PARTIES:	LLOYD JOSHUA
v
ALAN WILLIAM PETER THOMSON

LLOYD JOSHUA
v
GOTTLIEB THOMAS SVIKART

LLOYD JOSHUA
v
ALAN WILLIAM PETER THOMSON

TITLE OF COURT:	SUPREME COURT (NT)

JURISDICTION:	APPEALS FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NOS:	No. JA 12, 13 AND 14 OF 1994

DELIVERED:	Darwin 27 May 1994

HEARING DATES:	24 May 1994

JUDGMENT OF:	Kearney J

CATCHWORDS:

Criminal law - criminal damage - whether proof of aggravating factors in Code s251 goes to greater punishment for the offence in s251(1) or affects the identity of that offence

Criminal Code (NT) ss251, 188, and 305(4)

Kingswell v The Queen (1985) 159 CLR 264, applied
R v Meaton (1986) 160 CLR 359, referred to
O'Brien v Fraser (1989-90) 66 NTR 9, followed

Criminal law - general sentencing principles - remote Aboriginal community - relevance to sentencing of the community's views - evidence of the community's views - need for counsel to have opportunity to deal with suggested community views

Munungurr v The Queen (unreported, Court of Criminal Appeal, 11 February 1994), applied

R v Davey [1980] 50 FLR 57, referred to
Veen v The Queen (1979)143 CLR 458, applied
Houghagen v Charra (1989) 50 SASR 419, referred to Jadurin v The Queen (1982) 7 A Crim R 182, referred to Mamarika v The Queen (1982) 63 FLR 202, referred to

REPRESENTATION:

Counsel:

Appellant:	W. J. Stubbs

Respondents:	C. B. Cato

Solicitors:

Appellant:	Northern Australian Aboriginal Legal Aid Service

Respondents:	Department of Public Prosecutions

JUDGMENT CATEGORY:	CAT A

JUDGMENT ID NUMBER:	kea94018.DIS
NUMBER OF PAGES:	16

2

kea94018.DIS

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

Nos. JA 12, 13 and 14 of 1994

IN THE MATTER of the Justices Act

AND IN THE MATTER of appeals from certain sentences imposed by the Court of Summary Jurisdiction at Darwin

JA 12 of 1994	BETWEEN: LLOYD JOSHUA
Appellant
AND:
ALAN WILLIAM PETER THOMSON
Respondent

JA 13 of 1994	BETWEEN: LLOYD JOSHUA
Appellant
AND:
GOTTLIEB THOMAS SVIKART
Respondent

JA 14 of 1994	BETWEEN: LLOYD JOSHUA
Appellant

CORAM:	KEARNEY J

AND:
ALAN WILLIAM PETER THOMSON
Respondent

REASONS FOR DECISION

(Delivered 27 May 1994)

The three appeals

On 24 May the following 3 appeals were argued together:-
No. 14 of 1994.	By Notice of Appeal dated

14 March 1994 the appellant appealed against a sentence of one month's imprisonment imposed on him by the Court of Summary Jurisdiction at Darwin on 18 February 1994, after he pleaded guilty to an offence of unlawfully damaging school property (45 glass louvres) on 22 November 1993, and a circumstance of aggravation in that the loss occasioned by the damage exceeded
$500, namely $800.	The offence was charged in an Information dated 12 December 1993 as an offence under s251(1) of the Criminal Code, the loss occasioned thereby being charged as a circumstance of aggravation pursuant to ss251(2)(c) and 305(4).	Pursuant to s251(2)(c) what was charged was a crime and carries a maximum punishment of 7 years imprisonment.
No. 12 of 1994.	By Notice of Appeal dated

14 March 1994 the appellant appealed against a sentence of

1 month's imprisonment imposed on him by the Court of Summary Jurisdiction at Darwin on 18 February 1994 after he pleaded guilty to an offence under s251(1) of the Code of (again) unlawfully damaging school property (45 glass louvres, again) valued at $250, on 18 December 1993.	This offence, charged in a Complaint dated 1 February 1994, carries a maximum punishment of 2 years imprisonment; the sentence was directed to be served cumulatively upon the sentence imposed in (1) above.

No. 13 of 1994.	By Notice of Appeal dated

14 March 1994 the appellant appealed against two sentences, each of 3 months imprisonment, imposed on him by the Court of Summary Jurisdiction at Darwin on 18 February 1994 after he had pleaded guilty to the following offences under s218(1) of the Criminal Code:-
Unlawfully using a motor vehicle, a Toyota Troopcarrier, between 23 January 1994 and
24 January 1994; and

unlawfully using a motor vehicle, a Toyota Troopcarrier, on 28 January 1994.
These offences each carried a maximum punishment of 2 years imprisonment.	The sentence for offence (b) was directed to be served cumulatively upon the sentence for offence (a), which was in turn directed to be served cumulatively upon the sentence in (2) above.
In the result, the total effective sentence for the

4 offences was 8 months imprisonment.

[His Honour referred to some sentencing statistics placed before the Court, and continued:]
Although the present appeals flow from cases dealt with by the Court of Summary Jurisdiction at Darwin, the sentencing Magistrate normally constitutes the Court of Summary Jurisdiction at Alyangula where, as is well known, a special sentencing regime has been in place for several years in a largely successful endeavour to reduce the former excessively high rate of offending and imprisonment on Groote Eylandt.
See B. McCormack: 'The Criminal Justice System on Groote

Eylandt in 1993' (June 1993).	His Worship has a clear advantage over the members of this Court, in terms of his wide experience in the region, and his knowledge of the local conditions, ways of life, habits, customs and characteristics of the people of Numbulwar, the appellant's community.
[His Honour referred to the grounds of appeal, and continued:]
Ground No.1

This ground applies only to appeal No. 14 of 1994.

The appellant contends that his Worship was in effect informed that he did not admit the circumstance of aggravation charged
- that the loss exceeded $500; that his Worship failed to determine whether that circumstance existed; and that this failure rendered uncertain the maximum punishment which the appellant faced (2 years under Code s251(1), or 7 years under s251(2)(c)), the amount of any proposed compensation (since the loss was not particularized), and the factual basis upon which he was sentenced.
[His Honour referred to what was said during the plea, and continued:]
It is clear that Ms Burrows here was drawing attention to the inconsistency in valuing the 45 louvres in the offence of
22 November at $800, while the value of the same number in the offence of 8 December was put at $250.	[His Honour referred to a further exchange, and continued:]
I consider it is clear that Ms Burrows was suggesting that the plea of guilty to the charge of the circumstance of aggravation should be withdrawn, because the alleged loss of

$800 was not admitted.	I consider from his remarks that it is highly likely that his Worship, after hearing the facts, would have treated the earlier plea as a plea of guilty to damaging the louvres, but not as a plea of guilty to the circumstance of aggravation charged.		The statement of facts on which the prosecution relied made no reference to the value of the louvres smashed; there was no evidence of their value.
However, that is not to the point; the appellant was entitled in the circumstances to have recorded that he pleaded not guilty to the circumstance of aggravation charged, and to have his case dealt with on that basis.	In due course the appellant was sentenced to 1 month's imprisonment for this offence.
[His Honour then dealt with a submission that the Indictment had wrongly charged criminal damage with a circumstance of aggravation, viz:-]
Mr Stubbs submitted that to charge on this basis involved a misinterpretation of s251; in truth, it created 13 separate offences, one of which was constituted by s251(2)(c), and the Information should have charged it as such.	He submitted that accordingly the proceedings on the Indictment were a nullity.
Code s251(1) provides, as far as relevant:-

"(1)	Any person who unlawfully damages any property is guilty of an offence and is liable to imprisonment for 2 years.

(2)	If -

(a)	- - -

(b)	- - -

the loss caused or intended to be caused by such damage is greater than $500; or

(d)	- - -

the offender is guilty of a crime and is liable to imprisonment for 7 years."
Section 251(3) also sets out 4 circumstances, and provides that in those circumstances "the offender is guilty of a crime and is liable to imprisonment for 14 years."	Similarly, s251(4) sets out 4 circumstances, and provides that in those circumstances "the offender is guilty of a crime and is liable to imprisonment for life."
On the face of it, s251 does not create a single offence constituted by s251(1) together with 12 different circumstances of aggravation of that single offence; rather, as Mr Stubbs submitted, it appears to create 13 separate offences of which 12 are crimes while the s251(1) offence is a simple offence; see Code s3(4).	I note that a "crime" is one species of "offence"; see s3(1).		If that is the correct construction of s251, the Information of 12 December 1993 was defective in that it did not charge the crime constituted by s251(2)(c).	Further, since on that basis the amount of the loss was an element of the offence charged (and not a circumstance of aggravation), and was eventually not admitted, a plea of "not guilty" to the crime would have been the only plea which could properly ultimately have been recorded, and the hearing should have proceeded on that basis.	Supporting this construction is the reference to "offence" in s251(1), where it is clearly a "simple offence", and to "crime" in s251(2), (3) and (4); it would seem from this differing

nomenclature that the nature of the offences in those subsections may be different from that in s251(1).	There is a distinction between a statutory provision in which proof of aggravating factors make an accused liable to greater punishment for the same offence, (as is clearly the case, for example, in s154) and one in which those factors affect the identity of the offence, by converting a lesser offence into a greater; see the view of the majority in Kingswell v The Queen (1985) 159 CLR 264.	The distinction can have practical consequences; see The Queen v Meaton (1986) 160 CLR 359 at
366-8, per Brennan and Deane JJ.	Clearly, Mr Stubbs' submission as to the proper construction of s251 is very arguable.
However, the better view, I think, is

that there is but one "offence" created by s251, and 12 different circumstances of aggravation, and the Information was correctly framed.	The same question arose in relation to the very similarly worded s188, in O'Brien v Fraser (1989-90)
66 NTR 9, which was not cited to the Court.	Asche CJ discussed the principles and authorities at pp12-17 and held that s188(2) does not create separate offences, but circumstances of aggravation of the offence created by s188(1).	It is sufficient to say that I respectfully agree with his Honour, and apply his reasoning and conclusion to s251.	The requirement in s305(4) (that any circumstance of aggravation intended to be relied upon must be charged in the Indictment) satisfies the basic principle of the criminal law

that all necessary factual ingredients on which the prosecution relies must be charged and proved.
It is also a basic principle of criminal law that there be an informed and unequivocal plea of guilty to a charge of an offence, and to any charge of a circumstance of aggravation, before the plea can found a lawful conviction and sentence for that aggravated offence.	It is clear from what took place in Court on 18 February that there was ultimately no informed and unequivocal acknowledgment by the appellant of the truth of the circumstance of aggravation charged.	The strong likelihood is, as Mr Cato of counsel for the respondent submitted, that the learned Magistrate later ignored the circumstance of aggravation charged, and treated the plea as a plea to criminal damage simpliciter under s251(1) and sentenced on that basis.	However, the possibility that he did not do so, but bore in mind the circumstance of aggravation charged and the higher maximum punishment which it carried, cannot be entirely excluded.	In any event, as far the circumstance of aggravation was concerned, the plea should have been altered to one of "not guilty", in light of what
Ms Burrows and the prosecutor said.	Since a basic principle is involved, the appellant cannot be put at any risk, in that respect.
[His Honour referred to a further submission by the appellant and continued:-]
Mr Stubbs sought leave to amend the Notice of Appeal so as to appeal against the conviction for this offence;
Mr Cato did not object, and leave was granted.	I consider

that in view of what was said in the Court on 18 February the appeal against the conviction for the aggravated offence of
22 November 1993 must succeed, despite the plea of guilty; the conviction must be quashed and the sentence set aside.	In the light of the outcome of the other appeals, the charge should be remitted for rehearing before the Court of Summary Jurisdiction.
[His Honour discussed and rejected a ground of appeal that his Worship had failed to take into account an offer to pay compensation, as a mitigating factor, and continued:-]
Ground 3

This ground applies to all 3 appeals.	The appellant contends that his Worship placed "too much emphasis on apparent community attitudes [in Numbulwar] without a proper evidential basis [for these attitudes]."
Mr Stubbs conceded that the Magistrate was very experienced in the region and clearly had a great deal of local knowledge concerning the Numbulwar community and the appellant.	This is very significant, as I mentioned at pp3-4. He submitted that the appellant's father was a leader in the community, the appellant might be groomed to follow him, and might have been given a heavier sentence than was appropriate because of that factor.	There is no evidential basis for that submission, which is mere speculation.	I indicated during the hearing of the appeal that if a sentencer is contemplating taking into account certain matters knowledge of which he has acquired outside the particular proceedings, adverse to the

prisoner, he should apprise the prisoner's counsel of it and afford counsel an opportunity of dealing with those matters before proceeding to sentence.	Fairness dictates no less.
Mr Stubbs accepted that some members of the Numbulwar community had arranged to fly the appellant and some others to Groote Eylandt to be interviewed there by the Police; and they wanted him to be dealt with by the Court in Darwin.	He submitted that his Worship had wrongly elevated those facts into a belief that the Numbulwar community wanted the appellant to be given a lengthy prison sentence; alternatively, his Worship had drawn on other information in his possession which had not been ventilated in Court, to that effect.	He conceded that it could fairly be implied from the community's desire that the case be heard in Darwin, that it considered that some sort of custodial disposition was appropriate.	A somewhat contradictory submission was that the community should not have been treated as saying that the accused could not stay in Numbulwar; they merely wanted him dealt with in Darwin, and his Worship had wrongly concluded that the community wanted the appellant to be imprisoned, and had relied on this as the major factor when sentencing him, together with his prior record.
I think it is fair to construe his Worship's remarks on sentencing as evincing a belief on his part that the Numbulwar community considered that the appellant should receive a sentence of imprisonment, when dealt with in Darwin, so that he would not be back in the community "for some time". His Worship had not afforded Ms Burrows an opportunity to

address the question whether that was in truth the view of the Numbulwar community, a view which he enunciated in the course of sentencing and to which he proceeded to give effect.
Mr Stubbs referred to Munungurr v The Queen (unreported, Court of Criminal Appeal, 11 February 1994), on the proper way in which community views on the disposition of offenders should be placed before the Court.	He submitted that these cautionary observations were not observed in this case.	That is correct, but here the Magistrate appeared to be acting on his local knowledge, and what was required was that this be revealed to counsel and submissions solicited (and if necessary, relevant materials) before the appellant was sentenced.
Mr Stubbs submitted that his Worship had imposed a lengthier sentence than would ordinarily have been imposed, because of his perception that that was what the Numbulwar community desired.
I think his Worship's sentencing remarks may fairly be construed as indicating that he gave "paramount weight" to what he perceived to be the Numbulwar community's view that the appellant be kept out of that community "for some time".  I think that this can fairly be seen to have been a dominant factor in his sentencing and in the length of the effective sentence imposed.	In my opinion, with respect, too much weight was given to this factor when sentencing.	It is understandable that this should have occurred, as the Court of Criminal Appeal had published reasons for decision in Munungurr v The Queen (supra) just one week before; there the

Court had stressed the importance of the views of remote Aboriginal communities when sentencing a member of that community for an offence committed within it.	In that respect, what is important, as Muirhead J pointed out in R v Davey [1980] 50 FLR 57 at 60, is:-
"- - - the attitude of the Aboriginal communities involved not only on questions of payback and community attitudes to the crime - - -".

In Munungurr (supra) the Court stressed at p12 that the senior officers of representative Aboriginal bodies in these communities are "often - - - persons of some importance in these communities according to traditional law, and can be expected to know the wishes of their communities."	In general, the Court stressed (p13) the need for "evidence from those fully conversant with the language and customs [and we add, views] of the community concerned."	In that case, it contemplated "detailed statements in the term of affidavits or statutory declarations", or viva voce evidence.	The Court said at p14:-
"The importance of having evidence put before the court in a proper manner cannot be over-emphasised.
The court must be satisfied that the information which is presented to it is reliable.	It would be very easy for the court to be misled by information reflecting only the views of the defendant's relatives and supporters."

At p19, when re-sentencing, the Court took into account "the community's wishes" as a relevant factor, "and the effect of imprisonment upon the community."	In the circumstances of that case, these factors were factors in mitigation of sentence; in the present case, they operate in the reverse way.

No doubt the Court in Munungurr (supra) stressed the significance of "the community's wishes" as a relevant sentencing factor, in light of the Report of the Royal Commission into Aboriginal Deaths in Custody, particularly Recommendation 104 which has since been supported by the executive governments in Australia.	Recommendation 104 provides:-
"104.	That in the case of discrete or remote communities sentencing authorities consult with Aboriginal communities and organisations as to the general range of sentences which the community considers appropriate for offences committed within the communities by members of those communities and, further, that subject to preserving the civil and legal rights of offenders and victims such consultation should in appropriate circumstances relate to sentences in individual cases."

The qualification there expressed "subject to preserving the civil and legal rights of offenders and victims" is very important.	See also pars22.4.18-22.4.20 of Volume 3 of the Report.	As the Report noted in par22.4.20, there may not in fact be a single community view, but differences of opinion within the community.	Munungurr (supra) rightly stressed the need for accuracy in obtaining the views of the local community.
In general, it is fundamental that the Court should not pay any attention to public pressure when considering what sentence to impose.	To do so is an abdication of the judicial function and gives rise to the possibility of injustice; the basis of sentencing should be the facts and circumstances of the offence and offender, as disclosed in Court.	It is fundamental to sentencing that a prisoner be given a sentence

appropriate to his offence, and no more; see Veen v The Queen (1979)143 CLR 458.	The Court must preserve its independence from public clamour on sentencing, not because of an insensitivity to public opinion but because of the possibility of injustice if it pays attention to anything other than the record of the particular case.	The magistracy and judiciary are required to administer and apply the law "without fear or favour, affection or illwill" and without being influenced by public outcry.	Further, it is a cornerstone of our system of administering criminal justice that all persons are equal before and under the law; it follows that they have the right to the equal protection and benefit of the law, irrespective of their race, religion, colour, status, or anything else.	It is for the Court alone to evaluate the seriousness of the offence and whether imprisonment is required, and to do so on evidence relevant to the offence and the offender, and not by reference to the views of others.
At the same time, the traditional orientation of the lives of Aboriginal people living in remote settlements like Numbulwar is a background fact of fundamental importance.	In those communities, the continued unity and coherence of the group of which the particular accused is a member is essential, and must be recognized in the administration of criminal justice by a process of sentencing which takes due account of it, and the impact of a member's criminal behaviour upon it.	The difficulties for the sentencer are manifest.		As the learned Magistrate rightly pointed out in his paper (op. cit) at p19:-

"It is important that the concept of community in the Criminal Justice System is understood to mean firstly the entire Northern Territory community, secondly the Aboriginal section of the entire Northern Territory community, and thirdly a small community in which the court sits.	The system of community justice can only be meaningful to the extent that it complies with the moral and social expectations of the local community.		The system in effect should "belong" to the community in which it operates.

It surely follows that justice in the community therefore can only be effectively delivered by a system which incorporates a thorough knowledge of the community, its history, clans and moieties, encourages community participation and involvement when and if necessary, and continuously monitors the effectiveness or otherwise of court dispositions.
These basic requirements properly reflect "the fundamental truth that the administration of the criminal law if for any jurisdiction an intensely local experience."
This approach has also been recognized in the law.	See, for example, Houghagen v Charra (1989) 50 SASR 419; Jadurin v The Queen (1982) 7 A Crim R 182 at 186; and Mamarika v The Queen (1982) 63 FLR 202 at 206-8, where it was accepted that the wishes of the Umbakumba community should be taken into account when determining the appropriate disposition.
No doubt, from his lengthy experience and local knowledge, his Worship had formed an appreciation of the Numbulwar community's views in this case; fairness dictated that he inform counsel of his views, before relying on them as a major factor in sentencing, and afford counsel an opportunity to deal with them.	As that was not done, a breach of the rules of natural justice occurred; I would allow the appeals against the sentences imposed for that reason.
[His Honour discussed and rejected the grounds of appeal that the totality principle had not been

observed, and that the sentences in totality were manifestly excessive, and continued:-] Conclusions
For the reasons stated at pp4-9 I allow the appeal against the conviction for the offence of 22 November 1993, set aside the sentence of 1 month's imprisonment, and remit the charge for that offence to the Court of Summary Jurisdiction for re-hearing.
I allow the appeals against the sentences imposed on the other 3 charges, and quash those sentences, because of the breach of the rules of natural justice in the sentencing process; see pp9-10 and 15.
The question arises as to the appropriate disposition to be made, in light of the powers of this Court in s177(2) of the Justices Act.	I consider that all 4 charges should be remitted to the Court of Summary Jurisdiction at Darwin in order that the charge for the offence of 22 November 1993 may be reheard, and the appellant re-sentenced for the other 3 offences.	It is clear that these charges should be dealt with promptly.	I will hear counsel on the question of bail pending the re-hearing.
Orders accordingly.