PARTIES:	SAYLOR, Ronald James v
SVIKART, Gottlieb Thomas

TITLE OF COURT:	SUPREME COURT (NT)

JURISDICTION:	JUSTICES APPEALS

FILE NO:	221 of 1993

DELIVERED:	18 May 1994

HEARING DATES:	26 April 1994

JUDGMENT OF:	MARTIN CJ.

CATCHWORDS:

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Parity - Co-offenders - Discrimination between co-offenders

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Circumstances of offender

Criminal law - Appeal - Appeal against sentence - Grounds for interference - Disparity - Co-offenders

Criminal law - Appeal - Appeal against sentence - Grounds for interference - Other matters - Denial of natural justice - Drawing adverse inferences from facts without warning

M v Waldron (1988) 56 NTR 1, at 5, applied.
G v Bourne, (Angel J., unreported, 4 October 1991), referred to.

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Reparation and restitution by offender

Criminal law - Appeal - Appeal against sentence - Grounds for interference - General principles - Failure to take into account relevant considerations - restitution by offender

Criminal law - Judgment and punishment - Sentence factor to be taken into account - Miscellaneous matters - Accused's positive good character

Cobiac v Liddy (1969) 119 CLR 257 at 272, applied.
Kowald v Hoile (No.2) (1976) 14 SASR 314, referred.
Giersch v Pennicott (1977) 15 SASR 300, referred.
Smith v Millicent (1986) 61 LGRA 76, referred.
R v Allinson (1987) 49 NTR 38, referred.
R v Vallett (1951) 1 All ER 231 at 232, referred.

Criminal law - Judgment and punishment - Factors to be taken into account - Circumstances of the offence

Cobiac v Liddy (1969) 119 CLR 257 at 272 & 265, referred to.

Criminal law - Judgment and punishment - Factors to be taken into account - Circumstances of the offender - Consequence of wrongful conduct upon offender

Cobiac v Liddy (1969) 119 CLR 257 at 277, referred to.

Criminal law - Appeal - Appeal against sentence - Grounds for interference - Disparity - Co-offenders - Justifiable sense of grievance - Sequence of sentencing

Lowe v R (1984) 154 CLR 606, referred to.
Kelly v R (1991) 33 FCR 536 at 538, referred to.
R v MacGowan (1986) 42 SASR 580, referred to.

Criminal law - Appeal - Appeal against sentence - Grounds for interference - Disparity - Co-offender's justifiable sense of grievance - General principle

Lowe v R (1984) 154 CLR 606 at 612, referred to. Criminal Code, ss229, 229(4),(5), 390(2) & 393(1)(b) Justices Act, ss130 & 130(2)
Criminal Law (Conditional Release of Offenders) Act, s4(1)

REPRESENTATION

Counsel:

Appellant:	M Flynn Respondent:	K Channels

Solicitors:

Appellant:	NAALAS
Respondent:	DPP

Judgment category classification Judgment ID Number: mar94005 Number of pages: 16

DISTRIBUTION:	LOCAL

mar94005

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 221 of 1993

BETWEEN:

REGINALD JAMES SAYLOR
Appellant

AND:

GOTTLIEB THOMAS SVIKART
Respondent

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 18 May 1994)

This is an appeal against sentence, involving (inter alia) questions going to denial of natural justice, error of law in regard to the exercise of a discretion not to proceed to conviction, and disparity of sentence between the appellant and a co-offender.

The charge, to which the appellant pleaded guilty was that on 28 June 1993, at Darwin, he received three travellers cheques to the value of $300 which had been obtained by means

of stealing, knowing or believing them to have been so obtained (Criminal Code s229).	The basis of the plea, as ultimately accepted by his Worship, was that the appellant aided the co-offender in disposing of the travellers cheques (s229(5)). The facts, as accepted by his Worship, were that the co-offender received four travellers cheques from a third person in the presence of the appellant, at the house occupied by the appellant and the co-offender, both of them knowing that the cheques had been stolen.	The co-offender practised the signature appearing on the cheques, and the appellant was present when the co-offender telephoned an escort agency and arranged for two women to attend at the house.	The appellant had made it clear he wanted nothing to do with the stolen cheques nor the proposed liaison with the women.	He thought his friend the co-offender was joking about that, but when the women arrived, the co-offender, having signed the travellers cheques by forging the signature he had previously practised, delivered three of them to the women.	As his Worship put it, the appellant's "resolve weakened" when the women arrived, and he and the co-offender availed themselves of the services provided by them.	It was in this manner that it was said the appellant had aided the co-offender in disposing of the cheques. The appellant was convicted and fined $400, ordered to pay the victims assistance levy of $20 and given time to pay.

The co-offender was dealt with by the same Court sitting at Darwin, but by a different Magistrate, a few days

later.	He pleaded guilty to receiving the travellers cheques and to charges of forging and uttering each of them.	Without proceeding to conviction, the learned Magistrate ordered that the co-offender be discharged upon his giving security by recognizance in the sum of $500 conditioned that he be of good behaviour for a period of 12 months.	It is that which gives rise to the appeal grounded in disparity, but there were other matters arising from the proceedings concerning the appellant. They commenced before his Worship on 6 October 1993, at which stage there was some discussion between his Worship and counsel for the appellant as to the basis upon which the plea of guilty was being entered.	His Worship had some doubt about it.	It had been put that the cheques had been converted into other property, that is, the services provided by the two women, and that the appellant had received part of that property.		There was argument addressed to the question of whether or not such a service amounted to property within the meaning of the Criminal Code.	It is a matter which need not be gone into here because, when the Court resumed two days later, during which time his Worship considered the matter, counsel for the appellant put forward the provisions of subs(5) of s229 as an alternative basis for the plea, and his Worship was prepared to accept that. In the meantime, there had been some publicity in the media concerning the case, in which the identity of the appellant was disclosed, and the legal proposition put by his counsel on the first occasion reported, that is, whether the services rendered by the two women were property within the

meaning of the Code. In the course of submissions after the plea had been accepted, counsel for the appellant said this:

"... as a result his name has been bandied about Darwin in the newspapers and I believe, although I didn't hear it, on the radio this morning; the media are very titillated by stories along these lines and they get coverage out of all proportion to the actual criminality involved ......	Reggie Saylor is the person who's occupying everyone's attention today, and being a Darwin person who's going to spend the rest of his life here, his time in court over the last week is probably going to be one of the more significant elements of his public persona, and it's not something that he's happy about.

He wasn't in a relationship at the time this happened but he is now, and publicity has caused he and his partner some degree of discomfort. He has to face that because he did what did, but I'd submit to your Worship that's a significant part of the penalty in itself".

His Worship made no response to that submission during the course of it.	At the conclusion of submissions, his Worship proceeded to address the appellant in relation to sentence and on this issue said:

"I'm not going to pay any attention to the effect of publicity on the defendant's life; the reason for this is that I can only assume that the defendant brought this situation onto himself because he gave the instructions to his solicitor to take the point that the supply of a prostitute or an escort service can be categorised as property. I feel that if he's brought it on himself its not something that I can take into account ".

If his Worship's views along those lines had been expressed earlier and counsel for the appellant given the

chance to consider and respond to them, then the opportunity would have arisen for further submissions to be made with a view to dissuading his Worship from a tentative point of view.	His Worship rejected the submission, and, without warning, held that publicity arising from a legal submission made on behalf of the appellant had been brought upon himself by his instructions.	That was to raise, for the first time during the sentencing process, an adverse inference which he believed should be drawn from the fact of the appellant's embarrassment. He did not warn counsel for the appellant that he was not inclined to accept that part of the submissions, which went to the mitigation of penalty.	That is no less important than failure by a Magistrate to warn that he or she was not inclined to accept part of the accused's version as to the circumstances of the offence or other matters going to the appellant's degree of culpability.		In such a case, if the sentencing tribunal is not prepared to act upon the accused's version of the facts, then counsel for the accused should be informed accordingly, and be prepared to go into evidence to resolve the matters (see for example M v Waldron (1988) 56 NTR 1 and the cases referred to at p5; G v Bourne, unreported Angel J., 4 October 1991).		In the latter case Angel J. applied the same principles to a case in which the learned Magistrate formed an unfavourable view of the accused and, on the basis of that view, rejected submissions as to his contrition, without indicating to counsel his opinion.	The fact there in question, was not as to the circumstances of the offence but as to the circumstances of the

offender, as here.	His Worship's rejection of part of the submission going to mitigation of penalty, without warning, by raising an inference adverse to the appellant based upon that submission, is procedurally unfair and may have led to a sentence being imposed which was more severe upon the appellant than that which may have been imposed had the submission been taken into account in the appellant's favour.

The offence carries a maximum penalty of seven years imprisonment (s229(4)) and a fine, in addition to or instead of imprisonment, of up to $5,000 (s390(2) of the Code).
However, in the case of an offence against s229 of the Code, the Court of Summary Jurisdiction has jurisdiction to hear and determine the charge in a summary manner where the property involved does not exceed $400. The jurisdiction of that Court to inflict punishment in respect of this type of offence is limited to imprisonment for six months or in the case of a fine,
$500.	In addition, the Court of Summary Jurisdiction may, upon convicting the defendant, order restitution of property stolen, taken or obtained by false pretences or received, embezzled or converted in any case in which the Supreme Court would, if the defendant had been tried before it, be by law authorised to order restitution (Justices Act s130). The power of the Supreme Court is to order that that person make restitution of property in relation to which the offence was committed (Code s393(1)(b)).	Where an order for restitution is made by the Court of Summary Jurisdiction an amount payable

pursuant to it shall, unless the Court otherwise orders, be paid to the clerk on behalf of the person in whose favour the order is made (Justices Act s130(2)).	His Worship raised the question of restitution.	Counsel for the appellant responded that his client was prepared to pay the money into Court and indicated that payment could be made a condition of a good behaviour bond or simply left to the appellant.		That apparent willingness on the part of the appellant was viewed unfavourably.	His Worship enquired as to why the appellant had not come to Court before the hearing date to make arrangements. His counsel's response was that he was unfamiliar with Court processes and came to Court that day to "face the music".		His Worship was unimpressed and implicitly suggested that the appellant should have made enquiries as to who had suffered the loss, the women, the person from whom the cheques were stolen or the issuing bank, and made arrangements accordingly.	In his Worship's view the appellant had done nothing prior to the hearing to minimise the consequences of his behaviour.		The Court was told the appellant was in receipt of $300 per fortnight, presumably unemployment benefits.	In the course of his sentencing remarks his Worship drew attention to the fact that the appellant "got something for nothing", and took into account that he had not made any endeavours to compensate for the use of the cheques by not extending leniency.	There is no indication that he took into account the appellant's offer to make restitution and be bound to do so.	That is to err by failing to take into account a relevant consideration.		Many

crimes injure particular individuals and the ends of justice are enhanced if restitution is made.	An offer of restitution made to the Court, the ability of the offender to pay it, and willingness to be bound to pay it, ought to be encouraged by some form of lesser penalty appropriate to the case.	The mitigation might be more if restitution has already been made, but that is not to discount entirely an apparently genuine offer made to the Court.	That is what happened in this case.

The other relevant power of the Court of Summary Jurisdiction in relation to the disposition of offenders, is comprised in the Criminal Law (Conditional Release of Offenders) Act s4(1):

"(1) Where -

a person is charged before the Court of Summary Jurisdiction with an offence against a law of the Territory; and

the court makes a finding that the charge is proved but is of opinion, having regard to -

the character, antecedents, age, health or mental condition of the person;

the extent, if any, to which the offence is of a trivial nature; or

the extent, if any, to which the offence was committed under extenuating circumstances,

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation,

the court may dismiss the charge or, without proceeding to conviction, by order, direct that the person be discharged upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that -

he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; and

he will, during the period so specified, comply with such conditions (if any) as the court thinks fit to specify in the order, which conditions may include -

the condition that the offender will, during the period so specified, be subject to supervision on probation under a person, for the time being, appointed in accordance with the order; and

the condition that the offender will obey all reasonable directions of a person so appointed."

A final submission was made to his Worship by counsel for the appellant, based upon the appellant's age, previous good character, the circumstance of the offence, his culpability, the effect of media publicity upon him, along with his antecedents (without specifying any) and "the mitigating circumstances rather than the trivial nature of the matter", (I think counsel meant extenuating circumstances), that the Court exercise its discretion under this provision so as not to proceed to conviction (give him a "chance to escape a permanent blemish for dishonesty").	In rejecting the submission, his Worship held that the publicity was not something which he could take into account under that provision; he noted the appellant's age, but as to character

said "at his age, he simply does not have sufficient runs on the board"; the offence was serious, but he would be given credit for his "initial reluctance".	I have already detailed what occurred in relation to the restitution issue.		It seems his Worship was of the view that there was some material upon which he might proceed to consider the exercise of the discretion contained in s4(1), see his reference to the appellant's degree of culpability, something which served to make the circumstances less serious or extenuating.	However, he rejected the submission based on his character for the reasons noted above.			Just what his Worship meant is not palpable.	The appellant was not shown to be of other than good character.		Maybe his Worship thought he had not lived long enough for that to be a relevant factor; maybe he thought there should be some evidence of positive good character.			The failure to give satisfactory reasons for rejecting his character as being relevant points to error in failing to properly take into account a material fact.	It may be that proper consideration of that fact would not have persuaded the learned Magistrate to accept the submission, but that is not the point.		His Worship erred, and I must therefore now consider the issue.		The leading authority is Cobiac v Liddy (1969) 119 CLR 257.	Reference might also be made to Kowald v Hoile (No.2) (1976) 14 SASR 314; Giersch v Pennicott (1977) 15
SASR 300; Smith v Millicent (1986) 61 LGRA 76, and R v Allinson
(1987) 49 NTR 38, a decision of the Northern Territory Court of Criminal Appeal.

There are some matters referred to in s4(1) which would be common to all offenders in a general sense, such as age and antecedents, but in individual cases there may be something special, such as youth or old age, or in the offender's antecedents, ("as wide [a word] as can be conceived" per Lord Goddard CJ. in R v Vallett (1951) 1 All ER 231 at 232, cited by Windeyer J. in Cobiac v Liddy at p277), or in regard to his or her health or mental condition which may tell either in his or her favour, or against it, or remain neutral. What the statute requires is that the Court have regard to those matters and it must do so especially if requested to consider the exercise of the power.	It must also pay regard to the extent, if any, to which the offence is trivial or committed under extenuating circumstances taking into account especially submissions in that regard.		It is not always apt to wait for a submission, cases may well arise where it appears to the Court that consideration ought to be given to the power and to invite submissions both from the accused and the prosecutor. None of the specified matters is necessarily to be regarded in isolation from the others or any of them or "apart from the whole of the circumstances of the offender and the offence" (per Windeyer J. Cobiac v Liddy at p276 and Barwick CJ. Kitto and Owen JJ. at p265).

Having paid regard to such of the enumerated and other matters as have a bearing upon the case at hand, it is then necessary to consider whether it is expedient to inflict

any punishment or to punish in either of the other prescribed ways.	If it is so considered, attention must be given to the working out of the options available and the making of the appropriate orders.

The appellant's previous good character and antecedents weigh in his favour, although, at the age of 21 he is no longer to be treated as if a juvenile, and his own initial reluctance to become involved demonstrates his knowledge of the wrong that was being done.	His culpability is not significantly diminished, he was a direct participant in the acts which constituted the offence.	The offence was not trivial, it involved a substantial amount of money's worth which was used selfishly.	Giving credit for his early attitude to the co-offenders offending leaves no room for any further extenuating circumstances.	Looking at the embarrassment caused by the media publicity, I bear in mind that that was claimed to have had an adverse effect upon the appellant no doubt brought about by the circumstances of the offence and the novelty of some of the legal questions arising from the charge brought against him.	Such embarrassment would rarely arise in relation to other examples of this type of offending. It was not brought upon himself in the way in which his Worship described it.	However, I do not consider that that consequence of his admitted wrongful conduct outweighs the inherent seriousness of this type of offence.		As has been said elsewhere, "if there were no receivers there would be less

theft".	It might be thought that the circumstances of this offence attract the Shakespearian ground that "nothing emboldens sin so much as mercy" (per Windeyer J. Cobiac v Liddy at p277).		If this was all there was to the appeal I would not be inclined to exercise the discretion sought.

It is now convenient to turn to other grounds of appeal which, in general, raise the disparity between the sentence of the appellant and of his co-offender, Mr Dennehy. It is said to be manifestly excessive, giving rise to a justifiable sense of grievance in the appellant unless corrected by this Court.	The co-offender was dealt with by a different Magistrate after the appellant.	However, the principle applies regardless of the sequence of the sentences (Lowe v The Queen (1984) 154 CLR 606 where the appellant had been sentenced to some two months before his co-offender; Kelly v The Queen (1991) 33 FCR 536 at 538 and R v MacGowan (1986) 42 SASR 580).	The respective offences for which the appellant and Mr Dennehy were dealt with have already been described along with the disposition in each case.	The co-offender, through clearly more culpable in respect of the criminal activity of that evening, escaped without conviction upon his giving security to be of good behaviour for 12 months.	The appellant did not have the benefit of there being no conviction and was ordered to pay a fine.

The two men were aged 21 at the time of the offence and lived together. Neither have prior convictions. Dennehy had paid $150 by way of restitution, to the escort agency, the appellant offered to pay, but was not ordered to do so.
Mr Dennehy was studying hospitality at the Northern Territory University and had completed 19 months of a 21 month course and wished to work in that industry in Darwin. He was employed casually at the time he was dealt with, earning approximately
$80 a week, whereas the appellant was unemployed.	Mr Dennehy provided the police with the name of the person who had given him the cheques, but there is no evidence that Mr Saylor was asked about that matter or, if he was, that he refused to assist. By Mr Dennehy's admission, in submissions made on his behalf to the Court, it was his idea to use the cheques in the way that they were used and it was he who rang the escort agency. Two references were provided on behalf of Mr Dennehy, but none on behalf of the appellant.	What exercised the mind of the learned Magistrate who dealt with Mr Dennehy was his:

"prior good history, his co-operation with police, his plea of guilty, his assistance to the police, his restitution and the fact that he was only 21 and about to embark on a career and the effect of convictions for dishonesty and what effect they'd have upon his career, which is a career, I would have thought, that requires a reputation of honesty ..... A conviction for, in effect, seven offences of dishonesty is a significant step to take for a young man of 21 who has no priors at all".

Should it be thought that Mr Dennehy was inadequately dealt with, it is important to remember that, there being no

appeal in respect of that, it is not open to this Court to substitute any sentence for the orders made.	In those circumstances it is "generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases" (per Mason J. in Lowe at p612).	The conviction of the appellant and its consequent recording amounts to a marked discrepancy when compared with the lack of conviction in the case of the co-offender.	The effect of a recorded conviction for a dishonesty offence in relation to employment was what partly motivated the learned Magistrate who dealt with Mr Dennehy. That he had embarked upon a career where such a conviction might be particularly damaging was recognised.	The appellant happened to be unemployed, and there was no indication as to his skills or ambitions, but it can not be denied that a conviction for his offence may have a detrimental effect upon his prospects.	The lack of convictions for crime is an important matter for any person seeking employment.	It is this aspect of the matter which gives rise to the appellant's grievance and, in the circumstances, it is justifiable.	After all, it was Mr Dennehy who led him into the offending, and there was nothing significantly different in the circumstances of each of them which could otherwise justify the imposition of such disparate outcomes.

The appeal against conviction and sentence is

allowed and they are quashed.	Without proceeding to conviction, the appellant will be discharged upon his giving security by his own recognizance in the sum of $500 that he will be of good behaviour for a period of 5 months (bearing in mind the period expired since his conviction).	I consider that there should also be an order for restitution in the sum of $150 to be paid to the Clerk of the Court of Summary Jurisdiction at Darwin within 2 months of this day.	However, I need to hear from counsel as to the appellant's present ability to pay that sum and as to the person on whose behalf the order is to be made.

Having heard from counsel as to these matters it is ordered that the appellant make restitution in the sum of $150 to be paid to the Clerk of the Court of Summary Jurisdiction within 2 months of this day on behalf of Josephine Rosemary Hillier trading as Buckles and Bows Escort Agency.