R v.	IRELAND

Court of Criminal Appeal of the Northern Territory of Australia

Nader, Maurice and Muirhead JJ.

6 July, 25 August 1987

Criminal law - Appeal - appeal by Attorney-General - manifest inadequacy of sentence - dangerous act (culpable driving) causing death while intoxicated - partially suspended sentence - conditional release - principles of sentencing - Criminal Code Act (NT) ss.154(1)(3)(4), 414 - Criminal Law (Conditional Release of Offenders) Act s.5(1)(b).

Sentencing - criminal law - appeal by Attorney-General - manifest inadequacy of sentence - partially suspended sentence - conditional release - whether period of good behaviour bond ought not be less than the period of the balance of the head sentence - principles of sentencing - Criminal Law (Conditional Release of Offenders) Act: s.5(1)(b).

Sentencing - criminal law - appeal by Attorney-General - dangerous act (culpable driving) causing death while intoxicated - maximum penalty - acceptance of doctrine of general deterrence - decision in Baumer v. R to be followed in future - principles of sentencing.

Cases applied:

R v. Tait & Bartley (1979) 24 ALR 473
R v. Yates (unreported, 11 December 1986)

Cases considered:

Baumer v. R (unreported, 3 July 1987) Breed v. Price (1985) 36 NTR 23
R v. Calder (1987) 1 Qd. R. 348
R v. Visconti [1982] 2 NSWLR 104
Valentine and Garvie (1980) 2 A.Crim.R. 170

Cases followed:
R v. Brusch 11 FCR 582 (1986)

Cases referred to:
Edsall (1981) 8 A. Crim. R. 1

Griffiths v. The Queen 137 CLR 293 Osenkowski (1982) 5 A.Crim.R. 394
Peel v. R. (1971) 125 CLR 447
R v. Boswell [1984) 3 All ER 353
R v. Hewett (1981) 27 SASR 364
R v. Oliver (unreported, 20 March 1980) NSW Court of Criminal Appeal

Counsel for Appellant	Mr Karczewski
Solicitor for Appellant	Solicitor for the Northern
Territory

Counsel for Respondent	Mr Mildren QC
Solicitor for Respondent	Mr O'Brien

nad870455

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. CA 5 of 1987

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
sec No. 466 of 1986
BETWEEN:
THE QUEEN
Appellant
AND:

SHANE LEONARD IRELAND
Respondent

ORDER OF COURT

The order of the Court is that the appeal is allowed to the extent that the respondent shall be required prior to his release to enter into a recognizance of $1,000 to be of good behaviour for a period of 2 years from the date of his release.	It will be a condition of his bond that for a period of 6 months from that date he shall be under the supervision of a probation officer appointed by the Director of Correctional Services whose directions as to residence and employment he shall obey.	It will be a further condition of his bond that during the period of the recognizance the respondent shall abstain from alcohol and other drugs save those which may be medically prescribed.

Otherwise the appeal is dismissed.

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. CA 5 of 1987

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

sec No. 466 of 1986 BETWEEN:
THE QUEEN
Appellant

AND,

SHANE LEONARD IRELAND
Respondent

CORAM:	NADER, MAURICE and MUIRHEAD JJ

REASONS FOR JUDGMENT
(delivered 25 August 1987)

NADER J:	This is an appeal as of right under section 414 of the Criminal Code by the Honourable the Attorney-General

against a sentence imposed upon Shane Leonard Ireland,the respondent, on 24 March 1987 for an offence under section 154 of the Criminal Code to which the respondent had pleaded
guilty.	The terms of the indictment were as follows:

On 18 September 1986 at Winnellie in the Northern Territory of Australia, did a dangerous act, namely, drove a Ford Falcon sedan Queensland registration number
125 PQD upon the Stuart Highway while under the influence of alcohol and collided with a bicycle being ridden by one Robert Visser and thereby caused the death of the said Robert Visser.

The indictment specified subsections 154(1), (3) and (4) of the
Criminal Code.

The respondent was sentenced to imprisonment for 3 years.	It was ordered under section 5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act that he be
released after serving 9 months of the sentence upon his entering into a recognizance in the sum of $1000 to be of good behaviour for 12 months.	A condition of the recognizance was that the respondent abstain from intoxicating liquor or drug except upon prescription of a legally qualified medical practitioner.

THE GROUNDS OF APPEAL

The appellant relies upon the following grounds:

The learned trial judge erred in law:

in imposing a head sentence which in all the circumstances is manifestly inadequate;
in ordering the respondent's conditional release after the serving of 9 months which in all the circumstances was manifestly inadequate.

in ordering that the period of good behaviour be for a period less than the balance of the head sentence.

THE FACTS
The facts upon the plea of guilty were presented orally by the Crown Prosecutor together with documentary evidence comprising a hand-up brief.

At about 5.30 pm on 18 September 1986, the respondent finished work at the Channel Island Power Station.	He went from work to the Maranga Hotel at Winnellie, a suburb of Darwin arriving at the hotel at about 6 pm.	He drank beer with work mates.	The respondent estimated that he had consumed 8 or 9 cans of beer before leaving the hotel at about 9.30 pm.	He drove his car onto the Stuart Highway, turned right and drove south.	The inbound and outbound lanes of the highway, two in each direction where the respondent was driving, were separated by a wide median strip.	The lanes were marked on the road surface.	The

respondent was familiar with the stretch of road.	The respondent's vehicle was travelling at about 70 to 80 kph and weaving from side to side across both outbound lanes.	It increased speed to about 95 or 100 kph and drew up behind another car travelling in the left-hand outbound lane.	The respondent's car moved to the right hand outbound lane, overtook the other car and returned to the left hand lane.	After this manoeuvre, the respondent's car travelled on the centre of the road, straddling the line dividing the two outbound lanes: as a witness said, 'in the centre of the road.'	At a point about 50 metres past some traffic lights at the intersection of Hook Road and the highway, the respondent's car veered to its left and threw up a cloud of dust from the unsealed verge at the left hand side of the road.
The car moved back onto the sealed surface.	Shortly after, the bonnet of the respondent's car was seen to be up.	The respondent was driving with his head out of the window in order to see where he was going.	A short distance further, the respondent's car stopped and he got out.	His car was later seen going into a dip in the road just before the intersection of the Stuart Highway and Amy Johnson Avenue.	A very short time later, it was seen to have mounted a traffic island and come to a stop.	The off-side front wheel was folded under the body of the car.	The respondent got out of the car, went to the off-side front wheel and shook it as if to straighten it.	He re-entered his vehicle and tried to start the engine.	A witness to these last events, Mr. Newcastle, told the respondent not to start the car because there was petrol everywhere.	The respondent said to Mr. Newcastle: 'You have to

get me away from here' and went on to talk about an accident. According to Mr. Newcastle, the respondent said: 'The boys from work put the piss on.	I had a few drinks with them.	I knew I had too much and shouldn't have driven.'	Mr. Newcastle formed the opinion that the respondent was heavily intoxicated.

A passenger in Mr. Newcastle's vehicle left to call the police.	In her absence the respondent removed a number of empty beer cans from his car.	He handed two of them to Mr. Newcastle, telling him to throw them away.	The respondent himself threw four or five empty cans into the bush at the side of the road.
He continued to talk to Mr. Newcastle, repeating the words: 'I'm gone.	I'm gone this time.'

A short time later, a medical practitioner arrived and informed those present that there was a push bike further down the road.		The respondent was saying words like: 'I've killed someone.	I've really fucked up this time.'

There were no witnesses to the collision which occurred at a point approximately 400 metres south of the intersection of Lee Street and the Stuart Highway.	It happened when the respondent's car moved onto the unsealed left-hand side of the highway, shortly after which the bonnet of the car was seen to be up.

The deceased was riding his bicycle outbound along the Stuart Highway at the point of the highway referred to.	He was dressed in a white T-shirt, white shorts and white running shoes. He bicycle was equipped with an orange reflector below the seat, reflectors on the pedals and wheels.	The tail light and headlight were lit.	The bicycle was being ridden close to the left hand side of the bitumen.

Street lighting in the area where the collision occurred was good.	The weather was fine and dry.	The relevant section of the highway was straight and level with no obstructions to forward vision.

The deceased's bicycle was struck from behind by the respondent's car.		He was killed almost immediately from shocking injuries.		His body was found about three metres in from the edge of the bitumen, about 118 metres from the estimated point of impact.	Upon impact the windscreen of the respondent's car was broken, and the near-side headlight and grill area received moderate damage.	The roof line of the near-side of the car was buckled.

When the police arrived at the scene, the respondent held out his hands offering to be handcuffed and said: 'Give it to me.	I did it.	I'm the one.'	He was taken to Berrimah Police Station where a breath analysis was made.	The respondent had a blood alcohol concentration of 0.24%.	He was then arrested for driving with excessive blood alcohol and put in a cell.

Interrogated the next day by police, the respondent answered questions untruthfully at first in order to avoid the consequences of his conduct.		He gave a false account of what happened, the details of which are of no relevance.		However, during the course of the interrogation, at about 8.50 am, the respondent broke down: not, it should be added, as the result of any improper conduct of the interrogating police.	The interrogation was suspended till 10 am.	When it resumed, the respondent admitted having been drunk and to having driven his car when he left the hotel.	He admitted to having collided with a bicycle as he passed the Dunlop premises on the highway.
Questions and answers 137 to 162, inclusive, of the Record of Interview were as follows:

'Q137

Q138

Q139

Q140

Q141

Q142 Q143

When you travelled past Dunlop, can you recall hearing any noises.
I remember a bike, one minute he was there and the next minute there he was.

You state that he was there, did you know at the time it was a male on the bike.
No I dont.

Do you remember seeing any tail lights on the bike.
No.	No.
When you saw the bike, what happened.
Id say my reactions would be to brake it was too quick I cant remember.

Did you hear any noise when your car and the bike collided.
Yeah, boom bump thats it.
Can you remember the windscreen breaking. No.
After the collision, did you stop the vehicle. Yeah I did.

Ql44

Ql45

Ql46

Q147

Ql48 Ql49

Ql50

Ql51

Ql52

Ql53 Ql54

Ql55 Ql56
Ql57

How far from the accident did you stop.
I dont remember I would have pulled off the side of the road.

Do you remember getting out and closing the bonnet.
Yes.

Why was the bonnet open.
It would have been the result of hitting the fellow on the bike.

When you closed the bonnet, did you look back
.to the accident scene and see anything. It was dark No I didnt see anything.

Did you look back. Yeah I did look back.

At this stage you knew that you had been involved in a collision with a person on a push bike.	Is that correct.
Yes.

Did you make any attempt to return to the scene to see if any one was injured.
No.

Did you think that anyone would have been injured.
Id say yes.

If you thought that someone was injured why didnt you return to the scene to offer assistance.
I was scared I just wanted to get home.

Did you see any dust in the area. No.

When you hit the bike, where about on the carriageway were you travelling.
In the left lane.

Well to the left or in the middle of the lane. In the middle of the lane.

When you closed the bonnet, what did you do then.
I got back into my car and proceeded off.

When you left the scene, did you know that it was the wrong thing to do.
Course yes I did I dont know why I did it.	I
was drunk.

Ql58 Did and Yes it.

you know that it was wrong not to return see if anyone was injured.
I knew it was wrong.	Yes I knew I knew

Ql59 When your What home

you got back into your car, what were thoughts.
have I done, help, I thought if I get I'll be allright.

Ql60

Ql61 Ql62

When you closed the bonnet, did you see anything on the bonnet.
I seen the blood on the bonnet.

Was there much blood there. Yeah Id say a lot of blood.

From the amount of blood, did you think that the bike rider was badly injured.
I didnt think, if Id have thought I would have gone back and got him but I was drunk and didn't think.	If Id have thought I would have gone back and picked him up.'

The respondent's antecedents were very favourable.	He was born on 6 November 1965 at Newcastle in New South Wales.		He has a good work record.	His usual occupation is that of trades assistant.	He has no convictions of any kind other than for this offence.

Witnesses called on the respondent's behalf included his employer at the time of the accident and his father, Mr. Leonard Ireland.	The respondent himself gave evidence.	In general it can be said that it was open to his Honour to find that, apart from the matter that brought the respondent before the court, he was a man of good, if not excellent, character, well respected, with a supportive family which includes a brother and two

sisters.	The respondent's father came from Sydney to give evidence upon his plea of guilty.	In the course of giving evidence, the respondent appears, from a reading of the transcript, to have been frank with the court.	It was open to the learned sentencing judge to find that the respondent was of moderate drinking habits and that the intake of alcohol on the fateful occasion was exceptional.	There was no evidence that he had what could be described as a drinking problem.

THE RELEVANT STATUTE LAW

Section 154 of the Criminal Code under which the respondent was charged is as follows:

154. DANGEROUS ACTS OR OMISSIONS
Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.

If he thereby causes grievous harm to any person he is liable to imprisonment for 7 years.

If he thereby causes death to any person he is liable to imprisonment for 10 years.

If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years.

Voluntary intoxication may not be regarded for the purposes of determining whether a person is not guilty of the crime defined by this section.

Section 5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act provides:

5.	CONDITIONAL RELEASE OF OFFENDERS

(l)Subject to this section, where a person is convicted of an offence against a law of the Territory, the court by which he is convicted may, if it thinks fit, by order-

(b) sentence the person to a term of imprisonment but direct that the person be released, upon his giving
... security ..., either forthwith or after he has served a specified part of the sentence imposed upon him.

THE APPELLANT'S SUBMISSIONS

The appellant made the following submissions in support of the grounds of appeal:

In fixing the head sentence of 3 years, the trial judge paid insufficient regard to the high blood alcohol reading.

The head sentence failed to give sufficient weight to the principle of deterrence which ought to be dominant in cases of the kind.

The head sentence was so far 'out of line' with sentences imposed for this kind of offence as to require correction.	Such correction would ensure consistency in sentencing and would demonstrate the true seriousness of the offence.

The Crown relied on a brief analysis of 11 cases in this court between 1984 and May 1987, inclusive.	They were all cases of persons sentenced for offences under section 154 of the Criminal Code.	They were
summarised for the court by documents which are reproduced in the schedule to these reasons.

The sentencing judge was unduly influenced by the facts of good character and of no prior convictions.	Good character and absence of prior convictions have nothing to do with an offence under section 154 and accordingly do not assume the same importance as in other cases.

The time required to be served was inadequate.	The time to be served, no less than the head sentence, should be properly proportionate to the gravity of the crime and must operate as a real deterrent to others.

A role of the Court of Criminal Appeal is to ensure a degree of consistency of sentences imposed for like crimes.	Both the head sentence and that part of it required to be served are 'so far below the bottom of the range for this type of offence as to require correction'.

The court's decision in R. v Baumer (unreported
3 July 1987), makes it clear that section 154 of the Criminal Code requires the fact of intoxication of a person convicted under the section to be given separate consideration by the sentencing judge in order to determine what part of the further imprisonment of 4 years specified by subsection 154(4) should be added to the sentence otherwise appropriate.	In the instant case the sentencing judge gave inadequate weight to subsection 154(4) having regard to the fact that intoxication was the dominant factor giving rise to the collision.	Consequently, a significant part of the further term of 4 years should have been added to the sentence otherwise appropriate.	This was not the precise form of the submission, however, it accords with my understanding of it.

When conditional release of an offender under the Criminal Law (Conditional Release of Offenders) Act is ordered to be subject to a bond to be of good

behaviour, the term of the bond should extend at least to the time of expiry of the head sentence, otherwise the court will lose control over the prisoner before the head sentence has expired.	This is undesirable.

THE RESPONDENT'S SUBMISSIONS
The following submissions were made on behalf of the respondent:

Appeals by the Attorney-General against sentence should be rare and directed to the end of establishing some matter of principle.

The court should not interfere unless some error affecting the sentence is demonstrated.	Such error is demonstrated when it is shown that the sentencing judge acted on a wrong principle, that he misunderstood the facts or that the sentence was manifestly inadequate.
The appellant's grounds 1 and 2 are based on an alleged
manifest inadequacy.	Since none of the defects referred to have been shown, the grounds must fail.

The Crown conceded the appropriateness of the sentencing judge taking into account the good character and favourable antecedents of the respondent and should not be now heard to say that those matters should not to have been given weight or should

have been given very little weight.	When the Crown Prosecutor referred, during the proceedings before the sentencing judge, to the fact that another judge of the court had just sentenced one, Baumer, to 8 years imprisonment with a 4 year non-parole period for an offence of a similar kind, he volunteered as a matter of significance, '...but there were shocking antecedents.'	When the learned sentencing judge, seeking help of the Crown, asked whether the best way to reflect favourable antecedents was in the non-parole period, the Crown Prosecutor said, 'Yes, •.• or not fixing a non-parole period .•. and fixing a fixed date for release pursuant to the Criminal Law (Conditional Release of Offenders) Act.'	That response to his Honour was not accompanied by any submission that little or no weight should be given to good antecedents.		These comments by the Crown were apt to lead his Honour to the belief that the prisoner's antecedents were a fully material factor.

The fact that the decision in Baumer v The Queen (supra) has now made it clear that a sentencing judge should consider a further sentence of imprisonment under subsection 154(4) ought not now to be applied to the disadvantage of the respondent.	The arguments which found favour with the majority in that case were not put by the Crown to the sentencing judge here.	Now to apply Baumer to this case would have the
affect of putting the respondent in jeopardy once again.

The Crown did not suggest to the sentencing judge that a head sentence approaching 4 years was appropriate in this case.
A fair reading of the Crown Prosecutor's submissions on sentence was that a sentence of 4 years or more would be near the upper limit.	The Crown Prosecutor there submitted, '...to show what the upper limit seems to have been in cases in the past, the case of Collishaw, 4 years..•the case of Goodwin, 4 years, Lewis 3 years, Narjic 4½ ... '.

The Crown Prosecutor, conceding to the sentencing judge that the case was appropriate for conditional release, was thereby conceding that it was less serious than most offences of a similar nature:	there is authority that conditional release is inappropriate for serious offences.	The fixing of a non-parole period is more appropriate in serious cases.

In any event, the extent to which the sentence in this case is lower than the bottom of the range of the sentences under section 154 put forward by the appellant is so small as to fail to demonstrate that, on that account, the sentence was manifestly inadequate.

The appellate court must be careful not merely to substitute its own opinion for that of the sentencing judge who had advantages over the appeal judges, including the advantage in this case of seeing and hearing the respondent, his father and a character witness give evidence.	The sentencing judge was also

able to observe the respondent throughout the proceedings. Valuable impressions can be gained in this way by a judge which can not, in the nature of things, be conveyed to the appeal judges.	An appellate court does not interfere just because it might disagree with the sentence appealed against.

The period to be served in this case, namely, 9 months, whilst slightly short of the 'range' of sentences referred to, is not so much less as to enable inadequacy to be categorised as manifest.

Although it is 'undesirable' (R. v Brusch;
Brusch v R. (1986) 11 FCR 582) to condition release upon a
bond that will end before the expiry of the head sentence, it is not necessarily wrong to do so.	For so long as the bond is current, if it is broken the respondent will become liable to serve the balance of the sentence.	In this case the sentencing judge clearly took the view that the respondent had no drinking problem, and that it was undesirable to place him on a 'no drinking' bond for more than 12 months after his release from prison.

CONCLUSIONS

In order to show manifest inadequacy, the appellant resorted to other sentences for offences under section 154 of the Crilll.inal Code.	There is justification for referring

to prior sentences to help determine the sentence that ought to be passed in a particular case.	It is the understanding on the part of judges that justice ought to be evenhanded.	Reference is made to sentences in earlier, like cases to ensure that the sentence about to be passed is not so different from other sentences as to infringe against the principle of evenhandedness. Such a sentence may manifest injustice.

The question was taken up by the Court of Criminal Appeal(NSW) in R v Visconti [1982] 2 NSWLR 104.	Visconti
was sentenced for rape committed on 4 January 1978, assault with intent to rape committed on 21 March 1987 and indecent assault committed on 18 April 1978.	He was sentenced to penal servitude for 13 years for the rape, 10 years for the assault with intent, and to 12 months for for the indecent assault.	The sentences were cumulative, producing an aggregate head sentence of 24 years.	A non-parole period of 12 years was specified.

Street CJ, with whom the other judges concurred, made special mention of the difficulties confronting a court sentencing a person for the crime of rape.	His Honour said it is a crime the circumstances of which can vary greatly from case to case.	There are other crimes such as armed bank robberies and ordinary breaking, entering and stealing from suburban homes that can be fairly readily classified in objective terms, and evenhandedness in the matter of sentencing can be more easily achieved.	It may be said of offences under section 154 of the

Criminal Code as of rape, that their possible forms vary greatly.

In the course of his reasons in Visconti, Street CJ referred to R v Oliver an unreported decision of the
Court of Criminal Appeal (20 March 1980) in which he had said:

"The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration.	The task of the sentencing judge, no less that the task of an appellate court, is to pursue the ideal of evenhandedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature.	That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognized judicially as relevant to the case in hand.	This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics.	There is an enormous difference between recognizing and giving weight to the general pattern as a manifestation of the collective wisdom of the sentencing judges on the one hand and, on the other hand, forcing sentencing into a strait jacket of computerization.	There is, moreover, always a danger,   as is recognized on the civil side in the assessment of damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another."

Having regard to Visconti's total criminality 'in a broad way' in the light of official statistics of sentencing for the same kinds of offences, and having regard to a particular aggregate sentence of 20 years passed upon a prisoner, Kemp, for many offences including 4 rapes (Street CJ could not himself recall having encountered a case comparable in gravity to, or even approaching comparability to, Kemp's case), his Honour said

that he was constrained to the conclusion that the cumulative aggregate of 24 years imposed upon Visconti was excessive.	The Court of Criminal Appeal substituted an aggregate sentence of 13 years.	This was a dramatic reduction: from 24 years to 13 years.

The Court said that, while there is also a requirement for preserving an element of relativity in non-parole periods, there is more room for the exercise of judicial discretion in particular cases in the specification of non-parole periods.	I would respectfully adopt both elements of this proposition as correct statements of the law.

It is clear that, in Visconti, the Court of Criminal Appeal was confronted with extreme disparity.	The contrast between the total criminality of Kemp and that of
Visconti, unfavourable to Kemp, carried the consequence that for
Visconti to have suffered an aggregate sentence 4 years longer than that of Kemp rendered injustice manifest and cried out for appellate intervention.	The same could be said when Visconti's sentence was compared with the sentences which all other convicted rapists had suffered over a comprehensive statistical sample.

The sample given to the Court in Visconti
comprised a large number of cases dealing with a class of crime for which a settled and well recognized sentencing pattern had emerged.	The 11 cases constituting the statistical sample in the

instant case are not only few in number, but by reason of the novelty of section 154, cannot be taken to contain sentences reflecting a well established sentencing pattern.	Indeed, it was only on 3 July 1987 that this court gave its decision in R v Baumer,	defining for the first time the application of subsection (4).	It is one thing to appeal to the 'collective wisdom' of which Street CJ spoke as emerging from a history of sentencing of the kind put before the court in Visconti,
but quite another to expect to find such wisdom in the inadequate statistical material put forward on this appeal.

There is, however, another reason why the resort by the appellant to the statistical material should fail: it does not, in fact, demonstrate a departure from past sentencing practice under section 154 sufficient to show lack of evenhandedness so marked as to manifest injustice.		To require judges to reflect such fine tolerances would be to do what Street CJ warned against: to force sentencing into a strait jacket of computerization (Oliver supra.)	The vice of forcing such
garb upon sentencing is that it is likely to deter a judge from
correctly reflecting some factor proper to the case in the sentence to be passed just to avoid deviation from a statistical standard.	In order to have the effect of manifesting injustice, statistics must, in my opinion, demonstrate striking disparity.

I had occasion to make use of statistical material in
Breed v Price (1985) 36 NTR 23.	That case concerned

money fines imposed for the offence of driving a motor vehicle, that did not have a current compensation contribution, on a public street contrary to s 107B of the Motor Vehicle Act.
There the fine imposed was $2000, against an average fine imposed in 20 recent cases of $151.	The appellant's case contained no significant aggravating factor to distinguish it from the ordinary case.	The offence there in question was of a kind not admitting of the great variety found in either rape or offences under section 154 of the Criminal Code.	There, the
disparity was so great as to be inexplicable on any hypothesis concerning the facts of the case or the antecedents of the appellant.	There, the disparity itself made manifest the error of the Justices.

The foregoing remarks apply to both a headsentence as well as to a period required to be served before release whether by reason of an order for release under the Criminal Law (Conditional Release of Offenders) Act or by the fixing of a
non-parole period.

Before leaving the matter of comparable sentences, I would repeat a warning given elsewhere of the danger inherent in merely following sentencing patterns.	King CJ	said in Osenkowski (1982) 5 A. Crim. R. 394:

'It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.	There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.

There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.	The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.'

The appellant asserts that the sentencing judge failed to give sufficient weight in the sentence to the fact of the high blood-alcohol reading of the respondent.	For my part, to translate evidence of a blood-alcohol reading into degrees of intoxication understandable by non-medical persons, in the absence of a statutory aid, requires the evidence of an appropriate expert witness.	It would have been right for the sentencing judge to give such raw evidence little or no weight.
However, the question is academic only.	There was ample evidence, all one way, that at the material time the respondent was drunk.	The appellant ought more properly to have couched his complaint in terms that the sentencing judge failed to give sufficient weight to the extent to which the respondent was intoxicated by alcohol.	It is true that the learned judge did not expressly quantify that part of the sentence referable to subsection 154(4).	There is, in my opinion, no way of knowing whether his Honour consciously added a specific term of imprisonment in accordance with the requirement of subsection 154(4).	However, even if he did not do so, I would not allow the

appeal.	The Crown Prosecutor did not favour his Honour with the submissions that were put to the Court of Criminal Appeal in Baumer, even in substance.	It was in that appeal that the
duty to add a specific further term of imprisonment was first judicially defined.	The respondent should not be put in jeopardy again by reason of that case, decided after he had been sentenced.

The appellant referred to a number of cases in which judges had said that, because of great loss and suffering caused by persons who drive motor vehicles whilst affected by alcohol, those who do so ought to suffer appropriately severe punishments in order to deter them and others from such conduct.	I will not refer to the innumerable cases in which something like that has been said.	The validity of such general statements is unchallengeable.	However, they lack utility in particular instances because they beg the question whether a particular sentence is appropriately severe.	In general, it is precisely the function of the sentencing judge to make that very judgment. Statements of general principle concerning matters of discretion rarely help to solve particular problems.	Such statements are more useful as a guide to the sentencing judge.	They sometimes help to explain to a prisoner why he is about to be the subject of a heavy sentence.

The respondent may have been fortunate that the same submissions as are now put by the appellant were not put to the

sentencing judge.		His Honour may have been persuaded to deal with the respondent more severely.	They contrast markedly with the submissions put to the sentencing judge.		There, the Crown said little to create a realization of the gravity it now  contends for.	The Crown appeals against sentence as of right. This was not always so.	There is no reason excusing the Crown from putting fully to the sentencing judge such matters as are relevant to the sentence.		The	contrary tradition existed when there was no right of appeal by the Crown.		If it is necessary to refer to cases and other material in order adequately to assist the sentencing judge, the Crown, like any other party to litigation, ought to make such reference.	The Crown could once display a detachment from the matter of sentencing.	But, now, the right of appeal places upon the Crown the duty to use its resources to bring to the sentencing judge's attention all relevant matters.	If it were thought that a head sentence in the present case of less than 4 years would be erroneous and appellable, the sentencing judge should have been told, and arguments put in support of the submission.			I can see no reason why the Crown should not be expected to inform the court of any lower limit of the permissible head sentence, period to be served or non-parole period.	Why should such a matter be kept hidden up the Crown Prosecutor's sleeve?	If there is a sentence so low that it exceeds the judge's discretion to show mercy, let the judge be told about it.	The duty may not require anything to be done in furtherence of it if the sentencing judge does not invite a submission.	But where help is sought, as it clearly was in

this case, it should be given unstintingly.	The duty is not discharged by the so common response: 'The Crown says this is a serious matter and calls for a sentence reflecting the gravity of the case'.	The submission ought to be reasoned; any relevant authority ought to be referred to; and if a minimum sentence is required as a matter of law, the minimum ought to be clearly specified.	The cryptic and gentle utterances of the Crown in this case were insufficient to signal to the judge the very serious view taken by the Crown, now disclosed by this appeal.

In order to demonstrate what I mean it is necessary to turn to the transcript of the proceedings.	Mr. O'Brien, counsel for the prisoner, said in the course of his submissions on sentence, 'An examination of some of the cases, your Honour, seem to generally indicate that an appropriate penalty in these circumstances would vary between 2 to 3 or 4 years of  imprisonment with perhaps a non-parole period generally speaking, your Honour, in the vicinity of 6 to 9 months.'	Mr. O'Brien continued his submissions on sentence in support of that proposition.	The Crown Prosecutor, asked whether he had any comment, said, 'No.	Perhaps I might take slight issue with one of the submissions made by my learned friend, and that is what  the appropriate range of sentence is your Honour.		I also don't unnecessarily wish to burden your Honour with reciting the cases anC the penalties that have been imposed, but your Honour, it is only last week Asche J imposed a head sentence of 8 years, and with a non-parole period of 4 years, but that was, your Honour -

of sentencing appeared to be and 'the point I was going to make, your Honour, was that I know of no case where there has been an immediate release of a prisoner •..': emphasis mine.	He went on to say that the courts have in the past imposed severe non-parole periods and have rewarded good antecedents with a conditional release at a fixed date.	The Crown Prosecutor said that even where there has been conditional release, there has been a substantial period ordered by the court to be served, indeed above the six or nine months referred to by Mr. O'Brien.

It is difficult to resist the conclusion that the present attitude of the Crown has developed markedly since those submissions were made to the learned sentencing judge.

The appellant's assertion that 'the principle of deterrence' was given insufficient weight, like the assertion that sentences for offences of this kind committed while affected by alcohol ought to contain an exemplary element, is not especially helpful.	No-one would contradict the general proposition that deterrence is a matter that ought to have been taken into account by the judge.	But, unless it can be demonstrated that his Honour failed to have a proper regard to the matter, the mere assertion by the appellant takes the case no further.

I propose to digress shortly to express a view, I hope orthodox, of how deterrence and other factors material to sentencing should be weighed in the balance.	It is necessary to keep in mind that a basic task of the sentencing judge is to determine what part, if any, of the term of imprisonment specified in the Criminal Code, as that to which an
offender is liable, ought to be in fact imposed.	The sentencer should first determine the sentence that is appropriate having regard to the circumstances of the crime.	I will call this the 'objective sentence'.	It must be determined by looking at the facts of the crime in the light of the intention of Parliament as expressed in the legislation creating the offence and prescribing the punishment for it.		This does not mean that the yardstick is always the maximum term to which the offender is liable.	In the case of a common law misdemeanour there may be no such maximum.
However, in the Northern Territory the measure of the seriousness
of the offence, as a class, will usually be the maximum to which the offender is liable.	Where the offence is one, like those under section 154 of the Criminal Code, that infringes a
statute recently enacted, where Parliament has in recent years considered the maximum penalty, the court would show an unhealthy arrogance if it were to apply a different standard from the one set by the legislature.	There are older statutes prescribing penalties that have not been reviewed or considered by the legislature for generations.	The Parliament has been aware of sentencing practices in relation to them.	In many cases, sentencing practices have changed with the attitudes of society.

The fact that the Parliament has stood by and not interfered with these practices justifies the view that it intends the courts to go on as they have been.	In relation to such offences, sentencing practice is the better criterion than the maximum penalty.	The objective sentence must be arrived at having regard to the fact that the heaviest sentences are reserved for grave manifestations of the offence.		The objective sentence thus determined would be the appropriate punishment if there were no mitigating factors.	It should also be remembered that no other factor can operate to make more appropriate a heavier sentence than the objective sentence.	A bad criminal record can do no more than disqualify the offender from leniency to which he might otherwise have been eligible.		A failure to confess the crime or to plead guilty has a similar effect: it may deprive the offender of the favourable consideration he would have received otherwise. The fact that a prisoner shows promise of leading a life useful  to society may be a reason for adjusting the objective sentence downwards in order to encourage rehabilitation.	The same reasoning applies to the so-called 'principle of deterrence'.
The fact that a particular class of offence is prevalent and
especially inimical to the well-being of society may call for deterrence to others and may have the effect of reducing the operation of factors that would otherwise have earned a greater measure of leniency.	It might not be possible, for example, to give such weight to good character as might otherwise have been given in a case where the need to deter is strong.	The possible kinds of relevant factors are innumerable, some mitigating, some

not, but none of them can operate to increase the objective sentence.	It follows that the sentencer should always have in his own mind, in relation to any sentence about to be passed, the objective sentence.	The actual sentence will usually be less than the objective sentence and, sometimes, a mere fraction of it.	The judge is free in an appropriate case to exempt the offender from having to serve any of it.

Deterrence, then, is never a reason for imposing a sentence greater than the objective sentence, although it may operate to reduce the effect of factors that would otherwise have induced greater leniency.	The sentencing judge said nothing to show he did not give due weight to the requirement for general deterrence.	There is nothing else to show that he overlooked deterrence as a factor.

Good character was one of the several factors that the judge referred to as being taken into account on sentencing.	The submission by the appellant that prior good character and lack of prior convictions have nothing to do with an offence of the kind committed by the respondent and therefore do not assume the same importance as in other areas sits uneasily with the submissions of the Crown Prosecutor to the sentencing judge.	They have been referred to above.	The Crown Prosecutor, in the same breath as he referred to Baumer, where the prisoner was sentenced
to 8 years imprisonment and a 4 year non-parole period specified,

informed his Honour of the shocking antecedents of Baumer.	To do so could have given no other impression to his Honour but that the antecedents were a major reason for such a heavy sentence.
In view of that submission, I am loath to hear the Crown now complain that character is not a significant matter.	If bad antecedents count, so must good ones: eadem est ratio oppositorum.

In any event there is sound precedent for taking prior good character into account in cases of this kind.	They do not constitute an exceptional group.	The weight to be given to good character depends on the judge's evaluation of all the circumstances. See, for example R. v.	Robinson [1975] VR
816 at p829 where a 'long record of persistent lawlessness' was taken into account.	In R v Hewett (1981) 27 SASR 364 a
Crown appeal was dismissed taking into account, inter alia, the respondent's previous good character.	Reference may also be had to Edsall (1981) 8 A. Crim. R. 1 at p3.		Lord Lane CJ, in
R   v Boswell [1984] 3 All ER	353, a case of causing death by reckless driving, said at p357, 'On the other hand the
mitigating features may be numbered as follows amongst others. First of all the piece of reckless driving which might be described in the vernacular as a "one off", a momentary reckless error of judgment;	briefly dozing off at the wheel (see R v Beeby (1983) 5 Cr App R(S) 56, to which reference was made in the course of argument);	sometimes failing to notice a
pedestrian on a crossing.	Next, a good driving record will serve

the defendant in good stead.	Good character generally will also serve him in good stead.	A plea of guilty will always be taken into account by the sentencing court in favour of the defendant. Sometimes the effect on the defendant, if he is genuinely remorseful, if he is genuinely shocked.'.	These cases are referred to merely to illustrate that there is no special rule limiting the extent to which a sentencing judge may take good character into account in drink driving cases.

The question whether it is correct to make a bond subject to a condition for good behaviour for less than the unexpired part of the term of imprisonment has been the subject of judicial comment.	In R v.	Brusch (1986) 11 FCR 582,
the Full Federal Court had occasion to discuss the operation of the Criminal Law (Conditional Release of Offenders) Act.
After dealing with the matters requiring a decision in that case, the court said:

'Incidentally when, as in this case, conditional release is subject to the offender entering into a bond to be of good behaviour for a period less than the balance of the head sentence to be served, it would seem that once the period of the bond has passed, there is no means by which an offender may be returned to prison if he ceases to be of good behaviour during the remaining period.	In our view, it is undesirable for the Court to lose control of the situation in that way.'

I pause before adopting this as a correct statement of law. In the first place, section 5(1)(b) imposes no such restriction in terms. The section refers to 'such period as the court

specifies', without qualification.	There being no statutory limitation, in order to be justified in importing one, I would expect a line of authority, or something in the logic of the provision that would make it compelling to import such a restriction.	I say this with some trepidation in view of the eminence of those who sat on Brusch. However, it remains
the duty of this court not to adopt uncritically a statement that did not, as far as one can see, form part of the ratio decidendi of that case and which was not supported by reference to authority.	It is common experience for persons to be subject to suspended sentences that remain wholly executory even to the very end of the bond.	It seems not unreasonable to me that a judge should leave a person in peril of further imprisonment for a limited period only.	It means, simply, that during the period of the bond the offender remains in peril;	after its expiry, he becomes absolutely free.

In concluding these reasons, I reiterate what was said by O'Leary CJ in R v.	Yates (Court of Criminal Appeal, unreported, 11 December 1986).	In particular his affirmation of the principles enunciated in R v. Tait and Bartley 24 ALR
473 at 476, quoted in Yates.	I am far from satisfied
that any error of the kind referred to on the part of the learned sentencing judge has been demonstrated.

Maurice J. has expressed the view concerning what would have been the effect of the decision in Baumer (supra) if

it were applicable here.	I refer also to the remarks of Muirhead J concerning the future effects of Baumer.	I
would prefer to reserve, till I am called upon to pass sentence in an appropriate case, any decision whether an effect of Baumer would be to require a sentence of a more severe order than that imposed by the sentencing judge in the case at bar.

Since whether I regard the sentence passed as too light or not is not a question relevant to the determination of this appeal, I expressly refrain from commenting on that matter.

I would dismiss the appeal.

MAURICE J:	I agree with the orders proposed by Muirhead J.	In my view when a sentence is partially suspended the period of the good behaviour bond ought not be less than the period of the balance of the head sentence.	Possibly in some exceptional circumstances this rule could be properly broken.	Just what those circumstances might be need not be debated here.	The learned sentencing Judge did not give any specific reasons for applying a shorter period in this instance, nor has any occurred to me.

Whilst it may be that because of the nature of the offence (dangerous driving causing death when intoxicated) and, in particular, the all too frequently occurring consequences by reference to which the penalty is enlarged, general deterrence looms as an important aspect of the Court's approach to sentencing, leaving not the same scope for taking personal factors into account when fixing the head sentence, I do not think this Court ought to follow suggestions made in some of the judgments we were referred to, the effect of which was that virtually no allowance should be made for personal factors in this part of the sentencing exercise (cf. Buttsworth (1983), NSWLR 658 at 690).

I wish to make clear that the head sentence confirmed in this instance is not a precedent that can be relied upon in the future.	The sentence was imposed before this Court handed down

its decision in Baumer;	no application was made by the Crown to the sentencing Judge to load the sentence because of the prisoner's drunkenness.	On the contrary, the Crown invited his Honour to consider ordering conditional release, a course inconsistent with the length of confinement to which Baumer points in cases of this kind.

Indeed, while Baumer stands the Court is required to perform the hopelessly artificial exercise of assessing culpability independently of intoxication, and then adding up to four years because of the presence of alcohol.	On this approach, there must be a significant element of doubling up in determining the degree of criminality.	Such a result is not dictated by the use of the word "further" in s.154(4);	that can be readily explained because the four years of imprisonment is to be added to one or other of the periods specified in the first three subsections.	Sub-sections (2) and (3) are not add-on provisions, they provide the maximum penalty where grievous harm (sub.s(2)) or death (sub.s.(3)) result.	Still, the majority decision in Baumer requires the application of an additional penalty where alcohol is a feature, to be carried out as a separate exercise.

Fortunately for the prisoner, the Crown ended up conceding that it was inappropriate for us to have regard to that decision on this appeal.	Fairness demanded this concession be made.	The sentence of four years considered by the learned sentencing Judge as an appropriate starting point was in line

with the range of penalties previously established in the Supreme Court for conduct of this kind involving the consequence which it did.	It is also in line with the penalties handed down around Australia.	However, had Baumer been applicable, the appropriate starting point - what Nader J. refers to as the "objective sentence" - would have been nine or ten years and the minimum time to be served, as reflected in the non-parole period specified, would have had to have borne some relation to that head sentence.

MUIRHEAD AJ:	This is a Crown appeal against a sentence imposed on the respondent on 24th March last.	The respondent was charged on indictment for that on
18th September 1986, he did a dangerous  act in that he drove a vehicle under the influence of alcohol and collided with a bicycle, thereby causing the death of the rider.	The charge was laid under Section 154 (1), (3) and (4) of the Criminal Code.	The first sub-section provides a maximum penalty of 5 years imprisonment.	Sub-section (3) provides that if death is caused, the defendant is liable to a penalty of 10 years and sub-section (4) provides that if the defendant is under the influence of an intoxicating substance "he is liable to further imprisonment for
4 years".	The maximum penalty provided under the circumstances was 14 years imprisonment.	The facts are set out in the reasons of Nader J. and I will not repeat them. It was a most serious case.

The respondent pleaded guilty and submissions on penalty were made both by counsel for the Crown and the respondent.	Character evidence was called on behalf of the respondent.	This took place on 3rd March 1987 and the respondent was remanded in custody.	On 24th March His Honour imposed a sentence of imprisonment of 3 years and directed that such sentence should run from 3rd March.	He directed, pursuant to Section 5(1)(b) of the Criminal Law Conditional Release of Offenders Act that the respondent should be released after serving 9 months of that sentence, provided he entered into a recognizance in the sum of
$1,000, to be of good behaviour for a period of 12 calendar months, well before the expiration of the 3 year sentence. He further directed that the respondent should abstain from alcohol, liquor or a drug (save as medically prescribed) for that 12 month period.	The respondent was disqualified from holding or obtaining a driver's licence for a period of
4 years.

The grounds of appeal are that the learned sentencing judge erred:

"1.		in imposing a head sentence which in all the circumstances is manifestly inadequate;

2.	in ordering the respondent's conditional release after the serving of 9 months which in all the circumstances is manifestly inadequate;	and

3.		in ordering that the period of good behaviour be for a period less than the balance of the head sentence."

The principles to be applied in appeals relating to sentence, both as to severity or inadequacy are now well established.	See R v. Tait and Bartley (1979) 24 ALR 473@
476.	A Crown appeal against leniency requires most careful consideration because of what is sometimes referred to as the 'double jeopardy principle'.	"Crown appeals have been described as cutting across time honoured concepts of criminal administration" (per Barwick CJ, Peel v. R (1971)
125 CLR 447 @   452;	(1972) ALR 231 at 233.	A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J. Whittaker  v. R, supra at 284). "The freedom beyond the sentence imposed is, for the second time in jeopardy, as a Crown appeal against sentence.	It
was first in jeopardy before the sentencing court" (Tait v. Bartley (supra)).

It is also trite law that an appellate court will not increase a sentence merely because its members believe they would have imposed a more severe sentence.	The judicial discretion upon sentence is a wide one and rightly so.	What must be established, before an appeal based on inadequacy of sentence is allowed, is not that it is lower than average, or merciful, but plainly wrong upon established principles.	In determining such an appeal an appellate court must in the ordinary case keep an eye on the statute, the circumstances of the offence, the prevalence of the offence, and the background and character of the

offender.	In assessing the last mentioned consideration, the Trial Judge has a tremendous advantage, especially if he is considering conditional release as a prelude to rehabilitation.

And there is another factor which stems from my experience.	A prisoner who has been treated with leniency by a judge who he has seen and heard and before whom he has seen his case argued, will inevitably labour under a sense of grievance if conditional release is replaced by custody or postponed by order of a tribunal composed, as far as he is concerned, by faceless men.	Such a grievance is understandable.	From the prisoner's point of view, justice has not been seen to be done, although the community of course may have other views.

In my opinion, and it is one I have always held, the true interests of justice require extreme care before sentences are increased.	See Valentine and Garvie (1980) 2 A.Crim.R  170@ 174@ 175.		In this Territory the Crown has an appeal as of right to this Court on a question of sentence (Section 414(c) Criminal Code).	The principles relating to such appeals have recently been enunciated by this Court in R v. Yates (unreported, 11th December 1986) when reference was made to the observations of Barwick CJ. in Griffiths v. The Queen 137 CLR 293@ 310 when he suggested they should be rare and utilized only "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons".

The sentence in question was imposed before the judgment of this Court in Baumer v. R (unreported, 3rd July 1987) when Section 154 was examined and I do not wish to add much to my observations there.	The framework of Section 154 is clearly an expression of the legislative intent, of comparatively recent origin, and is drafted to ensure that intoxication of offenders is an aggravating rather than an alleviating factor upon sentence.	It does carry with it the risk that intoxication may fall for consideration as an element of the danger of the act or omission under 154(1) and further consideration as a circumstance under ss (4).
As my brother Maurice J. commented during argument in the present case it may have been more appropriate to have referred to the respondent's defective lookout and lack of proper control as the dangerous elements in the
indictment - which was abundantly clear - leaving ss (4) for separate consideration.	I agree with this, but there may be cases where the fact that an accused is under the influence of liquor alone turns a legitimate or lawful act into a dangerous act.	But it is important to ensure that the sentencing judge does not, as it were, double up on penalty because the accused was drunk.

The Crown assisted His Honour with references to other relevant sentences including Baumer (8 years imprisonment) which the majority of this Court did not disturb on appeal.	The Crown made reference in referring to that case to the "shocking antecedents" of the prisoner

there and it would be wrong, I think, to examine the present sentence in the light of remarks subsequently made on that appeal.	In the future Baumer will have to be kept well in mind.

His Honour stated that he would have imposed a sentence of 4 years "but for the factors in mitigation" which went only to age, previous character and remorse. Speaking for myself, I consider the question of penalty under 154(1) must be objective, and it does not matter whether the offender who perpetrates the crime - and I use that word deliberately - is a rogue or a previously upright citizen.	Repeatedly, in sentencing offenders in this type of case, references have been made to the fact that one is likely to be dealing with persons of previous good character.		The respondent's manner of driving certainly placed this matter into the most serious category and merited a substantial prison sentence.	The powers of fixing non-parole periods and ordering conditional release then fall for consideration and may be utilized when the antecedents of the prisoner merit.	Here the head sentence was reduced by reason of these matters and the order for his conditional release after he had served 9 months was made for the same reasons.	But it was not much below the average sentence imposed under this section at the time of sentence. I have hesitated in this matter, but as I have determined that His Honour's decision that he should utilize his powers of conditional release should not, in principle, be set aside, it follows that if the head sentence was increased

and conditional release applied pro rata, the result would serve only to prolong the respondent's much deserved incarceration for some months.	Bearing in mind that this took place before Baumer v. R (supra), I do not think it can be said that the sentence was manifestly inadequate.

I consider His Honour was in error in providing that the recognizance should remain in force for only
12 months.	I would allow the appeal to this extent.

Clearly, the appellant's past character indicates that his rehabilitation has good prospects of success, but I consider he should remain subject to the sanction of the sentence and to supervision for a period which more closely coincides with the expiration of the head sentence.	I adopt, with respect, the view of the Federal Court of Australia expressed in R v. Brusch 11 FCR 582@ p.590.	I therefore would allow the appeal on ground 3, set aside the order of the sentencing judge on this aspect and direct that the respondent should be required to enter into a recognizance in the sum of $1,000 to be of good behaviour for a period of
2 years from the date of his release.	In my view it should be a condition of the bond that for a period of 6 months, from that date, he should be under the supervision of a probation officer appointed by the Director of Correctional Services, whose directions as to residence and employment he should obey.	I do not know why His Honour ordered abstention from alcohol or drugs as there is no evidence to suggest they were a continuing problem.		But I would not interfere with the exercise of his discretion on this

aspect, save as to the period for which it should apply, and I would direct that during the period of the recognizance the respondent should abstain from alcohol and other drugs, save under medical prescription.

Supervision for a short period should ensure the respondent resumes life in society with a minimum of problems.

Otherwise, I consider the appeal should be
dismissed.

I would add only this.	In the course of this appeal reference was made to people who drive as the respondent did on the evening of 18th September last as "not criminals in the ordinary sense".		In R. v. Calder (1987) 1 Qd.R. 348, Connolly J. in tracing the history of the legislation there in question referred to the past "reluctance of criminal juries to treat death and injury on the highway as involving what is conventionally regarded as criminal behaviour".	This is understandable as intent to kill or maim is not an ingredient and we are perhaps prone  to think in terms of "you today and me tomorrow".	And until fairly recent times this has, I think, explained the relatively low maximum penalties the legislatures prescribed and the relatively low penalties the courts have imposed.	I consider this thinking should be put to rest.	Those who cause death or injury by momentary inattention or inadvertence, by a failure to observe a traffic rule, will

generally be dealt with, if charged, in the courts of summary jurisdiction.	Section 154(1) specifically treats an offence under the section as a 'crime'.	The offences are dealt with in the criminal courts, the appeals are heard in courts of criminal appeal.	A criminal is a person "guilty or convicted of a crime" and a crime is "an act
committed - injurious to the public welfare, for which

punishment is prescribed by law." Dictionary).

(The Macquarie

Traditional concepts of crime perhaps have their roots in the days when there were no motor cars, and people were executed for burning haystacks and transported for poaching.	It is different now.	But hundreds of Australians die each year in road accidents and an unacceptable number under the wheels of vehicles driven by those whose faculties are impaired by alcohol, this despite continuing efforts to educate the public of the dangerous association between alcohol and driving.		The law accepts the doctrine of general deterrence.	The Territory legislature has sought to provide significant maximum penalties and whatever one may think of the statutory provision in question, or its structure, its purpose and its message to the courts are clear.	People convicted of killing and maiming others on public roads through drunken carelessness, who cause such grief disruption and economic loss in the community are, in my view, aptly termed criminal in the full sense of the word.

SCHEDULE OF SENTENCES IN DESCENDING ORDER OF
BLOOD ALCOHOL CONCENTRATION

NO	ACCUSED	BAC	CASE	SENTENCE	MAXIMUM
SUMMARY	PENALTY
PAGE NO

2.	Ireland	.24%		3 years
9 months	14	years	
3.	Narjic	.23%	7	4½ years
2 years	11	years	
4.	Waters	.21%	10	4½ years	14	years	

1.	Baumer		Not known	11	8 years	11 years decamped		NPP 4 years

GBB after

GBB after

NPP 2 years
Goodwin	Not known	3	4 years	14 years
NPP 2 years
Durilla	.21%	12	4 years	14 years
GBB after
18 months

Collishaw Not known	1	4 years	11 years decamped		NPP 16 months
Lewis	.199%	6	3 years	14 years
GBB after
12 months
Ludeman	.13%	13	3 years	14 years
GBB after
10 months

Sutherland		Not	5	18 months	10 years alleged		NPP 9 months
Jones	Not known	8	12 months	14 years
NPP 6 months '

'ACCUSED: SCC: OFFENCE:

JUDGE: PLEA:
DATE OF SENTENCE:

SENTENCE:

BAC: FACTS:

Lloyd John Robert Collishaw 245-7/1984
(1)	Section 154(1),(2) and (4). Max penalty 11 years;
(2)	Section 102 (read with Section 277(2)) attempting to destroy evidence.	Max penalty 3 years.
Muirhead J Guilty

18 December 1984
4 years hard labour;
9 months hard labour to be served cumulatively.
NPP 16 months
MDL disqualified for 5 years.
Not known but intoxication admitted.

Went to hotel after work, drank large amounts of alcohol and smoked considerable amount of cannabis.	On leaving hotel was intoxicated but BAC not known.	Entered car with four passengers.	Drove on wrong side of Lee Point Road.	Being confronted with oncoming head lights traversed the centre tree planted traffic island and collided with a motorbike carrying two girls travelling in same direction as accused but on correct side of road.	Continued on without stopping.	Then with help of friends, took car into the bush and attempted to destroy it.

Both girls survived, one sustaining severe multiple injuries resulting in permanent disabilities cosmetic and otherwise (grievous harm).

Prisoner aged 25.	No relevant priors.	Good school/work record.	Genuinely remorseful.
REMARKS:

Court could not see fit to make an order for conditional release as driving presented a shocking threat to members of the community and the efforts to disguise the

car and prisoners silence as to his involvement were prolonged.

However in fixing non parole period, full allowance made for past character.

ACCUSED:
SCC: OFFENCE:

JUDGE:

PLEA:
DATE OF SENTENCE: SENTENCE:

Peter Anthony GOODWIN 42/1985
Section 154(1),(3) and (4).	Max
penalty 14 years Muirhead J Guilty
16 April 1985
4 years hard labour. NPP 2 years.
MDL disqualified for 7 years.

BAC:	Not Known.
participate blood test.

Prisoner declined to in breath analysis or
Intoxication admitted.

FACTS:

After a night of drinking, prisoner left Casino and drove north along Gilruth Ave towards junction of Goyder Road.	Manner of executing left hand turn from Casino into Gilruth Avenue caused driver of a north bound vehicle to apply his brakes.	Prisoner did not travel at a high rate of speed but manner of driving attracted attention.	Victim was stationary on motorbike close to median strip correctly positioned waiting to make right hand turn.	Vehicle struck motor bike from behind.
Intersection well lit.

Prisoner stopped car and alighted.	Seen by bystanders to be obviously drunk.	Refused breath test/blood test.
Pleaded guilty at conclusion of committal hearing.	Aged
44.	No relevant priers.	Genuinely remorseful and appalled by his conduct.

REMARKS:

Community expects the courts to impose penalties which may be seen as a general deterrent and which may at

least play some part in controlling, if not minimising the road toll which takes so many lives, particularly young lives and brings so much grief and bewilderment in its wake.

That night prisoner truly a menace on the roads. Nothing in facts can alleviate seriousness of the offence, which is reflected in the high penalties
provided for in the Act.	This social legislation is for the protection of the community.	Therefore prior good character, whilst relevant, does not assume the importance it may in other areas.		Experience shows that people otherwise of good character from time to time commit these offences.

ACCUSED:
SCC: OFFENCE:

JUDGE:
PLEA:
DATE OF SENTENCE: SENTENCE:

BAC: FACTS:

Glenn David SUTHERLAND 272/1985
Section 154(1) and (3).	Max penalty
10 years. Rice J Guilty
12 November 1985
18 months imprisonment. NPP 9 months.
MDL disqualified for 3 years.
Intoxication not alleged.

Prisoner drove overloaded mini-van with 4 passengers down the Stuart Highway.	Approached another vehicle travelling in same direction from behind.	Prisoner accelerated to an estimated speed of approximately 125 km/h and about 20 metres from rear of vehicle swerved to overtake it.	Lost control of the van which rolled several times, killing passenger in prisoner's car.
Prior conviction for exceeding .08% Brisbane 1980 - 0.11%.
Aged 34 years. Good work history.

REMARKS:

Prisoner's driving was grossly negligent.

ACCUSED:
sec:
OFFENCE:

JUDGE:
PLEA:
DATE OF SENTENCE: SENTENCE:

BAC: FACTS:

Garry James LEWIS 370/1985
Section 154(1),(3) and (4).	Max
penalty 14 years
Kearney J Guilty
22 November 1985
3 years.
To be released after 12 months on 2 year good behaviour bond in sum of
$1,000.00.
MDL Disqualified for 5 years.
.199%

Prisoner and victim drinking in hotel for five hours. Both drunk.		Prisoner rode motorcycle down Dick Ward Drive at very high speed with victim riding pillion passenger.	Failed to take a right hand curve in road and ran off road.	Victim propelled head on into base of tree - died instantly.	Prisoner also badly injured and hospitalized for a month.

Prisoner aged 26 years.	Had 24 traffic offences including two convictions for exceed 0.08% (readings of
.130%).	Unlicensed at time of present offence. Otherwise good character.	Displayed genuine remorse.
REMARKS:

Displayed limited concern over years for safety of fellow citizens.	Menace on the road.	Facts of this case indicate it is an offence which intrinsically requires severe punishment.	Took into account, drunkenness of victim, fact that he was prisoners friend, fact that prisoner himself was badly injured, fact that this was not a case of prisoner killing, by his own drunken recklessness, some innocent person.	The

victim through his drunkenness was to a considerable extent the cause of his own death.

ACCUSED:
sec:
OFFENCE:

JUDGE:
PLEA:
DATE OF SENTENCE: SENTENCE:

BAC: FACTS:

Barney NARJIC 277/1985
Section 154(1),(2) and (4).	Max
penalty 11 years.
Nader J Guilty
7 February 1986
4½ years.
To be released after 2 years on good behaviour bond for balance of term. Bond subject to residential condition.	MDL disqualified for 7 years.
.230%

Prisoner (Aboriginal) drove inbound along Stuart Highway in day time.	Although situated in middle lane, veered from left to right, at times hitting the kerb of median strip.	Vehicle veered abruptly to the left, colliding with two vehicles (one in tow) parked safely by the side of the road on left hand side.	Prisoner claims he fell asleep.

Victim standing between two cars was hit by car and then dragged some distance.	His right leg was severed below knee and left shoulder broken.
Prisoner had prior convictions mostly alcohol related. REMARKS:
Clearly was an alcoholic.	Plea of guilty taken in account - saved time and money and probably exhibited

some contrition.	This kind of offence prevalent in NT and can not be tolerated.

ACCUSED
sec:
OFFENCE:

JUDGE:
PLEA:

DATE OF SENTENCE: SENTENCE:

Steven JONES 82/1986
Section 154(1),(3) and (4).
penalty 14 years.
Kearney J Guilty
3 April 1986
12 months. NPP 6 months.
MDL disqualified for 3 years.

Max

BAC: FACTS:

Not known - Intoxication admitted.

Prisoner (Aboriginal) had drunk approximately 1 dozen cans of beer at Timber Creek Hotel and then returned to camp.	After argument with his father, he drove his father's vehicle around the camp, doing 'wheelies'.
Then drove the vehicle towards his father's house outside which the victim a 62 year old man was asleep on camp bed.	The car struck the bed and pushed it against wall of the house crushing victim.	Prisoner claims brakes failed - kept driving until he collided with a tree.

Prisoner aged 24.	No relevant priors.	Good work/school record.	Obviously remorseful.
REMARKS:

Major factor in sentencing offenders under Section 154 is deterrence i.e. to reduce carnage on roads.
Frequently persons convicted of an offence of this type are persons of good character, but the fact that a man has good character is not given the usual weight in mitigation of sentence because of the need for general deterrence.

However this not usual dangerous driving case i.e. driving occurred in deserted area, not on public road, not same degree of menace to public.	Not in same

category of seriousness.	Not a case involving carnage on roads.

Sentence discounted because of guilty plea - avoids costs. Remorse evidence by abstention from alcohol after accident.

ACCUSED:
SCC: OFFENCE:

JUDGE:
PLEA:
DATE OF SENTENCE: SENTENCE:

BAC: FACTS:

Johnny WATERS 480/1985
Section 154(1),(3) and (4).	Max
penalty 14 years. O'Leary CJ
Guilty
10 October 1986

4 years 6 months. NPP 2 years.
MLD disqualified 7 years
.210%

Prisoner (Aboriginal) driving north along Stuart Highway, apparently fell asleep at wheel.	Collided head-on with car travelling in opposite direction. Victim was front seat passenger in other vehicle.

Prisoner aged 26.	Had one relevant prior conviction for unlawful use of a motor vehicle, for which he was on a good behaviour bond at time of accident.	Otherwise, generally good character.	Prisoner had alcohol problem.
REMARKS:

Credit given for remorse.	However very serious offence. Prisoner's driving presented the gravest threat to safety of other road users.		Nothing to mitigate seriousness of offence.	Conduct of that kind clearly calls for a sentence which one would hope will help deter the prisoner and others from behaving in that way in the future.

ACCUSED:
sec:
OFFENCE:

JUDGE:
PLEA:

DATE OF SENTENCE: SENTENCE:

BAC: FACTS:

John Paul BAUMER 463 of 1986
Section 154(1),(2) and (4).	Max
penalty 11 years;
Asche J Guilty
26 February 1987
8 years
NPP 4 years.
MDL disqualified  for 20 years. Not known - Intoxication admitted.

Prisoner drove his vehicle inbound upon the outbound lane at Stuart Highway near Palmerston bypass.	Crashed head on into incoming vehicle causing grievous harm to child male passenger.	Prisoner left scene of accident and not located by Police until next day.

Prisoner under the influence of alcohol.	Prisoner observed to be intoxicated by witness just prior to accident.

Prisoner had shocking record with numerous alcohol related driving convictions. (2 x exceed .08%;	3 x drive manner dangerous;	2 x DUI;	3 x failing to stop;
7 x drive unlicensed or drive disqualified)

Prisoner had alcohol problem.	Married with 3 children. Showed remorse.

REMARKS:

Prisoner regarded as a serious threat to other road users.	Offence regarded with utmost seriousness.
History of the offence and of the offender merited almost the maximum sentence.

ACCUSED:
sec:
OFFENCE:

JUDGE: PLEA:
DATE OF SENTENCE SENTENCE:

BAC: FACTS:

Gregory DURILLA 17 of 1987
Section 154(1) (3) & (4) Maximum penalty 14 years
Asche J Guilty
26 March 1987
4 years.
To be released after serving 18 - gbb for 3 years - $500.	Conditioned that prisoner abstain from drinking alcoholic liquor.
MDL disqualified 4 years.
.21%

Prisoner (Aboriginal) drank at Alyangula Social Club (Groote Eylandt) and was very much under the influence. Prisoner drove a truck taking other men back to settlement.	Truck rolled on bend in road - speeding.

Victim passenger died of head injuries. BAC of prisoner some time after accident .052%. BAC at time of accident calculated at .21%.

Prisoner had 2 prior convictions for exceed .08% and one for refuse BAS.

Prisoner seemed to have problem with alcohol. REMARKS:
Driving under influence regarded seriously by Courts.

ACCUSED:
sec:
OFFENCE:

David Geoffrey LUDEMAN 323 of 1986
Section 154(1),(3) and (4) Maximum penalty 14 years

•
JUDGE:
PLEA:
DATE OF SENTENCE: SENTENCE:

BAC: FACTS:

Kearney J Guilty
20 May 1987
3 years
To be released after 10 months - GBB for 3 years - $2,000.00.
Conditioned that prisoner refrain from consuming alcoholic liquor and that he report to Department of Correctional Services and undertake any alcohol rehabilitation course as directed
MDL disqualified 4 years.
.130%

Prisoner consumed about 9 cans of beer from about 11.00am.		At about 4.45 pm prisoner drove along Stuart Highway from Berry Springs to Darwin.	Prisoner overtook some vehicles and then collided with the right rear of a vehicle travelling in same direction on its correct side of road.	This vehicle shunted off road and rolled over twice.	Victim, a baby being held by its mother thrown from vehicle.

Prisoner drove to Noonamah Store, called Ambulance and remained until Police arrived.

Prisoner aged 25.	Good work record.	Had moderate to severe alcohol dependence.	Expressed genuine remorse. Prisoner expressed desire to give up drinking habits.

Two prior convictions in Western Australia:- 1980 - exceed .08% - 1984 drive unlicensed.

Prisoner had been in motor vehicle accident as passenger a week before this accident and had received knock on head and suffered concussion resulting in dizzy spells.

REMARKS:
Evidence as to good character was accepted.

The prime object of punishment is to deter drinking drivers.	Frequently people who come before the courts on this charge are people of good character and therefore the credit otherwise given for good character in other cases cannot be given in cases of this kind.

The primary object of punishment is deterrence so as to try to reduce the carnage on the roads.

Punishments being imposed for this offence have been getting heavier. '