Wanambi v Firth
[2020] NTSC 57
•14 January 2020
CITATION:Wanambi v Firth & Ors [2020] NTSC 57
PARTIES:WANAMBI, Danny
v
FIRTH, Justin Antony
AND:
WANAMBI, Danny
v
FIRTH, Justin Antony
AND:
WANAMBI, Danny
v
FLYNN, Steven
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 47/19; 48/19; 49/19 (21807825; 21809292; 21838898)
DELIVERED: 14 January 2020
HEARING DATES: 14 January 2020
PUBLISHED: 28 August 2020
JUDGMENT OF: Blokland J
CATCHWORDS:
APPEAL – SENTENCE APPEAL – Conditional breach of suspended
sentence – full restoration of balance of the term held in suspense – whether
specific error – appellant completed three month residential rehabilitation –
appellant failed to report as attending to cultural activities in Milingimbi
and travelling between Darwin and Milingimbi – no further offending –
whether unjust in all of the circumstances to order full restoration – appeal
allowed.
Sentencing Act 1995 (NT) s 43
Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR 210, Long v Eaton [2012] NTSC 42, Hogan v Hinch [2011] HCA 4; 243 CLR 506, House v King [1936] HCA 40, 55 CLR 499, Wong v The Queen [2001] HCA 64; 207 CLR 581, Hooten v The Queen [2011] NTCCA 2, referred to
REPRESENTATION:
Counsel:
Appellant:E Scoufis
Respondent: D Jones
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: BLO 2006
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINWanambi v Firth & Ors [2020] NTSC 57
No. 21807825; 21809292; 21838898
BETWEEN:
DANNY WANAMBI
Appellant
AND:
JUSTIN ANTONY FIRTH
Respondent
AND BETWEEN:
DANNY WANAMBI
Appellant
AND:
JUSTIN ANTONY FIRTH
Respondent
AND BETWEEN:
DANNY WANAMBI
Appellant
AND:
STEVEN FLYNN
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 28 August 2020)
Introduction
On 14 January 2020 this Court allowed an appeal against an order of the Local Court. Counsel were advised reasons would be prepared and forwarded to them. These are the reasons for allowing the appeal which may be read together with the brief extempore remarks made at the time. The grounds of appeal were as follows:
1. In all the circumstances, the learned Local Court Judge was in error in restoring the sentence held in suspense.
2. The Local Court Judge erred in the application of s 43(5) and (7) of the Sentencing Act1995 (NT) (‘Sentencing Act’).
The appellant was initially sentenced in the Darwin Local Court on 19 October 2018 to 6 months and 28 days imprisonment across four files (21807825, 21809292, 21838898 and 218078525). The sentence of imprisonment was backdated to 14 September 2018 and suspended on conditions from 22 October 2018 with an 18 month operational period.
On 16 September 2019, the appellant came before the Local Court and admitted conditional breaches of the suspended sentence. The breaches alleged were failing to report for supervision and failing to advise of a change of address. After hearing submissions, the Local Court Judge restored the full balance of the sentence held in suspense, a term which was 6 months and 19 days.
On 11 October 2019 the appellant was granted bail pending the appeal.
The appellant initially filed appeals across the four files (21807825, 21809292, 21838898 and 218078525) but abandoned his appeal in relation to file 21807825 as he had served the sentence on that file in full.
The respondent did not wish to be heard on the appeal; nevertheless, as an order restoring the balance of a term of imprisonment is a discretionary order of the Local Court, error must be identified to enliven the jurisdiction of this Court to determine an appeal.[1] The presumption is that there was no error.[2]
Local Court Proceedings
The following chronology was filed on behalf of the appellant. No issue was taken with its accuracy and it is a convenient way to understand the history of the proceedings:
Date
Event
15 February 2018
Offending committed on file 21807825 (1 x breach of DVO charge)
21 February 2018
Offending committed on file 21809292 (1 x breach of DVO and 1 x aggravated assault)
11 September 2018
Offending committed on file 21838898 (breach of DVO)
14,September 203$'
Offending committed on file 21838898 (breach of DVO)
19 October 2018
The appellant was sentenced by [the Local Court] as follows:
File 21807825: 7 days’ imprisonment backdated to 14 September 2018;
File 21809292: 7 days’ imprisonment for the breach DVO; 6 months’ imprisonment for the aggravated assault, cumulative on the breach DVO charge and to commence from 21 September 2018, suspended from 22 October 2018;
File 21838898: 7 days’ imprisonment for each of the two breach DVO charges (total 14 days’ imprisonment), cumulative.
Total effective sentence imposed: 6 months and 28 days’ imprisonment, backdated to 14 September 2018 and suspended on conditions from 22 October 2018, with an operational period of 18 months from 22 October 2018.
22 October 2018
Offender released from custody to go to FORWAARD residential rehabilitation for 12 weeks.[3] Offender completed residential rehabilitation and tested negative to alcohol and other drugs whilst at FORWAARD 14 January 2019
Approximate date the offender completed FORWAARD Mid/late January 2019
Approximate date the offender reported to Community Corrections after completing FORWAARD.[4] 30 January 2019
Conditional breach of suspended sentence committed by failing to report for supervision and failing to advise of a change of address Between late January 2019 and mid-September 2019
Offender travelled between Darwin and Milingimbi to attend funerals and men's business 12 September 2019
Offender arrested on a warrant for breach of his suspended sentence.[5] 13 September 2019
Breach of suspended sentence first mentioned in the Local Court and adjourned to 16 September 2019 so that an interpreter could be arranged for the offender 16 September 2019
Breach dealt with by [The Local Court]
[the Court] fully restored the balance of the suspend sentence across all three files from 12 September 2019 (the decision appealed against)
27 September 2019
Notices of appeal filed 11 October 2019
Appeal bail granted on conditions:
(a) To accept the supervision of Correctional Services and obey all reasonable directions of its personnel
(b) To reside at 5 Groote Street, Wagaman with Cheryl Lalara between the hours of 9pm and 6am.
(c) Not to leave Darwin for any reason.
(d) Not to purchase, possess or consume alcohol or any illicit drug and substance or any medication requiring prescription unless currently prescribed to him by a medical practitioner and not to enter licensed premises and submit to breath analysis and/or urinalysis and/or saliva testing at the request of Police or Correctional Services personnel.
(e) To appear before the Supreme Court at Darwin when called upon to do so.
(f) To report to the OIC of Casuarina Police Station every Monday, Wednesday and Friday between 8am and 4pm.
14 January 2020
Hearing of the appeal
In the breach proceedings on 16 September 2019, the sentencing Judge was told that the appellant had successfully completed the 12 week residential rehabilitation program at FORWAARD following his release from custody on 22 October 2018. The appellant reported to Community Corrections on one occasion after leaving FORWAARD. Counsel for the appellant noted that the subsequent date for reporting was a public holiday, but that the appellant failed to report since that date.[6]
In terms of why the appellant continued to fail to report, the sentencing Judge was told he had spent time travelling to Milingimbi to participate in particular cultural activities or undertake cultural obligations. The appellant’s family, who were present in the Local Court, and an Elder from the appellant’s community who assisted with interpreting, confirmed there were a number of funerals at Milingimbi during the time the appellant was to be reporting.[7]
As may be observed from the chronology, the appellant did not re-offend between his release from custody on 22 October 2018 and his arrest for the breaches, a period of approximately nine months. At the time of the breach proceedings he had served a total of two months and nine days of the sentence.
Counsel for the appellant requested the sentencing Judge consider a partial restoration of the appellant’s suspended sentence to reflect the time served as a result of processing the breach, noting the appellant had spent approximately 5 days in custody on remand awaiting the finalisation of the breach proceedings. It was submitted that, in the circumstances, full restoration of the suspended sentence would be unjust for the following reasons:[8]
·The absence of fresh offending;
·The breach was towards the lower end, insofar as it was a conditional breach;
·The appellant substantially complied with his suspended sentence by completing the residential rehabilitation program at FORWAARD;
·The breach was committed in furtherance of his cultural obligations and did not reflect an attitude of disobedience;
·The appellant now appreciated the consequences of breaching his obligations and affirmed his commitment to comply with them;
·The suspended sentence imposed was the first time the appellant had been given a conditional, supervised sentence; and
·The breach proceedings represented the first time the appellant had been dealt with for breaching the suspended sentence.
Following counsel for the appellant’s submissions, the prosecutor appearing in the breach proceedings told the Court that the period of non-reporting was seven months which he submitted may be the most galling part of the breach. The prosecutor did, however, emphasize that this was the appellant’s first time on a structured, supervised order where he had commitments that took precedence over his family and community’s cultural commitments.[9] The prosecutor further mentioned that the appellant ‘was not before the Court for any other offending, save to say that he has not been where he should have been for the last seven months.’[10] The prosecutor submitted, in the circumstances, the sentencing Judge would be justified to restore a portion of the outstanding sentence held in suspense[11] or ‘at the very least, extend the operational period by a commensurate sum to ensure that he [the appellant] is under supervision for the time that was envisaged at the outset.’[12] The prosecutor did not submit the breach justified full restoration of the suspended sentence. On the contrary, the prosecutor submitted either partial restoration or an extension of the operational period was an appropriate sanction for the breach.
Plainly the sentencing Judge was not bound by either counsel’s submissions. However, the submissions from both counsel pointed to a real question about whether full restoration was appropriate in all of the circumstances.
The sentencing Judge recited the facts and noted the explanation that the appellant travelled to Milingimbi where he engaged in cultural obligations. However, he stated this did not explain the lengthy period between February and September 2019 during which the appellant made no effort to contact probation and parole officers.[13] The sentencing Judge remarked:
Either he suffers from some sort of mental difficulty which makes it particularly difficult for this individual in the circumstances to recall, there’s no evidence of that before me. The suggestion that he overlooked, in that he no longer remembered and no longer saw any obligation, is not one that I accept. He has not committed himself to the conditions of the suspended sentence. He came before the court charged with a handful of very serious matters.[14]
…
It is correct that there is no evidence before me today of any further offending in the period of 7 months he has been in the wind, but that is not satisfactory. The idea that the government purse should pay him to be returned to Milingimbi or that he should continue to wander between Milingimbi and Darwin as he deems appropriate, is simply not acceptable. The idea that he will now say, “all right, I’ve learned the error of my ways, I won’t do it again,” beggars credulity.[15]
Ground 2: the Local Court Judge erred in the application of s 43(5) and (7) of the Sentencing Act.
As the focus of the oral argument at the appeal hearing was on this issue, it is convenient to deal with this ground first. Breaches of suspended sentences are governed principally by subsection 43(5) and (7) of the Sentencing Act which provide:
(5) Where:
(a)on the hearing of an application under subsection (1) or on the hearing of its own motion under subsection (4A), a court is satisfied, by evidence on oath or by affidavit or by the admission of the offender, that, during the operational period of the suspended sentence, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment; or
(b)on the hearing of an application under subsection (2) or on the hearing of its own motion under subsection (4B), a court is satisfied, by evidence on oath or by affidavit or by the admission of the offender, that the offender has breached a condition of the order;
the court may:
(c)subject to subsection (7), restore the sentence or part sentence held in suspense and order the offender to serve it; or
(d)restore part of the sentence or part sentence held in suspense and order the offender to serve it; or
(e)for a wholly suspended sentence, extend the operational period to a date after the date of the order suspending the sentence; or
(ea)for a partially suspended sentence – extend the operational period to a date after the date specified in the order suspending the sentence; or
(f) make no order with respect to the suspended sentence.
(6) …
(7)A court must make an order under subsection (5)(c) unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence and, if it is of that opinion, the court must state its reasons.
Counsel for the appellant submitted the sentencing Judge erred by failing to explicitly make reference to whether or not it would be just or unjust to fully restore the sentence as required under s 43(7) and failing to make reference to the alternatives to full restoration in s 43(5), namely, partial restoration, extension of the operational period or taking no action in respect of the breach. There is no requirement for a judge to recite statutory tests such as those set out in s 43(5) and (7) of the Sentencing Act. Remarks of judges conducting lists in busy courts are not to be criticized or scrutinized. However, ordinarily it might be expected that the meaningful application of s 43 would be apparent or obvious from the overall circumstances, the result or indeed the remarks.
The starting point for dealing with a breach of a suspended sentenced is restoration. The integrity of the system of suspended sentences demands that be the case. However, that starting point is subject to a fundamental qualification set out in s 43(7) “unless it would be unjust to do so in view of the circumstances which have arisen since the suspended sentence was imposed”. Further, s 43 provides explicit alternatives to full restoration.
The principal authority in this jurisdiction governing breaches of suspended sentences is Bukulaptji v The Queen.[16] Justice Riley, with whom Thomas J agreed, set out the following factors that may be considered relevant in determining whether it would be unjust to make an order restoring the sentence or part sentence held in suspense in a particular case:
a. the nature and terms of the order suspending the sentence;
b. the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;
c. whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
d. whether the breach demonstrates a continuing attitude of disobedience of the law;
e. whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;
f. the length of time during which the offender observed the conditions;
g. the circumstances surrounding or leading to the breach;
h. whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;
i. whether the offender had been warned of the consequences of a breach; and
j. the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach.
In Bukulaptji, the offender was released from prison on a suspended sentence on conditions which included an obligation to immediately report to Community Corrections and reside on Goulburn Island. Immediately on release, rather than return to Goulburn Island, he ignored his conditions and travelled to Milingimbi. He made no attempt to comply with the conditions of the suspension at all.[17] He committed a further offence which was not brought to the attention of the Judge dealing with the breach at first instance.
A distinction between breaches by way of re-offending and conditional breaches was noted in Bukulaptji.[18] The matter before the Judge at first instance was a conditional breach. The Court of Criminal Appeal found there was a gross disparity between the conduct which constituted the breach and the term of imprisonment to be restored. The significant disparity meant that full restoration was unjust in all of the circumstances.
In Long v Eaton,[19] although an appeal which relied in part on fresh evidence, Barr J considered an appellant who was originally sentenced to a partially suspended sentence with conditions of supervision and a condition to undertake the Family Violence Program. The appellant’s attendance at the Family Violence Program was incomplete as he missed certain days due to funeral attendance. He was excluded from the program due to the missed days. As the appellant had otherwise complied with supervision and had not re-offended, his Honour found it would be unjust to restore the full balance, notwithstanding the non-compliance with the condition to attend family violence program.
The sentencing Judge below had “no hesitation” in restoring the full term. This was a case for some hesitation or some reflection on the relevant principles. Nor was it at any time suggested by either counsel to be a case of “mental difficulty” which was remarked on but was not relevant to the consideration in the appellant’s case. The appellant should not have prioritised kinship and cultural obligations for such a period of time without re-engaging with or at least contacting correctional services. He had however completed a 12 week course of residential rehabilitation. He had not re-offended. He had effectively spent five days in custody as a result of the breach action. Correctional services were prepared to continue to supervise him. The conditional breach was of some significance, but could appropriately be dealt with through, partial restoration or an extension of the operational period. There was a gross disparity between the conduct constituting the breach and the order to serve the full term such that in the terms of s 43(7) it was unjust to do so.
As well as the need to ensure the integrity of the system of suspended sentences, there is a public interest in the rehabilitation of offenders. It may not always be straightforward and conditional breaches are not uncommon. Nevertheless, completion of the operational period with or without conditions remains a valuable process for an offender to continue to engage in, to achieve rehabilitation. In Hogan v Hinch,[20] French CJ said “Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. Section 43 of the Sentencing Act in this instance was misapplied or not applied to the facts in this matter, which led to error. This ground of appeal was upheld.
Ground 1
The appellant argued, regardless of whether the Local Court Judge made a specific error as set out above, the full restoration of the suspended sentence of 5 months and 19 days imprisonment resulted in an unjust outcome when considering the relevant factors identified within Bukulaptji. For the same reasons identified under ground 2, this ground was upheld. Full restoration was a disproportionate sanction in all of the circumstances.
Re-sentencing
In addition to the five days in custody between arrest and being dealt with for the breach, the appellant spent a further 25 days in custody before appeal bail was granted. He was then on restrictive bail conditions as set out above in the chronology. In those circumstances the appellant had been well punished for the breaches. Consistent with s 43(7) and having regard to “all the circumstances which have arisen since the suspended sentence was imposed”, it was not appropriate nor a proportionate response for this Court to order restoration in the light of the time already spent in custody on account of the breaches.
Formal Orders
1. The appeal in relation to file 21807825 is abandoned and withdrawn.
2. The appeal on files 21809292 and 21838898 is allowed.
3. The order of the Local Court restoring the balance of the suspended sentence on files 21809292 and 21838898 is quashed.
4. The recording of the admitted and proven breaches is confirmed.
5. No further action will be taken with respect to the breaches on files 21809292 and 21838898.
6. The appellant is discharged from all bail obligations on the appeal files.
7. With the agreement of counsel these reason will be forwarded to their respective offices.
-------------------------
[1] House v King [1936] HCA 40, 55 CLR 499 at 504-5; Wong v The Queen [2001] HCA 64; 207 CLR 581 at [58].
[2] Hooten v The Queen [2011] NTCCA 2 at [22].
[3] As per Exhibit P1 (Breach and Compliance Report dated 14 March 2019).
[4] Taken from the bottom of page 2 of the Breach and Compliance Report: “Wanambi has not been tested for the presence of wither substance since 12 February 2019, due to his failure to report for supervision or to provide an address… since completing FORWAARD, Danny Wanambi has reported once for supervision with Community Corrections”.
[5] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 8.
[6] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 3.
[7] Transcript of proceedings Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 3.
[8] Summarised in the outline of the appellant’s submissions filed on 27 December 2019 at 6
[9] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 9.
[10] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 9.
[11] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 9.
[12] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 11.
[13] Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 11.
[14]Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 11.
[15]Transcript of proceedings, Police v Danny Wanambi (Darwin Local Court, 21807825, 21809292, 21838898, 16 September 2019) at 12.
[16] [2009] NTCCA 7; 24 NTLR 210.
[17] Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR 210 at [6]-[7].
[18] Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR 210 at [39]
[19] [2012] NTSC 42.
[20] [2011] HCA 4; 243 CLR 506 at [32].
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