PARTIES:	VINCENT HENRY JANIMA
	
	AND:

	STEVEN MARK EDGINGTON

TITLE OF COURT:	In the Supreme Court of the Northern Territory of Australia at Alice Springs

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

FILE NO:	No. 	36 of 1995

DELIVERED:	6 September 1995

HEARING DATES:	28 August 1995

JUDGMENT OF:	MILDREN J 

CATCHWORDS:

Criminal Law - Driving offences - Appellant convicted of driving an unregistered motor vehicle, without a current compensation contribution, whilst disqualified - Magistrate imposed sentence of 6 months imprisonment, 18 months disqualification and fines
Criminal Law - Appeal and New Trial, Pardon and Enquiry subsequent to conviction - Appeal and New Trial - Appeal against sentence - Appellant's prior convictions, personal circumstances given due weight by Magistrate - Sentence not manifestly excessive
Criminal Law - Appeal and New Trial, Pardon and Enquiry subsequent to conviction - Appeal and New Trial - Appeal against sentence - Principles guiding exercise of sentencing discretion discussed - Requirement that Magistrates give adequate reasons for their decisions

Legislation

Traffic Act 1987 (NT), ss 31(1), 33(1), 34(1)

Cases

House v The King (1936) 55 CLR 499, 504‑5, followed.
Cranssen v The King (1936) 55 CLR 509, 519‑20, mentioned.
Mason v Pryce (1988) 53 NTR 1, mentioned.
Seears v McNulty (1987) 89 FLR 154, mentioned.
Watton v Carrick (1980) 5 NTR 17, mentioned.
Hill v Arnold (1976) 9 ALR 350 at 356, approved.
Jambajimba v Dredge (1985) 33 NTR 19 at 22, approved.
Bartusevics v Fisher (1973) 8 SASR 601, approved.
Nabanardi v Minner (1992) 62 A Crim R 325 at 332, approved.

REPRESENTATION:

Counsel:

	Appellant:	Mr B de Mars
	Respondent:	Mr P Murphy

Solicitor:

	Appellant:	CAALAS
	Respondent:	DPP

JUDGMENT CATEGORY:	CAT C
JUDGEMENT ID NUMBER:	MIL95015
NUMBER OF PAGES:	7

IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
	No 36 of 1995

	BETWEEN:
	VINCENT HENRY JANIMA
 	Appellant

	AND:

	STEVEN MARK EDGINGTON

	Respondent

CORAM:  MILDREN J

	REASONS FOR JUDGMENT
	(Delivered 6 September 1995)

This is an Appeal against sentence imposed by a Magistrate sitting as the Court of Summary Jurisdiction at Ali Curung in the Northern Territory on 22 May 1995.

On 21 April 1995 at about 3.50pm the defendant was driving a motor vehicle in a north bound direction along the Stuart Highway in the area of the Ali Curung turnoff.  Police observed that the vehicle had a smashed windscreen, and on stopping the appellant they also noticed that the vehicle was not displaying a current registration label.

When asked for his driver's licence the appellant replied, "It's finished."  It was later revealed that the appellant had been disqualified from holding or obtaining a driver's licence for a period of 12 months from 10 January 1995.  Further investigations revealed that the motor vehicle's registration had expired on 18 November 1994.

When asked to give a reason for driving the vehicle the appellant replied that he was taking the car to Wycliffe Well for Tommy Jungala.

On 22 May 1995, the appellant pleaded guilty to the following charges:

(a)	Driving a motor vehicle whilst disqualified from holding a driver's licence, contrary to s31(1) of the Traffic Act;

(b)	Driving an unregistered motor vehicle on a public street contrary to s33(1) of the Traffic Act;

(c)	Driving a motor vehicle which did not have a current compensation contribution on a public street, contrary to s34(1) of the Traffic Act.

The appellant's record of prior convictions revealed that in 1991 he was convicted of 2 counts of driving whilst disqualified for which he received periods of 3 months and one month imprisonment concurrently and was disqualified from driving for 18 months and 12 months concurrently.

The appellant's counsel, Mr de Mars, submitted on behalf of his client that the appellant was 27 years old, literate, had a wife and very young daughter, and was in regular employment as a stockman at Neutral Junction.

On the occasion in question the appellant's father, Tommy Jungala, telephoned him from Wycliffe Well stating he was stranded there and asking the appellant to come and get him in his father's car.  Both the appellant's own wife and his brother's wife accompanied the appellant in the car.  Apparently neither of those people knew how to drive.  Accordingly, the appellant felt very much obliged to do as his father requested of him.  Evidence was also offered that the appellant was sober at the time.

In response to Mr de Mars' submission that a non‑custodial sentence was an appropriate punishment his Worship replied that he had to consider the interests of the community.  He acknowledged that the appellant had not been drinking, which would have aggravated the offence.  However, the appellant had known of the consequences or likely consequences of driving whilst disqualified.

The learned Magistrate thereafter directed the following remarks to the appellant before passing sentence (Tr.p5):

	"I take into account what has been put to me.  I don't accept what has been put to me.  You knew full well what would happen to you if you took a chance and drove.  You weren't disqualified for 12 months; you were disqualified for 18 months in January.  You had two periods of disqualification imposed on you, one of 12 months and one of 18 months.  You have driven before when you have been disqualified.  You really had no excuse whatsoever for driving.  You took a chance; you take the consequences."

The learned Magistrate then imposed the following sentences:

	Count 1:	For driving whilst disqualified, 6 months imprisonment and disqualification from driving for 18 months;

	Count 2:	For driving an unregistered motor vehicle, a fine of $200 plus $20 levy, in default 5 days imprisonment;

	Count 3:	For driving a motor vehicle without a current compensation contribution, a fine of $1,000 plus $20 levy, in default 21 days imprisonment.

The appellant appeals to this Court against the sentence of 6 months imprisonment imposed on Count 1 for driving whilst disqualified.

The grounds of appeal are as follows:

(a)	That the said sentence imposed by the learned Stipendiary Magistrate was in all the circumstances manifestly excessive.

(b)	That the learned Stipendiary Magistrate imposed a sentence of imprisonment which was not proportional to the objective circumstances of the offence.

(c)	That the learned Stipendiary Magistrate erred by placing undue emphasis on the appellant's prior convictions.

(d)	That the learned Stipendiary Magistrate erred by failing to take adequate account of factors personal to the appellant.

Some of these grounds of appeal overlapped and Mr de Mars made his submissions accordingly.  He submitted that a sentence of six months imprisonment was disproportionate in the light of the circumstances of this offence and indicated that the learned Magistrate had given undue weight to the appellant's prior convictions for the same offence.  He submitted that the majority of the appellant's previous convictions had resulted in fines and without considering the suitability of alternative punishment, the learned Stipendiary Magistrate immediately decided on a prison term; there was no indication from his Worship's reasons, which were extremely short, that he had taken into consideration the particular circumstances of the offence, and factors personal to the appellant which had been put to him before reaching his decision; in particular, the appellant was 27 years old with a wife and very young daughter aged 1 year, who both lived with him at Neutral Junction - he had worked regularly at Neutral Junction as a stockman, and was to recommence employment should he be given a non‑custodial sentence.  Furthermore, it was submitted that the appellant was a traditional aboriginal who felt a strong personal obligation to collect his father who was stranded at Wycliffe Well.  Neutral Junction was a small community where transport was limited, those who accompanied him could not drive, and he had not been drinking at the time, as is so frequently the case in this type of offence.

Counsel for the appellant's final submission was that a sentence of 6 months was manifestly excessive in the circumstances.  While he could not refer me to any statistical data to support this conclusion he submitted the sentence was clearly in the upper range usually reserved for worse cases.  This is despite the fact that the maximum penalty prescribed by Parliament is a term of 1 year.

The principles guiding the review of the exercise of judicial discretion as to sentence are well established:  see House v The King [1936] 55 CLR 499, 504‑5 per Dixon, Evatt & McTienan JJ; Cranssen v The King [1936] 55 CLR 509, 519‑20 per Dixon, Evatt & McTiernan JJ; Mason v Pryce (1988) 53 NTR 1; Seears v McNulty (1987) 89 FLR 154; Watton v Carrick (1980) 5 NTR 17.

In House v The King, supra, at 504‑5, their Honours Dixon, Evatt and McTienan JJ made the following comments:
	
	"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

His Worship's remarks in sentencing were very brief.  As stated by Muirhead J in Hill v Arnold (1976) 9 ALR 350 at 356, this court is appreciative of the difficulties and pressures under which Magistrates are working, but it is important that they give at least a succinct account of their main reasons for decisions, especially when sentencing a person to prison.

Nevertheless, remarks on sentence are not to be analysed as critically as the words in a considered reserved judgment:  see Jambajimba v Dredge (1985) 33 NTR 19, at 22 per Muirhead ACJ; and an appellate court is entitled, when considering the evidence and the reasons given, to assume that the Magistrate has considered all matters which are necessarily implicit in any conclusions which he had reached:  see Bartusevics v Fisher (1973) 8 SASR 601 per Bright J.

I now turn to consider the first ground of this appeal, that the sentence imposed by the learned Magistrate was manifestly excessive.  The legislature has prescribed the maximum penalty for this offence as 1 year.  Clearly the maximum term is reserved for the worst instances of the offence.  No statistical comparisons were brought to my attention, and there was no authority for the appellant's submission that 6 months was in the upper range of sentences.  Having regard to all the circumstances of the offending and the offender, I am not satisfied that the sentence was manifestly excessive. 

Neither am I persuaded that his Worship erred by imposing a sentence which was disproportional to the instant offence. As I have said in a previous decision, there is no principle that a conviction for a subsequent offence must of necessity result in a more severe sentence than had previously been imposed in the past.  Such an approach could result in a fresh penalty for past offences rather than a penalty reflecting the gravity of the offence: see Nabanardi v Minner (1992) 62 A Crim R 325 at 332.  However, there is no basis from his reasons to conclude that this is what the learned Magistrate did.

Counsel for the appellant conceded the prevalence of this offence in the community.  Apart from the appellant's two prior convictions and prison sentences for driving disqualified in 1991, only 3 months previously he had been convicted and fined for similar offences of driving whilst unlicenced, and had been disqualified from driving for a further 18 months.

Clearly, the appellant had shown a continuing attitude of disobedience to the law in his use of motor vehicles.  All previous attempts to deter him by fines and short prison terms had failed, and the learned Magistrate could have had no confidence that anything other than an actual term of imprisonment was necessary, as a personal deterrent.  In the words of His Worship at page 4 of the transcript:

	"He knows full well that if he drove and he got caught there were certain consequences that would flow from that."

At the same time it is clear from the transcript that general deterrence was a serious consideration in his Worship's sentencing, and with good reason given the frequency of this type of offence.  On the same page he states "I have got to think of the community, surely."

Furthermore, whilst his reasons are somewhat brief on the matter, I am not satisfied that his Worship placed undue weight on the appellant's prior convictions for the same offence.  In the light of what I have said previously they were clearly relevant to his Worship's decision as to what to do with an offender in the appellant's situation.

Neither could it be said that the learned Magistrate failed to take account of the factors personal to the appellant which were raised by his counsel.  Whilst his Worship should have said more than that he had taken into account what had been put to him but did not accept it, nevertheless his remarks impliedly show he took personal factors into consideration before reaching his decision.  For instance, his Worship acknowledged it was a good thing that the appellant was not intoxicated at the time of the incident.

He also stated (Tr.p5) "You really had no excuse whatsoever for driving.  You took a chance; you take the consequences."

I take this to mean that his Worship was not persuaded that the appellant's excuse that he did not feel he could refuse his father's request was a reasonable one.

I agree with the learned Magistrate.  No evidence was offered by the appellant as to the extent of his father's predicament.  All that was really said was that he needed a lift.  It is not known whether the appellant attempted to find another licenced driver for the vehicle.

Most people feel a moral compulsion to carry out the wishes of their parents.  The fact that the appellant is an aboriginal who lives on a small remote community is of small weight in this regard.  He is a 27 year old literate man with at least a basic level of education who was fully aware of the wrongfulness of, and consequences of, his actions.  Every member of this community must realize they have a duty to refuse requests of their elders which would cause them to break the law.

For the reasons I have given above I am unable to conclude that the learned Magistrate erred in the exercise of his sentencing discretion, or that the sentence of 6 months imposed by the learned Magistrate was manifestly excessive.  

Accordingly the appeal is dismissed.

	_____________________________