PARTIES:	THE QUEEN

v

WALKER, Wilson Jagamara

TITLE OF COURT:	SUPREME COURT (NT)

JURISDICTION:	CRIMINAL

FILE NO:	46 of 1993

DELIVERED:	1 SEPTEMBER 1994

HEARING DATES:	1 SEPTEMBER 1994

JUDGMENT OF:	MARTIN CJ.

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Recognizances - Breach - Generally - Practice - Convictions activating suspended sentence - Factors taken into account -

Criminal Law (Conditional Release of Offenders) Act (NT), s6(3)

Higgins v Goldfinch (1981) 26 SASR 364, referred to.

REPRESENTATION:

Counsel:

Crown: Alexis Fraser Accused: Lorraine Liddle

Solicitors:

Crown: DPP Accused: CAALAS

Judgment category classification: B Judgment ID Number:  mar94014 Number of pages: 11

LOCAL DISTRIBUTION

mar94014

IN THE SUPREME COURT
OF THE  NORTHERN  TERRITORY OF AUSTRALIA AT ALICE SPRINGS

No. 46 of 1993

BETWEEN: THE QUEEN

AND:

WILSON JAGAMARA WALKER

CORAM:	MARTIN CJ.

REMARKS ON SENTENCE

(Delivered 1 September 1994)

Wilson Jagamara Walker, on 10 February this year you were sentenced by me in this Court to three years imprisonment, which was backdated to 27 May 1993, upon your plea of guilty to manslaughter.	You had stabbed a man in the course of a brawl when you were apparently going to the aid of a relative who was being violently assaulted by other people.	The man you stabbed died as a result of the wound that you inflicted upon him.

In all of the circumstances that were then put before me, including evidence that you were liable to suffer further punishment in accordance with Aboriginal ways, the sentence was suspended forthwith upon your entering into a bond to be of good

behaviour for two years.	By that bond you accepted the supervision of the Director of Correctional Services.	It now appears, as you have acknowledged, that you have since been convicted of other offences committed after you entered into that bond.

On 24 June 1994 in the Court of Summary Jurisdiction at Katherine you were convicted for driving whilst having a blood alcohol level in excess of .08, and of driving whilst unlicensed. For that you were fined a total of $700.	On 24 August 1994 you were convicted by the court at Yuendumu, that firstly on 22 July at Katherine you drove while having a blood alcohol content of .121 percent, and being a person who had been disqualified from holding a driver's licence you were driving, and that you drove a motor vehicle on a public street without due care.

For the first offence you were fined $500, your licence was cancelled and you were disqualified from holding and obtaining a licence for a further period of 12 months.	On the second offence, that is the driving while disqualified arising from the original convictions, it was ordered that you be imprisoned for a month. For the third offence of driving without due care, you were convicted but not ordered to pay any penalty apart from the statutory victims assistance fund levy.	At the same time and date you were also convicted that on 6 August 1994 at Lajamanu you drove a motor vehicle with a blood alcohol content of .167 and again for driving while disqualified.

On the driving offence itself: $800 fine and your licence cancelled for 18 months.	On the second offence, that is the second offence within a short space of time, driving while being disqualified, you were ordered to prison for two months cumulative on the sentence on the other occasion, that is a total period of three months imprisonment, plus substantial fines.	I assume you will be unable to pay those fines since you are going to be in prison and that you will be spending further time in gaol for the appropriate period to equate to the quantity of those fines.	The two last sets of matters were dealt with at the one time by the same magistrate while sitting at Yuendumu, that is the driving offences in Katherine and Lajamanu.

The Crown now seeks to have you dealt with for that you have been convicted of all of those offences during the period of a good behaviour bond.	The Criminal Law (Conditional Release of Offenders) Act provides that upon such a conviction you may be brought back before the Court which sentenced you in the first place and whether those convictions are recorded in or outside the Territory, being offences that you committed during the period of your good behaviour bond.

In such a case this Court may commit you to prison to undergo imprisonment for such term, being a term not exceeding the balance of the original sentence, that is two years and three months.	The Court does not look to your behaviour to determine whether you failed to be of good behaviour.	It seems on a reading

of subs(3) of s6 of the Act that that is no longer a test.	The criteria which brings you back here is the convictions themselves for the offences referred to.	Discussion about whether your conduct amounted to a breach of an undertaking to be of good behaviour is not therefore to the point any more, see for example Higgins v Goldfinch (1981) 26 SASR 364.

Nevertheless the Court still has a discretion as to whether it ought to exercise its powers in respect of the suspended portion of the sentence and if so, what it should do.	The first question is whether the offences for which you were sentenced in the Court of Summary Jurisdiction should lead to the activation of the suspended sentence.	It is well to bear in mind that in entering into the bond you must be taken to have understood that if you were convicted of any offence during the currency of it you stood to be returned to prison to serve out the balance of the suspended sentence, as a maximum.

That is a statutory condition imposed upon release pursuant to a suspended sentence.	It is not to be taken lightly by those who take advantage of the opportunity offered to secure conditional release from incarceration, nor can it be treated lightly by the courts.	The parliament has provided that a conviction is a trigger which may lead to the offender going back to gaol.	But it is a matter for the Court as to whether the trigger is pulled.	There are a number of matters to be considered before coming to a decision in the exercise of the discretion which must

be made in the light of all the circumstances.

For example: what was the offence for which you were convicted?		In this case we are talking about the original conviction for manslaughter, in the circumstances I have already described.		It was regarded as being a killing in the course of defence of another, which defence of that other person was excessive.		What was the period of the bond?	Two years.	What of that period has elapsed before the commission of the further offences?	The conviction is the fact giving rise to the exercise of the Court's jurisdiction, but the date of the offending is the relevant date for consideration of the degree to which the offender has observed the obligations and conditions accepted by him by entering into the bond.

The offences in this case - the first one was on 10 June 1994, about four months after you were released on your bond; the next series on 22 July, a little over five months from the time you were released on the bond; the next series on 6 August, a little less than six months after you were released on the bond.	If, as in a case like this, there is more than one conviction relied upon the question is: should any of the earlier or the earliest of them be given much weight when those with authority to do so do not seek to activate the committal proceedings at the time.	The prosecutorial discretion to invoke the powers of the Court, if not exercised promptly may result in unfairness to the offender if he or she is subsequently subjected to time in gaol.	If the matter

is not dealt with promptly the offender may be entitled to consider that it is not intended to proceed further against him or her or that offending of that type will not be regarded seriously enough to warrant the bringing of committal proceedings. Additionally an opportunity may have been lost for the Court to deal with the offender by way of a warning or admonition which may have resulted in his offending no more.

Just because there is more than one conviction, it does not necessarily follow that the scales are weighed more heavily against the offender.	Of course, if there was more than one separate set of incidents giving rise to the offences, then that may demonstrate an attitude on the part of the offender of such disregard for his undertaking and the authority of the law that the sanction provided for of committal back to prison should be employed.	In this case the first conviction occurred on 10 June 1994 and although it will be taken into account, it does not carry much weight, given the time which elapsed before it was sought to invoke the powers of this Court in respect of it.	The second and third convictions were only a few days ago and the application has been brought promptly.

As with all options in regard to punishment, the Court must take into account that its end obligation is the protection of the community. Conditional release is usually allowed where it is considered that the offender ought to be permitted to serve part of the sentence in the community, partly upon the basis that

there is not likely to be any further threat to the community, and further upon the basis of his or her prospects of rehabilitation; that they are likely to be improved by such a step. Both of those possible outcomes have not prevailed in your case. The community has not been totally protected. It has been further threatened by your subsequent criminal offending - though, and it is important to note, no harm has been done - and you have not demonstrated that you accept the need to behave in a responsible manner.

The events which led to your recent convictions were of varying degrees of seriousness under the criminal law.	The June offence involved you driving with a blood alcohol content of .137. Not an insignificant amount, but far from being very serious.		It was not your driving that brought you to the attention of the authorities, but a random breath testing station.	You had no excuse for your driving without a licence; that is hardly a serious matter in this context.	In August the first set of offending had taken place in Katherine and the details of the particular offences I have already given: .121 blood alcohol content and, being disqualified, you drove a motor vehicle on a public street.	You were also charged and convicted of driving a motor vehicle on a public street without due care, and it appears that you ran into the back of a turning caravan.	There is no information before me to suggest that it was more serious than the magistrate regarded it in simply convicting you without penalty.	In respect of the later offences committed on 6 August 1994 at Lajamanu, your blood alcohol content was .167 and again you drove while disqualified.

It is open to this Court in all the circumstances of this case to overlook the convictions, or any of them, as not warranting any action, or to admonish you with a warning that a further conviction or convictions may well result in serious consequences; that is, a committal to prison for a significant period, or to commit you to prison for any period up to the balance of the original sentence, two years and three months, with or without an order that you be again granted the privilege of conditional release, or in the event of committal to prison for a period in excess of 12 months, to make an order that you not be eligible for release upon parole for a specified period.	All of those courses are available in the exercise of the discretion whether to commit you to prison or not and, if so, under the provisions of the Criminal Law (Conditional Release of Offenders) Act.	The submissions made on your behalf in mitigation of the punishment under consideration are firstly that the Court has a wide discretion; secondly, that there were degrees of defiance involved in your conduct.	But that was directed more to your disqualification from driving and was not particularly related to the bond upon which you entered in relation to this offence.	In any event, the degrees of defiance displayed in relation to those matters have been dealt with and quite harshly in that Court; I do not say not well deserved.

In any event, it is not quite right to say that there has been no defiance of this Court. The mere fact of your having offended further shows a lack of appreciation, at least, of your obligations under the bond. You were dealt with on the one day

in the Court of Summary Jurisdiction and it was suggested that, as a matter of law, that only amounted to one offence.	Now, that may or may not be correct in respect of some aspects of the administration of criminal law, but I certainly do not take it into account as something in your favour in respect of this aspect of administration of the criminal law.

What I do take into account, however, is that there was no opportunity after your first lot of post release offending for you to be brought before this Court to be dealt with and perhaps warned or admonished of the risk you ran if you did not start to act in a more responsible manner.	That was fortuitous, and it may work in your favour.	There are some extenuating circumstances attending upon the commission of all the offences, as has been put to me by your counsel and I need not reiterate them.	You will have to serve three months under sentence and that should bring home to you that driving while you are drinking and while disqualified is a most serious matter and likely to involve you in further times in gaol should you offend in that way again.	You say you are sorry about those things and consider what you then did as being stupid. Well, I can only hope that you are being honest to yourself when you say those things.		It was also part of the submissions, which must weigh with me, that the offences for which you were convicted on these recent occasions had nothing to do with the type of offence for which you were convicted back in February.

It is not appropriate that any action should be taken

in regard to the June convictions.	About two months elapsed before anything was done about it and it was quite a different type of offence to that for which the sentence was suspended, and you caused no harm to anybody in that particular series of events.	In this context it is not so serious an offence as to warrant any action. As to the later convictions, dealt with on 24 August, however, action has been promptly taken and although the offending was different from that for which the sentence was suspended, the circumstances are serious.	But I note, again, that there is difference between the two types of offending.

Your continuing offending in this way shows a disregard of the lawful authority of the courts on your part. You have of course been punished for all those things in the Court of Summary Jurisdiction and the question now is whether this Court should send you back to gaol for the original offence because of it, and I must tell you that I was on the verge of doing so. You have missed an opportunity, which has perhaps operated in your favour, and that is that you have not as yet had to confront this Court for a breach of bond and for you to be given the opportunity to understand how serious it is as far as this Court is concerned. On a fine balance it is not appropriate that you be committed to prison for any part of the unexpired sentence for the manslaughter.

Your present confinement may have the effect of deterring you from further offending of driving under the influence and the like, and I note that no violence to any person was involved.

It is of course open to this Court, notwithstanding all that, to see that you go back to gaol for a time in relation to the manslaughter offence, but I do not propose to do so.

But I do tell you this. You are warned, that should you be convicted again of any form of offence during the remainder of the period of the bond you may not be dealt with so leniently. The fact that you have been warned that you should take your undertaking seriously will be known to this Court the next time you offend, if you do, and this may well be your last chance.