PARTIES:	THOMAS DODD

		v

		WAYNE KENNETH NAYDA

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	JUSTICE’S APPEAL

FILE NO:	JA 56 of 1997 (9712131)

DELIVERED:	3 SEPTEMBER 1997

HEARING DATES:	5 & 6 AUGUST 1997

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:

	Appellant:	S O’Connell
	Respondent:	A. Fraser

Solicitors:

	Appellant:	KRALAS
	Respondent:	Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:	MIL970012
Number of pages:	9

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

No. JA 56 of 1997 (9712131)

In the matter of the Justices Act and in the matter
of an appeal against sentence imposed by 
the Court of Summary Jurisdiction at Katherine

		BETWEEN:

		THOMAS DODD
			Appellant

		AND:

		WAYNE KENNETH NAYDA
			Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 3 September 1997)

	This is an appeal pursuant to s163 of the Justices Act against sentence imposed by Mr McGregor S.M.

	The appellant and his co-accused, Richard James Carter, both pleaded guilty to one count that on the 26th of May 1997 at Katherine they had in their custody, personal property, namely, a Laser sedan Queensland registration number 393DFA, which at the time before making the charge was reasonably suspected of having been stolen or otherwise unlawfully obtained, contrary to s61 of the Summary Offences Act.  The maximum penalty for this offence is one year’s imprisonment, or a fine of $2,000, or both.  The learned Magistrate convicted the appellant and his co-offender and imposed upon the appellant a sentence of imprisonment for six months and ordered that the sentence be suspended after the appellant had served three months of that sentence upon conditions that the appellant place himself under the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions about employment, residence, associates and reporting.  The learned Magistrate at the same time sentenced Carter to a period of four months imprisonment and he directed that that sentence be suspended forthwith subject to the condition that he place himself under the supervision of a delegate of the Director of Correctional Services to obey all reasonable directions about employment, residence, associates and reporting and that he report at once to the court’s officer of Correctional Services.

	The grounds of appeal as set out in the Notice of Appeal (as amended) are as follows:

“1.	That the sentence imposed was manifestly excessive in all the circumstances.

2.	That the sentence imposed upon the appellant was unjustifiably disparate with the sentence imposed upon a co-offender, Richard Carter.

3.	The learned Magistrate erred in concluding that the conduct of the appellant, in all the circumstances demanded the imposition of an actual period of imprisonment.

4.	That the learned Magistrate took into account irrelevant considerations.

5.	That the learned Magistrate gave insufficient weight to the offender’s early plea of guilty, lack of prior convictions and his age.”

	The facts as accepted by the learned Magistrate were that at some time between the 20th and the 23rd of May 1997 the appellant and Carter were hitchhiking in Queensland when they were offered a lift by another person who had in fact stolen the Laser sedan.  The theft had apparently occurred on the 20th of May.  When the appellant and his co-offender arrived at Mackay, the thief left the vehicle with the appellant and Carter. 

	The circumstances in which the vehicle was handed over appear to have been that when the vehicle had stopped at Mackay, the appellant had engaged himself in a conversation with the owner of a photographic studio who was nearby.  The appellant apparently had an unique hair style and the owner of the studio and the appellant were discussing terms upon which the appellant would agree to have his photograph taken.  Before the appellant had left with the photographer for this purpose, the thief of the vehicle came up to him, gave him the key and said, “This is my stop.  You guys can take the car.”  The appellant was taken aback by that and asked the driver to hang around, saying that he would be back shortly with some more money from the photographer.  When he returned the thief had gone.

	The appellant had been told by the thief on the way to Mackay that the vehicle belonged to the thief’s girlfriend with whom he had had an argument, but it was only at the stage when the keys were handed over to the appellant that he had a suspicion that the driver did not have authority to deal with the car in this manner.  The appellant, who had been on a disability pension for some time and was leaving a somewhat nomadic lifestyle, had left the Byron Bay area to go to Darwin where he believed he had several relatives whom he intended to visit.  Subsequently, the appellant and Carter then drove the vehicle to Townsville where they met up with other persons and then proceeded to drive to Katherine in the Northern Territory, arriving on Monday the 26th of May.  They were later arrested that day and taken to the police station.  Both the appellant and Carter made admissions, although Carter denied that he was present when Dodd was given the keys.  Nevertheless he supposed something along the lines of what the appellant said had happened, had in fact occurred.  

	The primary ground argued by counsel for the appellant, Mr O’Connell, was the disparity between the sentence imposed upon the appellant and that imposed upon his co-offender.  It was submitted that in accordance with the principles discussed by the High Court in Lowe v The Queen (1984) 154 CLR 606, a sentence of imprisonment for six months, partially suspended after having served three months, was so disparate from a sentence of imprisonment for four months fully suspended as to warrant the intervention of this court.

	As Gibbs CJ said in Lowe v The Queen, supra, at 609:

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part in which he or she played in the commission of the offence, have to be taken into account.”

	So far as the objective circumstances of the offences are concerned, and the part which the appellant and Carter had to play in them, it is difficult to see that there is any difference of significance between the appellant and Carter.  True it is that the appellant was the person who was given the keys, but it must have been very obvious to Carter at the time when he and the appellant left Mackay that the thief would have been most unlikely to have given the car and the keys to the appellant if the property was his to give away.  It is doubtful whether the learned Magistrate differentiated between them on this basis either.  His Worship said on the one hand:

“I am clear that Thomas Dodd had very good reason himself to believe that this vehicle had not been come by honestly, but that Carter was to a degree running along behind.  By the time they were in Katherine, of course, Carter was well in it and doubtless he was committed to the adventure long before that.”

	Then, after referring to the fact that Carter was born in 1972 and Dodd in 1953, His Worship went on to say that:

“This does not necessarily mean that Dodd was the leader of the push.”

	As to the personal circumstances of the appellant and Carter, apart from the age difference, (the appellant is 43 and Carter was 24) there was little of relevance to distinguish them.  No convictions were alleged against the appellant or against Carter.  The appellant was divorced and had two children, aged 18 and 21.  Carter was a single man.  The appellant had worked as a labourer but had not worked for some time.  He was an alcoholic on a disability pension.  Carter was unemployed at the time but had a good work history.  The appellant had been leading a nomadic lifestyle.  Carter was proceeding to Darwin where he hoped to find employment.  He had been out of work for approximately three weeks but was not in receipt of any unemployment benefits.

	Counsel for both Carter and the appellant revealed to the court, notwithstanding that no prior convictions were alleged against their clients, that in the case of Carter, he had some on-the-spot fines in relation to drinking matters; and in relation to the appellant, that he had “been caught just for drinking in public and other drink related offences ... but a lot of minor drink related (matters).”  It is not clear from this whether the appellant had received on-the-spot fines, or whether he had been dealt with by a court.  Apart from that matter, during the course of proceedings counsel for the appellant revealed that the appellant at the moment had no wish to do anything about his alcoholism.  

	It would appear that the learned Magistrate sought to differentiate between the appellant and Carter on two grounds: first, the age discrepancy; and secondly the fact that the appellant was an alcoholic who did not wish to do anything about having his condition treated.  As to the latter point, it seems to me that the appellant’s alcoholism really had nothing to do with this case.  There was no suggestion that the offence was committed at any time because the appellant was drunk or that his alcoholism had in any way contributed to the offence.  As to the disparity in age, I do not think that that was a sufficient reason to differentiate between the two men.  It could hardly be contended that Mr Carter was a young offender, yet the learned Magistrate considered the difference important.  He said this:

“But Dodd has about a generation of experience on top of Carter’s and I do regard Carter comparatively as the innocent.  I am much more concerned at the prospect of locking up Carter at his age for the first time than I am at the prospect of locking up the experienced Mr Dodd - experienced in life.”

	I do not think that the age difference was such as to warrant the difference in disposition which the learned Magistrate took.  Obviously age can be a factor as it may have a bearing upon the question of who was the prime offender.  In the case of young offenders it may in itself be sufficient reason to impose disparate sentences.  But here the appellant was a person of 43 years of age who had been an alcoholic for some time and yet had not offended in any serious way.  His co-offender Carter was of course much younger, and not an alcoholic, although he had had some drink-related fines.  Sometimes it is not unreasonable to infer from the circumstances that a more mature person is more blameworthy than a younger person for a particular offence because the experience in life of an older person ought to have made the blameworthiness of the conduct and the consequences to the victim more obvious.  But I do not think this was such a case.

	It was not suggested by counsel for the Crown that the sentence imposed upon Carter was manifestly inadequate, and for my part I consider that it was well within the range of the Magistrate’s sentencing discretion.  Accordingly considerations such as arose in the case of Amagula v Jeffrey (unreported Mildren J, 16 July 1996) do not apply.

	In the circumstances, I consider that there was no just reason to differentiate between the appellant and Carter.  Accordingly ground two of the appeal is made out.  It is therefore unnecessary to consider the other grounds of the appeal.

	The appeal is therefore allowed.  The sentencing orders made by the learned Magistrate are quashed.  In lieu thereof I impose the following sentencing orders:

1. 	The appellant is convicted and sentenced to imprisonment for 4 months commencing from the 27th May 1997.

2.	I direct that the sentence is suspended forthwith upon the appellant entering into a recognizance, self, in the sum of $500 to be of good behaviour for a period of 12 months.  I specify a period of 12 months from the 27th of May 1997 when the appellant is not to commit another offence punishable by imprisonment.

	I have considered whether I ought to order that the appellant be placed under the supervision of a delegate of the Director of Correctional Services.  This order was made in relation to the co-offender Carter.  I am unable to see what purpose is to be served ordering supervision in a case like this.  The provisions relating to supervision originally imposed by the learned Magistrate required the appellant to obey all reasonable directions about employment, residence, associates and reporting.  Given that the appellant has no prior convictions and is a transient, unemployed person living on a disability pension conditions about employment and residence seem out of place.  The condition relating to associates also seems out of place in respect of a man who is 43 years of age with no prior convictions.  There is no suggestion that the appellant or for that matter anyone else was led into the commission of this offence by people with whom they had habitually associated.  Nor does it seem to me that there are any circumstances warranting supervision in the appellant’s case.  True it is that he is a transient and an alcoholic, but this is still a free country and so long as the appellant does not breach the law he is entitled to so remain, even though many people might think little of him for so doing.  But this is not in itself a reason for ordering supervision, which is part of the court’s armory for the rehabilitation of offenders, not the rehabilitation of social misfits.  There being nothing to suggest that the appellant’s lifestyle contributed to his offending on this occasion, such a condition appears to me to be unnecessary and I decline to impose it.