PARTIES:	INNES WURRAMARRA
		Appellant

	AND:

	ALAN WILLIAM PETER THOMSON
		Respondent

TITLE OF COURT:	Supreme Court of the Northern Territory of 
	Australia

JURISDICTION:	Supreme Court of the Northern Territory of 
	Australia exercising Territory Jurisdiction

FILE NO:	No. JA 1 of 1995

DELIVERED:	23 June 1995

HEARING DATES:	2 June 1995

JUDGMENT OF:	MILDREN J

CATCHWORDS:

CRIMINAL LAW - Appeal and new trial, pardon and enquiry subsequent to conviction - Appeal and new trial - Appeal against sentence - Head sentence and actual period of imprisonment - Head sentence not excessive - Magistrate’s decision to change policy of leniency - Matters of Punishment, prior record, prospects of rehabilitation properly considered.
CRIMINAL LAW - Appeal and new trial, pardon and enquiry subsequent to conviction - Appeal and new trial - Appeal against sentence - Evidence of motor vehicle damage not properly admitted - Letter from complainant read in court - Magistrate’s reliance on amount of damage therein erroneous
CRIMINAL LAW - Appeal and new trial, pardon and enquiry subsequent to conviction - Appeal and new trial - Appeal against sentence - Circumstance of aggravation must be property charged - Aggravated unlawful use of motor vehicle - Magistrate’s sentence took into account aggravating circumstance not charged
CRIMINAL LAW - Appeal and new trial, pardon and enquiry subsequent to conviction - Appeal and new trial - Appeal against sentence - Allowed - Head sentence of 12 months set aside - Sentence of 6 months substituted - To be released on bond after serving 2 months, with conditions
Legislation

Criminal Code 1983 (NT) ss 3(1) and (2), 218(1) and (2)(c), 305(4)
Justices Act 1928 (NT) ss 49, 101, 174, 175, 176 and 176A
Criminal Law (Conditional Release of Offenders) Act 1971 (NT) s 5(1)(b)

Cases

Yardley v Betts (1979) 22 SASR 108 - applied
Tyday v Maley (SC (NT) - 18 May 1995) - approved
Pryce v Trenerry (SC (NT) - 30 March 1995) - mentioned
R v De Simoni (1980-81) 147 CLR 383 - followed

REPRESENTATION:

Counsel:
	Appellant:	G. Dooley
	Respondent:	J. Trier

Solicitor:

	Appellant:	NAALAS
	Respondent:	Director of Public Prosecutions

JUDGEMENT CATEGORY:	CAT B
JUDGEMENT ID NUMBER:	MIL95007
NUMBER OF PAGES:	7

MIL95007

IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
	No JA 1 of 1995

IN THE MATTER of an appeal from the Court of Summary Jurisdiction

BETWEEN:
INNES WURRAMARRA

	Appellant

AND:
ALAN WILLIAM PETER THOMSON
	
	Respondent

CORAM: MILDREN J

	REASONS FOR JUDGMENT
	(Delivered 23 June 1995)

This is an appeal against sentence.

The appellant was convicted in the Court of Summary Jurisdiction at Alyangula, Groote Eylandt, of three offences.

1.	Unlawful entry of a building.
2.	Attempted unlawful use of a motor vehicle; and
3.	Unlawful use of a motor vehicle.

On each of the first two counts he was sentenced to four months’ imprisonment.  On the third count, he was sentenced to 12 months’ imprisonment.  Each sentence was made concurrent.  The learned Magistrate ordered that after having served four months of those sentences, the appellant be released upon a supervised bond for 12 months which included a condition that he reside at Numbulwar for the first 6 months of the bond.

The appellant does not complain about the two sentences of 4 months’ imprisonment.  The appeal is confined to the sentence of 12 months, and to the period of actual imprisonment to be served before being released.   The original Notice of Appeal contained 5 grounds.  Four additional grounds were relied upon at the hearing of the appeal.  Some of these grounds relied upon overlapped and were argued together.

The facts as alleged by the prosecutor before the learned magistrate were admitted.  The appellant, together with three other males, were at Angurugu and decided to go to Alyangula to steal alcohol.  The appellant acted as a lookout whilst two of the others climbed onto the roof of the golf club house, removed the skylight, and entered the premises.  Upon being disturbed by police, one of those who entered the clubhouse threw a bar stool through a window.  All escaped.  Later, in the early hours of the morning, they made their way to the bar staff flats.  There the appellant, having unsuccessfully tried to start a utility, started a Toyota Hi-Lux utility which was nearby by interfering with the ignition.  The others accompanied the appellant who then drove the vehicle to Angurugu. The vehicle was “skidded around” which caused damage to it.  It was abandoned after it blew a tyre.  The appellant and the others were apprehended shortly afterwards, and the vehicle returned to its owner.  Later that day, the appellant made full admissions to the police during an electronically recorded record of interview.

As appears from the complaint the appellant was aged 20 at the time of the offences.  He has a formidable record of prior offending since 1991 including 14 prior convictions for unlawful use of a motor vehicle, 15 prior convictions for stealing, 17 prior convictions for unlawful entry, and a number of other convictions as well.  He has been given detention, suspended detention, home detention, suspended sentences of imprisonment, community service orders, bonds, and fines.  He has breached bonds on three occasions.  His last convictions were on 20 July 1994 when he was given 96 hours community service and ordered to pay $200 restitution for 2 counts of unlawful use, one count of stealing and one count of unlawful entry.  The present offences occurred on 18 September 1994.

Grounds 1 and 2 of the original Notice of Appeal and additional ground 1 were argued together.  These grounds complained that the learned magistrate erred in placing undue weight on punishment, undue weight on the appellant’s prior record, and failed to give sufficient weight to his prospects of rehabilitation.  Mr Dooley argued that the learned magistrate had decided to change his policy of lenience, in which emphasis is given to non-custodial dispositions, distorted the sentence in order to emphasize that the rules were changing, imposed a head sentence which involved too great a leap from previous dispositions for the same offences by the same magistrate, punished him for the magistrate having been too lenient in the past and failed to give due weight to his prospects of rehabilitation.  Ground 4 of the Notice of Appeal (that the sentence was manifestly excessive) was not pressed.  It must be assumed therefore that the head sentence was within the learned magistrate’s sentencing range.  The maximum penalty fixed by the Criminal Code for this offence is 2 years’ imprisonment:  s. 218(1).

There is nothing in the learned magistrate’s sentencing remarks which leads me to the conclusion that any of these grounds have been made out.  The appellant can hardly complain that he has received undue leniency in the past if his present sentence is not manifestly excessive:  see Yardley v Betts (1979) 22 SASR 108 at 113-114.  Nor did the learned magistrate place undue weight on the appellant’s prior convictions.  The appellant had been convicted of the same offence only two months previously.  As Angel J said in Tyday v Maley (unreported 18 May 1995 at 6) -

“The appellant’s prior record was relevant to an evaluation of the seriousness of the offences in respect of which the sentences were being imposed.”

I do not consider that this Worship’s remarks can be construed as punishing him again for past offending.  As to the appellant’s prospects of rehabilitation, it is evidence from the terms of the bond that his Worship had given that aspect of the purposes of punishment due weight.
Ground 3 of the Notice of Appeal was abandoned and ground 4 as I have already observed, was not pressed, and need no further discussion.

Ground 5 and additional ground 2 were argued together.  In essence the appellant complains that the learned magistrate wrongly took into account evidence as to the damage to the car and loss to the victim which was not properly before him.  It appears that the vehicle was owned by a Mr Paul Murphy who had written a letter to the Court complaining that the value of the damage to his vehicle was $3,300, and that as well, a compressor which had been left on the back of the utility and had been worth $1,000, was destroyed.  It appears that the prosecutor was aware of the existence of this letter, because he invited the learned magistrate to have regard to it.

The letter was not tendered in evidence.  Consequently it was not properly before the Court.  I have had occasion to remind magistrates on a previous occasion of the importance of ensuring that documents are properly marked as exhibits.  In this case, neither the letter nor the appellant’s list of prior convictions had been marked as exhibits. There is no complaint about the latter, but Mr Dooley rightly complains about the former.  It is most important that a document is not received or relied upon unless it is tendered and marked as an exhibit after any objection to its admissibility has been dealt with.  Until this occurred counsel for the appellant was entitled to assume that the letter was not in evidence and could safely be ignored.  The proper marking of exhibits also serves another purpose.  Ss.174 and 175 of the Justices Act provide what documents are to be transmitted to this Court on an appeal, and ss.176 and 176A of the Act determine in what circumstances evidence, other than those documents may be received.  As the letter from Mr Murphy was not marked as an exhibit, it was not included in the documents transmitted to this Court from the Court of Summary Jurisdiction for the hearing of this Appeal.  Consequently I have not seen it, and have only been able to glean part of the contents of the letter from the transcript of proceedings.

In this case it is apparent that counsel for the appellant did not consent to the reception of the letter into evidence.  Initially it seems that the learned magistrate indicated that he intended to read the letter out aloud in open court so that the persons present, who included some senior members of the aboriginal community, would understand the nature of Mr Murphy’s complaints.  In other words, the learned magistrate intended to use the letter as a means of drawing to the aboriginal community’s attention the grievances of at least one victim of those sort of crimes, which he apparently regarded as being too prevalent on the island, the nature of the damage concerned, the inconvenience and cost caused, and the concern that the magistrate obviously felt about the ineffectiveness of community service orders and reparation orders in such cases as a deterrent.  If the use of the letter had been left at that, there could be little by way of complaint.  I think that the learned magistrate went further.  In his sentencing remarks he specially referred to causing “$3,500 damage” to the car, and “$1,000 damage to a pump”.  There was no admissible evidence that damage to this value was caused by the appellant, and no concession was made to this effect by his counsel.  The damage which his counsel admitted amounted to some unspecified damages, (possibly as the result of ‘hot-wiring’ the vehicle) and a blown tyre.

Before leaving this topic, it is necessary to refer briefly to ground 3 of the additional grounds of appeal.  This complains that the learned magistrate erred in sentencing the appellant on the basis that the appellant had been convicted of an aggravated unlawful use of the vehicle.  Section 218(2)(c) of the Criminal Code provides a maximum penalty of 7 years’ imprisonment where the property unlawfully used is damaged and the cost of repairing or compensating for the same is $1,000 or more, and the offence in those circumstances is a crime.  If the complainant had wished to rely upon s.218(2)(c) of the Code, he would have needed to proceed by way of information and allege the value of the damage as a circumstance of aggravation:  see Justices Act, s.49, and 101; Criminal Code, ss.3(1) and (2), and ss.305(4); to which circumstances of aggravation the appellant was entitle to plead:  see generally Pryce v Trenerry, (Kearney J, unreported, reasons delivered 30 March 1995, esp. at pps 10-18).  Where there are facts alleged which amount to a circumstance of aggravation for which a higher penalty is provided, they cannot be taken into account in fixing the penalty unless they have properly been the subject of the charge:  see The Queen v De Simoni (1980-81) 147 CLR 383 at 392.  In that case, the accused had pleaded guilty to a charge of robbery with violence under s.391 of the Criminal Code (WA).  In stating the facts upon which the Crown had relied, the prosecutor had alleged facts which showed that the accused had wounded his victim and used personal violence upon her which the respondent had contended were circumstances of aggravation not charged in the indictment.  The Court of Criminal Appeal held that it was not permissible for the trial judge to take those matters into account in imposing sentence.  The majority of the High Court held that the trial judge could take into account the violence, which was an element of the charge, but not any wounding caused by the violence, because this was a circumstance of aggravation and not an element of the robbery itself.  The appeal was allowed, the majority being of the view that the Court of Criminal Appeal had wrongly decided that the trial judge had taken into account the wounding, when the trial judge had specifically said that the wounding had not been charged, and the indications were that he had not relied upon the wounding to decide upon the sentence.  However in this case, the learned magistrate, in his sentencing remarks, specifically referred to the “$3,500 damage” and “$1,000 damage to a pump” and said that the victim “has to find almost $5,000 to repair his motor vehicle because you wanted to go for a drive and break in and get some grog.  That’s just not acceptable...”  The learned magistrate did not say that this level of the damage was a circumstance of aggravation not alleged, and that he ignored it.  In my opinion it is clear that he did take this level of damage into account for sentencing purposes, and that, for the reasons discussed, he erred in doing so.  I reject the valiant submissions of counsel for the Crown to the contrary.

Accordingly, I am of the opinion that the appeal must be allowed and the sentence of 12 months’ imprisonment should be set aside.  Having regard to the admitted facts, the appellant’s age, his previous offending, the circumstance that this offending occurred soon after he had previously been convicted of the same offence and the matters put in mitigation, including the fact that he had been to Numbulwar with his wife and child since this offending and had been behaving himself there, I am of the opinion that a period of imprisonment for this offence is warranted.  I substitute therefore, a sentence of 6 months’ imprisonment, concurrent with the two sentences of four months imposed by the learned magistrate.  I am also of the opinion that some portion of this sentence must be served.  Accordingly I direct that after having served two months of these sentences, the appellant is to be released upon his entering into a recognizance, self, in the sum of $500 to be of good behaviour for 12 months on the following conditions:

1.	That the appellant is to be subject to the supervision of the Director of 
	Correctional Services or his nominee during the period of the bond.

2.	That the appellant is to obey all lawful directions of the Director or his
	nominee as to residence, reporting and associates.

3.	That the appellant is to reside at Numbulwar for the first six months of the bond, and is not to leave Numbulwar except with the prior approval of the Director or his nominee, unless it is for the purpose of urgent medical or dental treatment, whereupon he is to return to Numbulwar as soon thereafter as his health permits.

Orders accordingly.

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