Newton v Millar and Newton v Hales [2003] NTSC 88

PARTIES:	GORDON WILLIAM NEWTON

	v

	RONALD JEFFREY MILLAR

	GORDON WILLIAM NEWTON

	v

	PETER WILLIAM HALES

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA64 of 2003 (20304240)
and JA 65 of 2003 (20218197)

DELIVERED:	14 August 2003

HEARING DATES:	13 August 2003

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:
	Appellant:	Ms J Franz
	Respondent:	Mr M Johnson

Solicitors:
	Appellant:	NTLAC
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	Mil03310
Number of pages:	9

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

Newton v Millar and Newton v Hales [2003] NTSC 88
Nos JA64 of 2003 and JA65 of 2003

No JA64 of 2003	BETWEEN:
(20304240)
	GORDON WILLIAM NEWTON
	Applicant

	AND:

	RONALD JEFFREY MILLAR
	Respondent

No JA65 of 2003	BETWEEN:
(20218197)
	GORDON WILLIAM NEWTON
	Applicant

	AND:

	PETER WILLIAM HALES
	Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 14 August 2003)

[1]	These appeals concern two matters which were heard together in the Court of Summary Jurisdiction.  In relation to file number 20218197, the appellant faced five charges on two separate complaints, as follows:
Count 1:  Driving in excess of .08, viz .288.
Count 2:  Driving under the influence.
Count 3:  Driving without due care.
Count 4:  Driving whilst disqualified in NSW.
Count 5:  Driving whilst unlicensed.
The appellant pleaded guilty to counts 1, 3 and 4, and counts 2 and 5 were dismissed.  All of these offences allegedly occurred on 3 December 2002.

[2]	When the facts were read out to the Court by the prosecutor, it was alleged that the appellant’s driver’s licence was disqualified in New South Wales on 30 November 1998.  The facts were admitted by the appellant’s counsel.  During the course of the plea hearing, the appellant’s prior record of convictions was tendered to the Court.  The appellant had a number of prior convictions for driving offences in New South Wales, but the record showed that his last conviction was on 29 August 1996 for driving under the influence, when he was disqualified for 1 year and 6 months, and fined a total of $1,250.  The fact that the record did not disclose a disqualification in 1998, or on any other date which was still current on 3 December 2002, was completely overlooked by the learned magistrate, as well as by counsel appearing in the count below.
[3]	It is now common ground that a mistake has been made by all concerned, and that the appellant did not drive whilst disqualified in New South Wales (or anywhere else) on 3 December 2002.  It is not necessary to go into the circumstances of how the mistake occurred.  Counsel for the respondent, Mr Johnson, concedes that, notwithstanding that the appellant pleaded guilty to count 4, the conviction cannot stand and must be set aside.  That concession was rightly made.  It is well established that an appellate court will set aside a conviction recorded after a plea of guilty in circumstances where the court is satisfied that a miscarriage of justice would or might occur if the accused is held to his plea, and, in particular, where the accused could not, in law, have been convicted of the offence to which he had pleaded guilty:  see Parsons (1997) 97 A Crim R 267 at 271-272; R v Kouroumalos [2000] NSWCCA 453 at para 16.  The conviction and finding of guilt in relation to count 4 must therefore be set aside and a verdict of not guilty entered.
[4]	The learned magistrate imposed, in relation to the three counts referred to above, an aggregate sentence of imprisonment of 7 months and 6 days, as well as a licence disqualification for a period of 2 years.  It is common ground that, in these circumstances, the appropriate course is for me to re-sentence the appellant in relation to counts 1 and 3.
[5]	In relation to file 20304240, the appellant faced two charges.  Count 1 was a charge of driving whilst disqualified and count 2 was a charge of giving a false name.  These offences are alleged to have occurred on 19 March 2003.  The disqualification alleged on this occasion arose from the fact that, when the appellant was arrested and charged in relation to the offences on 3 December 2002, the police served a notice of suspension upon him, pursuant to s 20A of the Traffic Act.  In relation to those offences, the learned magistrate refused to accept the plea to the charge relating to giving a false name and dismissed it.  In relation to the driving whilst disqualified offence, the learned magistrate imposed a sentence of imprisonment for 4 months, cumulative on the aggregate sentence of 7 months and 6 days imposed in relation to counts 1, 3 and 4 on file 20218197.  No part of the total sentence of 11 months and 6 days was suspended and, as the total sentences were less than 12 months, no non-parole period could be fixed.
[6]	It is conceded by counsel for the respondent that the sentence of 4 months is infected by the error made in relation to the conviction for the driving whilst disqualified in New South Wales offence.  That concession was properly made.  Obviously, the circumstance that a person drives whilst disqualified shortly after having committed the same offence would make it a more serious matter.  Although the learned magistrate does not specifically mention this, the length of the sentence he imposed, having regard to the gap in the appellant’s past offending of over 6 years, is most likely explicable on the basis that his Worship was mindful that the appellant had offended in the same way only a matter of months previously.  Otherwise, the appellant’s early plea of guilty (which occurred on the same day as the offending) and the gap in his prior offending would most probably have resulted in a more lenient sentence.
[7]	It remains for me to re-sentence the appellant.  The facts as alleged in relation to file number 20218197, omitting all reference to count 4, are as follows:
At 6.17 pm on Tuesday, 3 December, the defendant was driving a Ford Falcon sedan, NT registration 632 093, on Phoenix Street, Nightcliff.  On the same day, the defendant had consumed four stubbies of Victoria Bitter beer at his premises at 12/86 Woods Street.  The defendant then drove to Nightcliff to visit friends who lived in the area.  There was one male passenger in the vehicle at the time.  As he drove along Phoenix Street, Nightcliff, the vehicle veered to the left and collided with a vehicle, NT registration 558 021, being a Toyota Prado which was parked at the front of number 3 Phoenix Street.
The defendant was subjected to a roadside breath test which returned a positive indication of alcohol.  He was arrested and conveyed to Berrimah Police Station where he was subjected to a breath analysis which returned a positive reading of .288%.  When asked if he had any reason for driving under the influence, he stated, “It’s all right, I’ll sort it out in court.  My brother’s a Federal Police Officer.”
When asked why he had crashed into the rear of the Toyota, he replied, “I had to swerve to miss a kid on the road.”  A witness to the accident was spoken to by police and stated there was no vehicle, pedestrian or traffic present prior to the time of the accident.
The defendant was noted to be unsteady on his feet, he smelt strongly of liquor, was slurring his words and was difficult to understand.  At the time of the offences, Phoenix Street, Nightcliff, was a public street open to and used by the public, and it was clear, dry weather.
It was conceded by counsel for the accused that there was no child on the road which caused the appellant to swerve.
[8]	In relation to file number 20304240, the facts as alleged, omitting all reference to the false name charge, are as follows:
The defendant was driving a Nissan Urvan, NT registration 563 525, in a southerly direction on the Stuart Highway.  At that time he was approximately 2.5 kilometres north of Emerald Springs Roadhouse.  The defendant was observed to be holding a Victoria Bitter can as he passed police.  Inquiries later revealed the defendant was a disqualified driver, having had his licence suspended by police on 4 December at police headquarters.
[9]	The appellant has the following relevant prior convictions:
Date and Court	Penalty	
9/3/76 at Petty Sessions Ct Forbes Prescribed Concentration	Disqualified for 12 months and fined $150	
15/2/82 at Petty Sessions Ct Penrith 
PCA .150	Disqualified for 12 months and fined $600	
31/7/86 at Wollongong Ct 
Drive with Middle Range Concentration	Disqualified for 1(?) year and fined $500	
26/9/86 At Bathurst Local Ct 
Mid PCA	Disqualified for 3 years and fined $700	
22/1/92 at Penrith Local Ct 
Mid PCA	Disqualified for 18 months and fined $800	
29/8/96 at Ballina Ct
DUI of alcohol or drug	Disqualified for 1 year and fined $750	
Drive with Mid Range 	Disqualified for 6 months and fined $500	

10/5/89 at Penrith Local Ct
Drive Disqualified	Recog (?) self $1000 GB 3 years, also fined $600.  Disqualified for 6 months	
22/4/87 at Wagga Wagga Local Ct
Drive Disqualified	Disqualified 2 years and 3 months Hard Labour	
12/10/77 at Wollongong Ct
Drive Unlicensed	$100 and (?)	
31/7/86 at Wollongong Ct
Drive Unlicensed	$100	
12/10/77 at Wollongong Ct
Negligent Driving	Disqualified 1 year and $300(?) fine	

[10]	I note that it is not alleged that the appellant caused any damage to the parked Toyota Prado.
[11]	I note, also, that the appellant has a number of convictions for dishonesty offences in South Australia, Queensland and New South Wales, including sentences of imprisonment of 18 months in Queensland in August 2000 for burglary-type offences, and a suspended sentence in South Australia in March 2002 for unlawful possession.  Clearly, the appellant is not a person of good character.
[12]	The appellant is a 44 year-old invalid pensioner.  He suffers from blood clots and severe back pain, as a result of which he was placed on morphine-based pain-killers by his general practitioner.  When the pain-killers started to become addictive, his medication was substantially withdrawn.  On the occasion in December 1992, he drank to excess in order to relieve the pain.  He is married with two grown-up daughters who are unemployed and living at home.  His only income is his pension of $610 per fortnight.  Since being in prison, he has not been able to obtain morphine as the use of opiates is against prison policy.  He has been prescribed Panadene Forte and has had a brace provided, but is still in significant pain.  He has been offered methadone, but has rejected it as he believes that methadone is used by those trying to give up a morphine or heroin addiction.  Methadone is used as a long-lasting analgesic for moderately severe to severe pain, but even short-term use at low doses can have unpleasant side-effects:  see Drugs & Drug Abuse, Edited by Brands, Sproule & Marshman, 3rd Edn, pp 361-369.  I do not consider that it is necessarily unreasonable for the appellant to have refused methadone.  In any event, it is clear that the appellant will find imprisonment harder to endure than other prisoners and some allowance should be made for these factors.
[13]	An appropriate discount must be allowed for the appellant’s pleas of guilty.  The learned magistrate reduced the sentences in relation to file 20218197 by 20%, and in relation to file 20304240 by 25% to take those pleas into account.  I agree with that approach.
[14]	Counsel for the appellant conceded that sentences of imprisonment were inevitable, but submitted that they should be partly concurrent and that the sentences should be at least partly suspended, having regard to his pleas of guilty and the gap in his past offending.  Counsel for the respondent conceded that it would not be inappropriate to at least partly suspend whatever sentences are imposed.
[15]	Accordingly, the appeals are allowed, and the sentences set aside.  In relation to file 20218197 as to count 1, the appellant is convicted and sentenced to imprisonment for 4 months and 2 weeks.  In relation to count 3, the appellant is convicted and sentenced to imprisonment for 1 month, to be served concurrently with count 1.  The order of the learned magistrate disqualifying the appellant from holding or obtaining a driver’s licence for a period of two years remains in force.
In relation to file 20304240, the appellant is convicted of count 1 and sentenced to imprisonment for 4 months to be served cumulatively upon the sentences imposed in relation to file 20218197.  I record that I have considered the totality principle when imposing these sentences.  The appellant has now been in custody since 19 March 2003.  I think he has served long enough.  The licence disqualification commenced on 21 March 2003.  The above sentences, which will have commenced from 19 March 2003, will be suspended forthwith and the appellant released.  I fix a period of 12 months, commencing from today, as the period during which he is not to commit another offence if he is to avoid the consequences of s 43 of the Sentencing Act.
In relation to file 20218197, the conviction in relation to count 4 is quashed.

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