Manakgu v Malogorski [2003] NTSC 34

PARTIES:	JOBIE MANAKGU

	v

	MARK ANTHONY MALOGORSKI

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA 55/2002 (20108439)

DELIVERED:	10 April 2003

HEARING DATES:	7 April 2003

JUDGMENT OF:	BAILEY J

REPRESENTATION:

Counsel:
	Appellant:	R Jobson
	Respondent:	M Johnson

Solicitors:
	Appellant:	NAALAS
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	bai0304
Number of pages:	12

bai0304

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Manakgu v Malogorski [2003] NTSC 34
No. JA 55/2002 (20108439)

	BETWEEN:

	JOBIE MANAKGU
	Appellant

	AND:

	MARK ANTHONY MALOGORSKI
	Respondent

CORAM:	BAILEY J

REASONS FOR JUDGMENT

(Delivered 10 April 2003)

[1]	On 27 March 2002, the appellant pleaded guilty to four charges:-
(1)	unlawful entry to a building at night with intent to steal
(2)	stealing one carton of beer valued at $30
(3)	unlawful damage to property (namely a beer storage shed) to the value of $100
(4)	consuming liquor, namely 20 cans of VB beer, in a restricted area.
[2]	The facts which were not the subject of any dispute were summarised by the Crown in the following terms:
“... the facts are that at about 1 am on 15 May of 2001, the defendant, together with eight co-offenders, attended at the rear of the Gunbalanya Sports and Social Club.  The defendant stood outside the perimeter fence beside the large green storage shed located at the rear of the club whilst other members of the group jumped the fence and unscrewed and bent open a steel panel on the side of the storage shed.
The defendant then observed co-offenders entering into the shed and hand out to other co-offenders a number of cartons of beer who then passed the cartons of beer out over the rear fence to the defendant and two other co-offenders who were waiting at the fence.  The defendant, together with co-offenders, were disturbed by club staff in the process of removing the cartons of beer and they ran off, carrying the beer into bushland at the rear of the social club.  They then consumed the quantity of beer.  The defendant consumed approximately 20 cans of Victoria Bitter beer.
At the time of the offence the Oenpelli community was a restricted area and the defendant was not the holder of a liquor permit.  At no time was the defendant given permission to enter the premises, damage any property or remove any property.
On 7 June 2001 the defendant attended at the Oenpelli Police Station where he took part in a record of interview and he made admissions during the record of interview.  He was subsequently charged and bailed.  The value of the carton of beer is $30 and the total value of damage caused to the storage shed was $100.”
[3]	The learned magistrate imposed an aggregate sentence on Counts 1 and 2 (unlawful entry and stealing) of imprisonment for 12 months.  His Worship ordered that the sentence was to be backdated to 30 October 2001 and the appellant released on 28 November 2001 with the balance of the sentence suspended for a period of 12 months from 27 March 2002.  It was a condition of the partly suspended sentence that the appellant submit to the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions as to residence, employment, associates and reporting.
[4]	On Counts 3 and 4, the learned magistrate imposed an aggregate sentence of four weeks imprisonment to be served concurrently with the sentence imposed on Counts 1 and 2.
[5]	The appellant had committed the four offences on 15 May 2001 – 9 days after his 18th birthday.  He had been released from the Don Dale Detention Centre on 1 May after serving around 7 weeks of a 10 week sentence of detention for 3 previous unlawful entries and stealings.  The balance of that sentence of detention had been suspended for a period of 9 months.  The appellant’s conviction on 27 March 2002 of the four new offences placed him in breach of that partly suspended sentence.  The appellant admitted the breach and the learned magistrate ordered that the appellant serve the outstanding period (which his Worship calculated as 3 weeks and 1 day) with effect from 27 March 2002.
[6]	The appellant, by a notice of appeal filed on 16 April 2002, sought to appeal against the severity of the sentences imposed for the four new offences for which the appellant had received an effective sentence of 12 months imprisonment suspended after 30 days for a period of 12 months from 27 March 2002.  The grounds of appeal were that the sentence was manifestly excessive, the learned magistrate did not give sufficient weight to the appellant’s plea of guilty and that the learned magistrate erred in failing to give proper consideration to alternative dispositions to imprisonment.
[7]	Initially the appellant did not seek to appeal against the learned magistrate’s decision to order that the appellant serve the outstanding balance of his partially suspended sentence.
[8]	When this matter first came before this Court on 29 January 2003, it became apparent that the appellant had intended to appeal against the learned magistrate’s decision to restore that outstanding balance.  On 14 February 2003, Mr Bryant of NAALAS, the appellant’s solicitors, filed an affidavit in support of an application for leave to appeal out of time together with an additional notice of appeal seeking to appeal against the restoration of the appellant’s partially suspended sentence.  The grounds of appeal are that the restoration of the suspended sentence was “cumulative in effect and contrary to the presumption under s 43(6)(b) of the Sentencing Act” and that the learned magistrate erred in restoring the suspended sentence in this manner by failing to give due weight to the principles of totality.
[9]	In his affidavit of 14 February 2003, Mr Bryant explains that the failure to appeal against the restoration of the appellant’s partly suspended sentence was an oversight on behalf of the appellant’s former legal representative who had represented the appellant before the Court of Summary Jurisdiction.  The appellant’s former legal practitioner had mistakenly believed that in appealing against the effective sentence of 12 months imposed for the new offending, this would extend to challenging the restoration of the appellant’s partially suspended sentence.  The explanation for the failure to appeal against the restoration of the partially suspended sentence is scarcely satisfactory, particularly having regard to the notice of appeal filed on 16 April 2002.  That notice makes no reference at all to the restoration of the partially suspended sentence nor to the grounds of appeal (concerning s 43(6)(b) of the Sentencing Act and the principle of totality) which are now sought to be advanced.  However, since the fault lay entirely with the appellant’s former legal representative rather than the appellant, I consider that the appellant should not be deprived of an opportunity to challenge the restoration of his partially suspended sentence.  Further, the extension of time is not opposed by the respondent.  Accordingly, I grant leave for the appellant to appeal out of time.
[10]	At the hearing of the appeal, Mr Jobson for the appellant also made application and was granted leave to add a third ground to the additional ground of appeal, namely:
“The learned magistrate erred in purporting to exercise jurisdiction in the Court of Summary Jurisdiction under the Sentencing Act to restore a partially suspended sentence which had been imposed under s 53(3) of the Juvenile Justice Act”.
Appeal against sentence of 12 months imprisonment, suspended after service of 30 days
[11]	The learned magistrate imposed an effective sentence for the appellant’s four new offences of imprisonment for 12 months, suspended after service of actual imprisonment of 30 days with an operative period of 12 months from 27 March 2002.  The learned magistrate backdated the sentence to run from 30 October 2001 to 28 November 2001 – a period during which the appellant had been remanded in custody after breaching the terms of his bail.
[12]	Mr Jobson does not seek to challenge the length of the period which the appellant was ordered to serve in custody.  He concedes that a total of 30 days actual custody for the appellant’s four offences is within the range of a sound exercise of sentencing discretion.  Mr Jobson’s complaint was directed at the total sentence of 12 months imprisonment imposed by the learned magistrate.
[13]	Mr Jobson focussed his submissions upon the issue of whether the sentence was manifestly excessive.  Mr Jobson emphasised the lack of pre-meditation or planning; the relatively minor role played by the appellant; his co-operation; plea of guilty; his youth (having attained the age of 18 only 9 days before the offences) and the absence of further offending in the ten months preceding the hearing of 27 March 2002.  Mr Johnson, for the respondent, countered the submissions on behalf of the appellant by reference to the fact that the appellant had participated with a large number of co-offenders in a burglary of premises at night; the premises were damaged to gain entry; liquor restrictions had been breached; the appellant had a substantial record of similar offending; had been released from a detention centre only two weeks before the offences and the offending put him in breach of a partially suspended sentence for earlier offending of the same nature.
[14]	Neither the appellant nor respondent produced any statistical material to suggest what might be the current range of sentences for offending of the present kind in the Oenpelli region, or more generally, in the Territory.
[15]	Initially, in light of the respective submissions of the appellant and the respondent, I was inclined to dismiss this aspect of the appeal on the basis that the appellant had failed to establish that the 12 month sentence (suspended after 30 days in custody) was manifestly excessive, in contrast to being a stern sentence in all the circumstances for an offender who had only just attained the age of 18.  In his reasons for sentence, the learned magistrate emphasised the small but necessary part that the appellant had played in the offences and clearly indicated that the sentence imposed included a substantial element of both general and personal deterrence.  With respect, I agree that his Worship was correct to adopt that approach in all the circumstances of the particular offending and the particular offender.  However, there is another aspect of this matter where counsel for the appellant and the respondent are largely in agreement.  Both Mr Jobson for the appellant and Mr Johnson for the respondent agree that the learned magistrate failed to give sufficient weight to the principles pertaining to parity in sentencing (see R v Lowe (1984) 154 CLR 606).
[16]	I hasten to add that any error in this regard was not entirely of his Worship’s own making.  Counsel then representing the respondent (not Mr Johnson) informed the learned magistrate that three of the appellant’s eight co-offenders had been dealt with by the courts.  With respect to one, Malakai Manakgu, the learned magistrate was informed that he “received five month’s imprisonment and that was coupled with further offending”.  In fact, Malakai Manakgu, in relation to the incident giving raise to the offences committed by the appellant was charged only with receiving stolen property and received a sentence of 28 days detention from the Juvenile Court.  This sentence was ordered to run concurrently with a sentence of detention for 5 months imposed for other (unrelated) offending.
[17]	The learned magistrate was also informed that one, Edmond Nayilbidj, was sentenced to 14 days imprisonment with respect to unlawful entry, stealing and liquor offences in similar terms to those faced by the appellant.  His Worship was also told that Nayilbidj had “no prior offences”.  This was incorrect.  He is considerably older than the appellant and has a similar record of property offending.
[18]	Since the appellant was sentenced on 27 March 2002, it has come to light that two other adult offenders involved in the incident of 15 May 2001 at the Gunbalanya Sports and Social Club have been sentenced:
Dallas Kelly, who I am told is a similar age and has a similar record of property offending to the appellant, was convicted and released on a good behaviour bond for a period of 2 years in relation to the offences at the Club – but the precise nature of his convictions is unclear; and
Brinton Nayinggul, who I am told is 3 or 4 years older than the appellant and a person with a substantial criminal record, was sentenced to imprisonment for 3 months for four offences in similar terms to those of which the appellant was convicted.  On the same occasion he received an aggregate sentence of 3 months imprisonment to be served concurrently for two offences of assaulting police officers.
[19]	I consider that, having regard to the sentences imposed on his co-offenders, the appellant would be entitled to feel a justifiable sense of grievance if his effective head sentence of imprisonment for 12 months, suspended after 30 days, were allowed to stand.  In all the circumstances, I allow the appeal against this sentence.  I will refer to this further later in these reasons after addressing the other aspect of the appellant’s appeal.
Appeal against restoration of partially suspended sentence with effect from 27 March 2002
[20]	On 20 March 2001, the appellant had been sentenced to detention for an effective period of 10 weeks with respect to his conviction of 3 unlawful entries and associated stealings together with a breach of recognizance.  The sentence was backdated to 14 March 2001 and ordered to be suspended on 1 May 2001 with an operative period of 9 months.  In consequence of his conviction of the 4 new offences committed on 15 May 2001, the learned magistrate ordered the appellant to serve the outstanding balance of his partially suspended sentence with effect from 27 March 2002. 
The learned magistrate calculated the outstanding balance of the sentence as 3 weeks and 1 day – in fact the period from 14 March to 1 May 2001 is precisely 7 weeks and the outstanding balance was 3 weeks.
[21]	Mr Jobson submitted that it is clear from the transcript of 27 March 2002 that the learned magistrate was dealing with the appellant in the Court of Summary Jurisdiction for offences committed after the appellant had reached the age of 18 years.  The partially suspended sentence imposed on the appellant on 20 March 2001 had been imposed by the Juvenile Court.  In Mr Jobson’s submission, the learned magistrate had no jurisdiction under the Sentencing Act, Justices Act or any other Act to deal with the appellant’s partially suspended sentence in the Court of Summary Jurisdiction.  Mr Johnson concedes that was so, but submits that the learned magistrate’s error was one of form not substance.  With respect I agree.
[22]	It is clear that the learned magistrate, when dealing with the appellant’s partially suspended sentence could and should have formally opened the Juvenile Court to deal with the breach of that sentence after having convicted the appellant, as an adult, of the four new offences in the Court of Summary Jurisdiction (see Lansen [2003] NTSC 5, unreported decision of Thomas J, delivered 25 February 2003 for a similar situation).  However, it is also quite clear from a complete reading of his Worship’s reasons for sentence that he was aware that the appellant had received the partially suspended sentence as a juvenile and had breached that sentence by re-offending as an adult very shortly after his release from the Don Dale Detention Centre.
[23]	I agree with the submission of Mr Johnson that, having regard to the fact that the appellant re-offended little more than two weeks after his release from seven weeks in detention for offending of the same character, it was entirely proper for the learned magistrate to order the appellant to serve the outstanding balance of three weeks.  The appellant had previously breached a good behaviour bond and the current breach of his suspended sentence was flagrant.  The principle of totality did not require that the restored sentence be served with the custodial element of the sentences imposed for the new offending (even assuming that notwithstanding s 53AN of the Juvenile Justice Act it would have been possible to backdate the restoration of the sentence).  The learned magistrate’s exercise of discretion to order the appellant to serve the outstanding balance of the partially suspended sentence was not manifestly excessive.  Irrespective of any jurisdictional error (in form rather than substance) I am not persuaded that the learned magistrate’s sentencing discretion miscarried.
[24]	I allow this part of the appellant’s appeal only to the extent of correcting the learned magistrate’s arithmetical error in calculating the outstanding period as 22 rather than 21 days.
[25]	As to the appropriate sentence for the appellant’s four new offences of 15 May 2001, I am satisfied that I have available sufficient information to re-sentence the appellant.
[26]	I allow the appeal to the extent previously indicated.  I set aside the appellant’s sentences of 12 months imprisonment, suspended after 30 days and four weeks imprisonment imposed for the offending of 15 May 2001.  With respect to the offences of unlawful entry, stealing and unlawful damage to property, I confirm that the appellant is convicted and I impose an aggregate sentence of imprisonment for 30 days, backdated to 30 October 2002.  With respect to the offence of consuming liquor in a restricted area, the appellant is convicted and discharged without further penalty.  I also confirm the learned magistrate’s order that the appellant pay $45 in compensation with two days imprisonment in default and be allowed four months to pay (with effect from 27 March 2002).
[27]	With respect to the appellant’s breach of his partially suspended sentence, I confirm that the appellant is to serve the outstanding balance of 21 days (corrected from 22 days) with effect from 27 March 2002.
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