PARTIES:

TITLE OF COURT: JURISDICTION: FILE NO: DELIVERED: HEARING DATE: JUDGMENT OF:

BAMAGA, Kelvin
V

TRENERRY, Robin SUPREME COURT (NT) SUPREME COURT (NT) 274 of 1992
Darwin 18 December 1992
9 December 1992
Martin J.

CATCHWORDS:
Criminal Law and Procedure - Jurisdiction, practice and procedure - Judgment and punishment - Failure to fix non-parole period - Consideration of irrelevant matters -
Parole of Prisoners Act (NT), s4(1)
Sullivan and Rigby v The Queen (1987) 26 A Crim R 225, applied.
Criminal Law and Procedure - Jurisdiction, practice and procedure - Judgment and punishment - Mitigation - Weight given to past efforts at rehabilitation by offender -
Criminal Law and Procedure - Jurisdiction, practice and procedure - Judgment and punishment - Multiple offences - Totality principle -
Holder v Johnston {1983) 13 A Crim R 375 at 389, approved.
REPRESENTATION:
Counsel:
Applicant: J B Lawrence Respondent: c Delaney
Solicitors:
Applicant: NAALAS Respondent: OPP

Judgment category classification: B Court Computer Code:
Judgment ID Number: 920033 Number of pages: 14 DIS'l'RIBUTIOBI	LOCAL

mar920033
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 274 of 1992

BETWEEN:
KELVIN BAMAGA
Appellant
AND:
ROBIN TRENERRY	\
Respondent

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 18 December 1992)

This is an appeal against a sentence imposed by the Court of Summary Jurisdiction at Darwin on 23 September 1992 in respect of offences committed by the appellant on the 20th of that month.	He was first convicted for that he unlawfully entered the Parap Hotel at 2.50am on Monday
20 September 1992 intending to commit a crime.	For that the maximum penalty which might be imposed is 7 years imprisonment.	The jurisdiction of the Court of Summary Jurisdiction, however, is limited to imposing a maximum penalty of 2 years of that period of 7 years, and he was sentenced to a period of imprisonment for 12 months.	The next offence concerned the carrying out of the crime, the

intent to commit which he held at the time he unlawfully entered the hotel, namely stealing two cartons of cans of beer.	Although not in evidence the value of those goods in Darwin was of the order of $50.	For that the maximum penalty is 7 years imprisonment, but again the jurisdictional limit in the Court of Summary Jurisdiction is
2 years imprisonment and he was sentenced to 3 months.	He had gone to the hotel from the Baggot Road Aboriginal community taking an iron bar with him and gained access by smashing the lower glass panel of one of the front doors of the parlour bar.	It is not disclosed what else, if anything, was in the refrigerator from which he took the beer.

As the appellant was driving away from the hotel, police in a police motor vehicle approached and the appellant drove away passing along suburban streets exceeding 90 kilometres an hour in parts, crossing to the incorrect side of the road in some places, turning the lights of the vehicle off and on, breaking heavily at corners and accelerating rapidly thereafter, seeking to elude the pursuing police vehicle in the process.	For that he was convicted of the offence of dangerous driving for which the maximum penalty is a $2000 fine or imprisonment for 2 years, and sentenced to 6 months imprisonment.	He did not hold a current drivers licence at the time and for that he was sentenced to one month imprisonment out of a maximum of imprisonment for 12 months.

The two sentences of imprisonment imposed in respect of the unlawful entry and stealing from the hotel were ordered to be served concurrently as were the two sentences of imprisonment arising from his driving of the motor vehicle thereafter, but the two concurrent periods were ordered to be served cumulatively, thus the total sentence was 18 months imprisonment.	He was disqualified from holding a licence to drive a motor vehicle, pursuant to the provisions of s390(9) of the Criminal Code for a period of 18 months.

The police prosecutor informed the Court that the pursuing police went to the Baggot Reserve area shortly after losing track of the appellant, identified the motor vehicle which he was driving, and later arrested him.	When interviewed, he made full admissions to the police as to the unlawful entry and stealing, saying that he did that because he had run out of beer to drink.	As to the dangerous driving, the appellant told police that he did not stop when he saw them pursuing him with the blue lights flashing as he did not want to get caught and that he considered his driving dangerous both to himself and to other persons.

He was brought before the Court on 21 September and there entered his pleas of guilty to each of the offences.	Counsel for the appellant informed the Court that he was a 30 year old Aboriginal man with a history of employment from 1987 until the end of 1991, after which he

commenced living at the Baggot community and was in receipt of unemployment benefits.	He was due to commence work in a new job about a month later.	At the time he coJlllDitted the offences he was already intoxicated.

He had been previously convicted of dishonesty and motor vehicle offences.	In 1979 he was convicted and fined
$150 on each of two charges relating to unlawful entry of a dwelling house.	In 1983 he was convicted and fined for driving a motor vehicle whilst having a blood alcohol content in excess of •08 and being unlicensed; later in th	...J same year he was again convicted of similar offences plus a further offence of breaking and entering with intent to commit an offence, for which he was likewise fined.	Later still, in 1983, he was convicted of driving a motor vehicle whilst under the influence of liquor, for which he was fined, and a little later still in the same year, for the same offence for which he was sentenced to 4 weeks imprisonment and the further offence of being an unlicensed driver for which he was sentenced to 3 months imprisonment. There were two minor and otherwise irrelevant convictions during 1984, but in 1985 he was again convicted of driving under the influence of liquor and for being unlicensed, for which monetary penalties were imposed.	Late in 1985 he was convicted for robbery in company and sentenced to 3 years imprisonment from which he escaped, and was dealt with and sentenced to a further 3 months imprisonment in March 1986. In June 1990 he was dealt with and fined for giving a false

name and possessing cannabis, and last of all in December 1991 he was convicted and fined for consuming liquor in a restricted area, receiving, a further count of consuming liquor in a restricted area and conveying liquor to a restricted area.

Notwithstanding his formidable record, his counsel stressed before the Court of Summary Jurisdiction that at the time he was before that Court he had had 6 years of "relatively good behaviour".		In making that submission counsel was no doubt endeavouring to have his Worship exclude from consideration the conviction for robbery in October 1985 as well as the previous convictions relating to motor vehicles and dishonesty.		She submitted that the offences since that time were in a minor category and that during the intervening period he had obtained and followed employment.	It was urged upon his Worship that from about 1986 the appellant had changed the direction in his life, demonstrated by his relative lack of convictions in the intervening period, his work history and the fact that he had married in about 1987.	In adjourning the proceedings so that he could consider the appropriate sentence to impose, his Worship informed the appellant that he was considering imposing a term of imprisonment for several reasons, including the dangerous driving and the question of general deterrence.	Upon the matter coming back on for final determination on 23 September, further submissions were made to reinforce what had been said before relating to the

appellant's history over the last 6 years, his Worship indicating that although that may mean he gets "a little bit less", with his record he was not entitled to J1Uch leniency. He rejected the submission that if a term of imprisonment was imposed it should be suspended either wholly or in part.

In sentencing the appellant his Worship took into account his plea of guilty as indicating a realisation.that he had done the wrong thing and showing that his prospects for rehabilitation were good.		It was also noted that a term of imprisonment would rob his spouse of his company, but hi Worship indicated that they were the only factors that he could take into account when considering leniency, although he then added that he had good prospects of rehabilitation because of his work history.	His Worship briefly reviewed the circumstances of the offences stressing the danger posed by the manner of driving, particularly when trying to elude police.	His Worship also took into account as aggravating circumstances the fact that the appellant admitted to police that he was drunk at the time he was driving (a matter for which he was not charged, but nevertheless a fact that was admitted) and that he was driving unlicensed for which he had previous convictions and had received a term of imprisonment.	"I consider that the dangerous driving situation has features of being the worst type of dangerous driving ..... I am not saying it is the worst type, what I am saying is that when a person drives to avoid apprehension by police you're getting close to the most serious sort of

dangerous driving, it's toward the top end of the scale." Even if he was a first offender, his Worship was of the view that, taking into account general deterrence, the appellant would be "looking at a gaol term".	As to the unlawful entry and stealing, his Worship noted the prior record of convictions for dishonesty offences, and despite the warnings that he had had in the past, he had little concern or little regard for the rights or property of others.	His Worship stressed that in relation to the conviction of robbery he took into account only the dishonesty aspect of that matter.	He specifically mentioned the receiving offence in December 1991.	It will be noted that that conviction was ordered at the same time as a number of others in relation to liquor on a restricted area.	His Worship was not informed that the receiving related to liquor which was being drunk on the reserve and had been stolen and brought there by some other person.	The accused's involvement was to drink the stolen liquor, and it was that involvement which brought about the other related convictions.	Taken in its context it does not seem likely that his Worship would have imposed lesser penalties in relation to the unlawful entry and stealing had he known the circumstances surrounding the receiving conviction.

Having imposed the sentences of imprisonment detailed above, his Worship went on to say that he considered that it was a matter for the Parole Board to determine a suitable time for the appellant's release on

parole, if he was to be so released.	Having imposed a sentence to a term of imprisonment of more than 12 months, his Worship was obviously declining to specify a lesser term of imprisonment during which he was not eligible to be released on parole pursuant to the Parole oL Prisoners Act (s4(1)).	"I am of the view that the offence and the driving is so serious that he should not have parole, that he should serve the full term, but the Parole Board can reconsider that".

As amended at the commencement of the appeal, tht grounds of appeal put forward were:

that the learned Magistrate erred in failing to fix a non parole period;

that the learned Magistrate erred in sentencing in respect of the unlawful entry by giving weight to the principle of deterrence;

that the learned Magistrate erred by failing to give effect to the prospects of rehabilitation of the appellant;

that the learned Magistrate erred by placing too much weight on the appellant's prior criminal record;

that the learned Magistrate erred by not taking into account the totality principle of sentencing.

The requirement to specify a lesser term of imprisonment during which the offender will not be releaaed on parole does not apply if the Court considers that the nature of the offence or offences and the antecedent of the offender do not warrant the specifying of the less.er term of imprisonment (s4(3)(a)).	His Worship failed to exercise the duty cast upon him without good reason.	(As to the word "and" being conjunctive, see the decision of this Court in Sullivan and Rigby v The Queen (1987) 26 A Crim R 205).
This was not a case where there was an oversight whereby the remedial provisions of s4(4) might be brought into play, but constituted a deliberate decision on the part of his Worship not to do what subs(l) of s4 required him to do.		But the only ground upon which he could make that decision was as set out in subs(3} and he did not give as a reason for the failure to specify the non parole period the components which might be taken into account under that subsection.	He made no reference to the antecedents of the offender in conjunction with the reference to the nature of the offences.	Certainly he had taken into account the antecedent of the appellant for the purposes of fixing the sentences he imposed, but it is by no means clear that he did that when making his decision about parole.	He restricted his reasons to the nature of the driving offence. It will be noted that the sentence imposed in respect of the

dangerous driving offence was but a one third part of thf total sentence imposed in respect of all offences, and, apart from anything else, it is not right to deprive a person of the possibility of being released on parole in respect of a total sentence of 18 months involving a nu:aber of offences, where the justification for refusing to make the order is in relation to a sentence of only 6 months in respect of one of the offences.	If his Worship meant to include all of the offences in his consideration of the parole question, then he did not say so and it is not possible to infer that that is what he had in mind.	It would be speculation.	His Worship also took into account an irrelevant consideration, that is, that the Parole Board would have power to consider the release of the appellant upon parole notwithstanding that the Court had not made an order pursuant to s4(1).	There is no such enabling provision in the Parole of Prisoners Act.

Before turning to consider the fixing of a non­ parole period, it is first necessary to determine whether or not the appeal against the sentence imposed should be allowed.	Turning to the grounds of appeal:

His Worship did not err by giving weight to the principle of deterrence in relation to the unlawful entry offence.	Clearly when this offence is directed to the theft of liquor for personal satisfaction, deterrence both general and specific

Slitfsfaetton, deterrence both- general --and.
must be	an element.

The alleged failure of the learned Magistrate to give effect to the appellant's prospects of rehabilitation, and in placing too much weight on his prior criminal record, may be	satisfactorily dealt with together.		The appellant's personal circumstances have already been described.	Given his earlier propensity for criminal conduct, the six year period of relative freedom from serious offending coupled with his employment history and job prospects, ought to have weighed fairly heavily in his favour.		His obvious remorse demonstrated by his cooperation with police and guilty pleas also count in his favour.	The fact that an offender who has a criminal record has made an effort to "go straight", ought to carry considerable weight as a mitigating factor, though it may not amount to that which would normally be given in favour of a first offender.	If those with a bad record feel that there is to be no benefit from attempts at rehabilitation then why should they bother.	It is in the interests of the community that rehabilitation be encouraged.

As to dishonesty, the appellant had suffered the one conviction for receiving in the intervening

period, and was fined $100. The maximum pena\ty is 7 years imprisonment (Criminal Code s229(4)). The dangerous driving was out of character.

The balancing in each case of the objectives of sentencing is a difficult task.	The circumstances of each offence and of the offender vary so much. The extent to which the community needs to be protected against the particular offender or others who may be	of a like mind is a matter of degree.	The sentencing options cover a considerable range.	The proper discretion of a sentencing Court is cast wide.

Where there are multiple offences due regard must be had to the principle of totality.	Street CJ. described it in Holder v Johnston (1983) 13 A crim R 375 at p389 in these terms:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences.	Not	infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality

of the criminality and the totality of the sentences.		The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone.	In carrying out this process of adjustment, it is both inevitable aa well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.	As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by	a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other).	The important factor is the practical significance of the sentencing order."

The appellant's efforts at rehabilitation over the past six years should have received greater weight.
Certainly there were dishonest blemishes, but not such as to deprive him of a substantial degree of mitigation in relation to the unlawful entry and stealing offences.	The penalty for the unlawful entry will be reduced to 6 months imprisonment.	The penalty in relation to the dangerous driving should stand.	It was the first time the appellant had been convicted of such an offence, but it was a grave example of dangerous driving warranting imprisonment for a significant period.	The remaining penalties are unexceptional.		The orders as to concurrency and accumulation were within the sound exercise of discretion.

If it were considered that his Worship was right in imposing the sentence of 12 months imprisonment for the

unlawful entry then, paying due regard to the totality principle, the sentences should have been so constructed as to lead to a final result of 12 months imprisonment.

The sentence of 12 months imprisonment for the unlawful entry is quashed and a sentence of 6 months imprisonment substituted.	All the other sentences stand as do the orders for concurrency and accumulation.	The result is the appellant is sentenced to 12 months imprisonment.
The minimum period which he must serve is 6 months and it is specified that that be the period during which he is not eligible to be released an parole.