Fernando v Groves and Fernando v Kassman
[2015] NTSC 81

PARTIES:	FERNANDO Kevin Nicholas

	v

	GROVES Joshua Ryan

FILE NO:	JA 36 of 2015 (21531460)

	FERNANDO Kevin Nicholas

	v

	KASSMAN Sean

FILE NO:	JA 37 of 2015 (21523765)

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION 

DELIVERED:	8 December 2015

HEARING DATES:	6 November 2015

JUDGMENT OF:	HILEY J

APPEAL FROM:	NEILL SM

CATCHWORDS:

APPEAL – Justices Appeal – appeal against sentence – breach of Alcohol Protection Order – offending at low level of seriousness – sentence disproportionate to offending – undue weight given to defendant’s prior offending – sentence manifestly excessive 

APPEAL – Justices Appeal – appeal against sentence – breach of bail – no demonstrated error – sentence not manifestly excessive 

Alcohol Protection Orders Act 2013 (NT), s23(1)
Bail Act 1982 (NT), s37B

Wayne v Cornford [2013] NTSC 01, applied. 

Hampton v The Queen [2008] NTCCA 5; R v Morse (1979) 23 SASR 98; R v Tait (1979) 46 FLR 386; Salmon and Chute (1994) 4 NTLR 1; Shannon v Cassidy [2012] 31 NTLR 188;  Veen v R [No 2] (1988) 164 CLR 465; referred to. 

REPRESENTATION:

Counsel:
	Appellant:	Mr O’Brien-Hartcher
	Respondent:	Mr Wallace-Parnell

Solicitors:
	Appellant:	North Australian Aboriginal Justice Agency
	Respondent:	Office of Director of Public Prosecutions

Judgment category classification:	B
Judgment ID Number:	Hil1512
Number of pages:	14 

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

Fernando v Groves and Fernando v Kassman
[2015] NTSC 81
No. JA 36 of 2015 (21531460) and JA 37 of 2015 (21523765)

	BETWEEN:

	KEVIN NICHOLAS FERNANDO
	Appellant

	AND:

	JOSHUA RYAN GROVES
	First Respondent

	AND BETWEEN:

	KEVIN NICHOLAS FERNANDO
	Appellant

	AND:

	SEAN KASSMAN
	Second Respondent

CORAM:	HILEY J

REASONS FOR JUDGMENT

(Delivered 8 December 2015)

Introduction
[1]	The appellant has appealed against two sentences imposed by the Court of Summary Jurisdiction on 26 June 2015.
[2]	The appellant was convicted of two offences:
(a)	breach an Alcohol Protection Order (APO) on 25 May 2015, and
(b)	breach of bail by not attending court on 18 June 2015.
[3]	He was arrested for his breach of bail on 26 June and taken before the court later that day when he pleaded guilty and was convicted and sentenced to seven days imprisonment for each offence, to be served cumulatively. He served another four days in custody before he was released on appeal bail.
Grounds of Appeal
[4]	The amended notice of appeal contains the following grounds:
Ground 1: that the learned magistrate erred in ordering that the two sentences imposed be served cumulatively;
Ground 2: that the learned magistrate gave undue weight to the defendant’s record and prior offending;
Ground 3: that the sentence was manifestly excessive.
General principles concerning appeals against sentence
[5]	The principles that apply to an appeal against sentence are well known and were conveniently summarised by the Full Court of the Federal Court in R v Tait (1979) 46 FLR 386 at 388. The Court said:
An appellant court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.
[6]	As a general rule there is a presumption that there is no error in a trial judge’s exercise of his or her sentencing discretion. In order to interfere with the sentencing magistrate’s exercise of discretion, the court must be satisfied not just that the sentence was excessive but that it was manifestly excessive. To determine whether a sentence is excessive, it is necessary to review it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender.
Background
[7]	The appellant was issued with an APO on 8 January 2015 for 12 months. 
[8]	On 17 April 2015 he was convicted of 10 offences and sentenced to a total of one month imprisonment backdated to 5 April 2015. All of those offences were committed between 8 January and 16 April 2015. Six of the offences concerned breaches of an APO, presumably the APO issued on 8 January. Three of the offences concerned disorderly behaviour in a public place, offences committed at the same time as three of his breach of APO offences. The other conviction was for breaching a condition of bail on 17 February. I assume that he was released from prison on 4 May 2015.
[9]	At 1.15pm on 25 May the appellant was observed seated at the barbecue area at East Point Reserve consuming a red coloured liquid. Two police officers approached the appellant and noticed that he smelt of intoxicating liquor. After they became aware that he was subject of an APO they arrested him and took him to the Darwin watch-house. He submitted to a breath analysis which showed a blood alcohol reading of 0.040% at 2.11 pm. When asked his reason for drinking the appellant said: “I just drank it because sorry business with my family.” 
[10]	The appellant was given bail later that day and required to appear at the Darwin Court of Summary Jurisdiction on 18 June. Conditions of his bail included prohibitions on him purchasing possessing or consuming alcohol and requirements for him to submit to breath testing and urine analysis if so requested by a police officer. He failed to attend court on 18 June and a warrant was issued for his arrest. At 11:15 am on 26 June he was located sitting in a park at Parap, and he was taken to the Darwin watch-house. When asked why he had breached his bail he said: “I was very sick on that day”.
[11]	Counsel for the appellant told his Honour that the appellant was drinking with family members on 25 May and the reason for that was sorry business that was happening that day. While acknowledging the appellant’s numerous convictions on 17 April counsel pointed out that the present offending involved a low alcohol reading and was not accompanied by any aggravating circumstances, for example disorderly behaviour. He pointed out that the appellant had not had any further contact with police apart from his breach of bail, and appeared to have addressed his behaviour since then. He said the appellant now recognises that he needs to stay away from people who are bad influences on him. 
[12]	In relation to the breach of bail counsel said that the appellant was sick with coughing and a headache and he stayed in bed that day. He conceded that there was no evidence to corroborate those instructions and that the appellant did not do anything to contact NAAJA or someone else about his inability to attend court that day. 
[13]	Counsel submitted that the offending before his Honour was of a somewhat lower level than the appellant’s previous offending, and said that the appellant told him that he wants to attend CAAPS and that he wants to do something about his drinking. He pointed out that the appellant had been in custody since he was arrested earlier that day and requested his Honour to deal with these matters by way of time served.
[14]	His Honour stated that he did not agree with this request and invited counsel to make further submissions on that point. Counsel referred to the need for proportionate sentences. His Honour referred to the well-known principles expressed by the majority in Veen [No 2] including the ability of a sentencer to take prior criminal history into account to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. 
[15]	Those principles appear at [14]:
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
[16]	His Honour said that this would be his eighth breach of an APO since October 2014 and his fourth breach of bail. (Exhibit P3, the Information for Courts, only indicates one previous breach of bail, namely that for which the appellant was convicted on 17 April 2015.)
[17]	Counsel responded by pointing out that the appellant’s previous breaches of APOs were more serious as they appear to have been accompanied by aggravating behaviour. Although the present offending showed a resumption of drinking by the appellant it was at a relatively low level.
[18]	The prosecutor was given the opportunity to make submissions but declined. Needless to say there was no challenge to or concern expressed about the reasons given for the appellant consuming alcohol on 25 May or failing to answer his bail on 18 June. There was no reason for counsel to consider it necessary to call evidence from or on behalf of the appellant.
[19]	In his sentencing remarks His Honour said:
Today, Kevin Fernando has pleaded guilty to an 8th time to a count of breaching a s 6 alcohol protection order. The maximum penalty for such an offence is three months prison. 
The alcohol protection regime is a difficult one philosophically. On the one hand it can be seen as criminalising alcoholism and providing unnecessary extra pain and difficulty in the lives of disempowered people. On the other hand, and here I see Kevin Fernando as fitting into this second category, it is a means of protecting the community from drunken public nuisances.
And I see that Mr Fernando earlier this year has on no fewer than three occasions been convicted of disorderly behaviour in a public place associated with his public drunkenness. I also see that last year he had a number of convictions for stealing with very minor penalties, which suggests to me that the type of stealing we are looking at was probably shop stealing and matters of that sort. Which is all part and parcel of the public drunkenness behaviour.
When looked at in terms of the adverse effects on the community of public drunkenness leading to disorderly behaviour, stealing behaviour, matters of that sort, then the circumstances of breaching s 6 alcohol protection order appear to be more serious.
[20]	His Honour then noted the early pleas and the indication that the appellant would be “willing to consider a CAAPS period”, presumably to assist him better deal with his obvious problems with alcohol. 
[21]	His Honour then convicted the appellant in relation to the breach of the APO and sentenced him to seven days imprisonment from 26 June. 
[22]	In relation to the breach of bail, his Honour stated that there would be no forfeiture of bail and said:
I note the previous breach and the explanation provided, which I do not accept without further evidence. The need for people to answer their bail is fundamental to the entire administration of the system of justice. The defendant is convicted and sentenced to seven days prison, cumulative upon the sentence of file 21523765.
Breach of the APO 
[23]	Counsel for the appellant submitted that the objective seriousness of the offending on 25 May 2015 was at a very low level. Although the appellant was drinking, his blood alcohol content was low and he was not engaging in any antisocial behaviour. He was seated at East Point Reserve doing nothing but minding his own business. I agree that the objective seriousness of the offending was at a very low level.
[24]	Counsel submitted that his Honour’s emphasis in most of his sentencing remarks about this offending was upon disorderly behaviour and public nuisance sometimes associated with drinking alcohol, and upon the previous occasions when the appellant’s drinking was accompanied by such antisocial behaviour. His Honour’s concluding remarks, in the fourth of the paragraphs quoted above, suggest that the present offending fell into the “more serious” category because of the “adverse effects on the community of public drunkenness leading to disorderly behaviour, stealing behaviour and matters of that sort”.
[25]	Counsel for the respondent contended that his Honour was not referring to the appellant’s offending in that paragraph. Rather he was making a general statement about what sometimes happens when a person breaches an APO. 
[26]	Contrary to that submission I consider that his Honour was applying those sentiments to the appellant’s behaviour, and placed too much emphasis upon the appellant’s previous conduct, losing sight of the fact that his offending in the present matter was at a very low level of seriousness. In particular it was less serious than the previous offending for which he was sentenced on 17 April. 
[27]	Further, I do not think it can be said that by reoffending on this particular occasion the accused was demonstrating “a continuing attitude of disobedience of the law”, “his dangerous propensity” or “a need to impose condign punishment”. Clearly the appellant had a continuing drinking problem and on this particular occasion lapsed on account of the sorry business that day. The exceptions in Veen [No 2] to which his Honour referred did not apply to the current offending. 
[28]	The sentence of seven days imprisonment was not proportionate to the offending. Indeed I do not consider that the offending warranted imprisonment at all, particularly in light of the absence of any aggravating features and the appellant’s apparent insight into the fact that he needed some assistance for his drinking issues.
[29]	Accordingly grounds 2 and 3 on the notice of appeal are made out in relation to the penalty imposed for breaching the APO. He will be resentenced. Ground 1 need not be considered further.
Breach of bail
[30]	As counsel for the appellant pointed out there is no suggestion that the appellant’s breach of bail was accompanied by any other aggravating circumstances, relevantly, consumption of alcohol in further breach of the APO or a breach of any particular condition of his bail. 
[31]	However the failure of a person to answer his or her bail is serious, often more serious than a failure to obey a particular condition. As his Honour said: “The need for people to answer their bail is fundamental to the entire administration of the system of justice.”
[32]	In Wayne v Cornford, an appeal concerning a person’s failure to attend court when required, Kelly J distinguished an earlier decision of Shannon v Cassidy which concerned a person breaching a condition of his bail prohibiting him from consuming alcohol. Her Honour considered Mr Wayne’s breach more serious than the latter situation. At [11] her Honour said:
The whole purpose of bail is to ensure the attendance of the bailed individual before the court at the nominated time. If anything goes “to the heart of the whole bail process” it is non-appearance in answer to that bail.
[33]	Kelly J analysed a table of sentences handed down for breach of bail in a number of jurisdictions and concluded, at [12]:
… in other jurisdictions breach of bail by failure to appear generally attracts a far higher sentence than breach of a condition of bail such as a condition to refrain from drinking alcohol.
[34]	Her Honour observed that the most common sentences for failure to answer bail were in the three to six months range and that by contrast breaches of a condition of bail attracted lower penalties in the range of seven to 14 days. Her Honour dismissed the appeal, holding that the sentence of seven days imprisonment imposed for the offence of failing to appear in answer to bail was not manifestly excessive.
[35]	Counsel for the appellant complained of his Honour’s rejection of the explanation provided for the appellant breaching his bail, without further evidence. However counsel had already conceded that there was no evidence to corroborate the appellant’s instructions about being sick on the day when he was supposed to appear in court.
[36]	Even if the appellant was so sick on 18 June that he could not even contact his lawyers that day, he should have done so at the first opportunity after that, instead of doing nothing, thereby putting the police to the additional inconvenience and expense of finding him and arresting him. 
[37]	Although his Honour mistakenly referred to this as the appellant’s fourth breach of bail, he had corrected this error by the time he announced the sentence. 
[38]	I do not consider that his Honour committed an error in relation to the sentence which he imposed for the appellant’s breach of his bail, nor that the penalty was manifestly excessive. There is no basis upon which I can or should interfere with the penalty of seven days imprisonment imposed in relation to the appellant’s breach of his bail.
[39]	I dismiss this part of the appeal.
Resentence
[40]	I consider that the appropriate penalty for the appellant’s breach of his APO was a fine of $300. This would also attract the victims levy of $150.
[41]	The sentence of seven days imprisonment remains. However in light of the fact that the appellant has already served four days in prison before he was released on appeals bail, as well as time in custody on 25 May, I see no utility in him having to return to prison for the remaining two days. Accordingly I would backdate the seven day imprisonment term by five days and suspend the balance forthwith.
Orders
[42]	I make the following orders:
1.	The appeal is allowed.
2.	The sentences imposed by the learned magistrate are set aside.
3.	In relation to file 21523765 the appellant is fined $300 and required to pay the victims levy of $150.
4.	In relation to file 21531460 the appellant is sentenced to seven days imprisonment, backdated by five days and the balance suspended forthwith. The operational period of the suspended sentence is two days from today.
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