suspended period of imprisonment might be considered a less onerous disposition for the appellant than a further accretion to the great sum of money he already owes to the Territory by way of unpaid fines. The only risk attending the suspended sentence was if the appellant committed another offence punishable by imprisonment within that 12 months. That was a matter entirely within the appellant’s control, and hardly any great imposition. However, the appeal has been pressed in what would seem to be the pursuit of principle rather than the appellant’s personal financial interests.
For these reasons, I make the following orders:
1.The sentence to imprisonment of one month wholly suspended subject to an operational period of 12 months which was imposed by the Local Court on 8 March 2023 is set aside.
2.The appellant is convicted of the three offences and sentenced to an aggregate fine of 10 penalty units.

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