PARTIES:	GEORGE, Adrian

V

RENNIE, Robert
TITLE OF COURT:	SUPREME COURT (NT)
JURISDICTION:	SUPREME COURT (NT)
FILE NO:	113 of 1992
DELIVERED:	Darwin 18 December 1992
HEARING DATE:	9 December 1992
JUDGMENT OF:	Martin J.

CATCHWORDS:

Criminal Law and Procedure - Jurisdiction, practice and procedure - Judgment and punishment - Driving offences - "Tariff" - Past approach to sentencing
considered by magistrate to be too lenient - To be gradual increase in penalties imposed -
Lowe v The Queen (1984) 154 CLR 606, at 610, followed.
Clair v Brough (1985) 37 NTR 11, considered.
Ambrose v Sandford (1989) 42 A Crim R 324, considered.
Breed v Pryce (1985) 36 NTR 23, at 33, applied.
Baumer (1989) 40 A Crim R 74, at 79, applied.
D A Thomas "Principles of Sentencing"
Hines, Judicial Discretion in Sentencing by Judges and Magistrates, par5.7
Ruby, Sentencing, 3rd Edition, at 389, 391
Criminal Law and Procedure - Jurisdiction, practice and procedure - Judgment and punishment - driving offences - "Tariff" - exception to - Mistaken consideration of circumstances of aggravation - "unjustifiable discrepancy"-;

Lowe v The Queen (1984) 154 CLR 606, at 610, followed. Ambrose v Sandford Pty Ltd (1989) 42 A Crim R 324, referred to.
Clair v Brough (1985) 37 NTR 11, referred to.
Criminal Law and Procedure - Jurisdiction,  practice and procedure - Judgment and punishment - imprisonment in default of payment of fine imposed without time to pay - Consideration of imposition of Community Service Order in lieu of payment of fine -

Criminal Law (Conditional Release of Offenders) Act, s21A
Fraser (1985) 20 A Crim R 4, referred to.

REPRESENTATION:
Counsel:
Applicant: J B Lawrence Respondent: C Delaney
Solicitors:
Applicant: NAALAS
Respondent: DPP

Judgment category classification: B Court Computer Code:
Judgment ID Number mar920032 Number of pages: 13

DISTRIBUTION:	LOCAL

mar920032
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.	113 of 1992

BETWEEN: ADRIAN GEORGE
Appellant

AND:
ROBERT RENNIE
Respondent

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered·18 December 1992)

I

This is an appeal against sentence imposed upon the appellant in the Court of summary Jurisdiction at Darwin on 14 April 1992.	The grounds of appeal are that the sentence is manifestly excessive and that the learned Magistrate mistook the facts as to the commission of the offence.	It seems that the appellant was in two minds as to whether to proceed with the appeal or not, and that that may have been a major contributing factor to the length of time it has taken for it to come on before this Court.

The appellant was sentenced to 6 month's imprisonment, to be suspended after 2 months, upon his entering into a bond in his own recognizance in the sum of

$500 to be of good behaviour for 12 months upon being convicted of driving a motor vehicle on a public street, the Arnhem Highway, while having a concentration of alcohol in his blood in excess of 80 milligrams of alcohol per 100 millilitres of blood, to wit, 240 milligrams of alcohol per
100 millilitres of blood.

The appellant pleaded guilty to the charge and the prosecutor then put the facts as follows:

"At about 11.30 am on Friday 3 April 1992 the defendant left Darwin driving a white Toyota Corolla station wagon bearing NT number plate, 263-239, along with three other friends.	Along
the way they purchased some Victorian Bitter beer. The defendant drank about half a carton of the beer by the time they had arrived at Jabiru.
At about one kilometre before reaching Jabiru the
defendant was apprehended by	police on the Arnhem
Highway.	When asked to produce a current licence
the defendant stated that he didn't have one. When asked if the vehicle was registered, because the vehicle was displaying an expired label, the defendant said that he didn't know as the vehicle wasn't his.

Police also observed that the defendant was unsteady on his feet, his eyes were bloodshot and his speech slurred.

As a result the defendant was submitted to a roadside breath test which indicated a positive result.	The defendant was tqen conveyed to the Jabiru Police station and underwent a full breath analysis which gave him a reading of .240.	A check of police records revealed that the defendant had never held a driver's licence and that the vehicle's registration expired on
11 February 1992.	The defendant was also found to have outstanding warrants.	He was later charged and bailed.

When asked for a reason for his intoxication and driving without a licence he said 'My mate asked me to drive for him'.	At the time of the offence

the Arnhem Highway was a public highway open to and used by the public.	Weather was fine and traffic light".

His Worship intervened and enquired as to the basis for saying that the appellant had consumed half a carton (12 cans), and it was established that he had not said as much nor was there anything to show how that allegation came to be made, but on being asked whether the facts as outlined were admitted, counsel for the appellant said: "Yes Your Worship".	Later during the course of the plea the appellant's counsel informed the Court that his client was originally a passenger in the car travelling to Jabiru and took over the driving at about the Mary River, which it seems was agreed was about half way along the journey.	He did that because the original driver was drunk and in his belief he, the appellant, was not.	He had two prior convictions for similar offences.	The first in Westrn Australia in 1984, which his Worship indicated he would not take into account, but there was another in 1990 in that State for which the appellant was convicted, fined $600 and disqualified from driving for 6 months.

,
The maximum penalty for the offence in this Territory is $1,000 or imprisonment for 12 months.	The Act provides for a penalty of $2,000 or imprisonment for 12 months for a second or subsequent offence, but the convictions in Western Australia do not come into that reckoning, s49 of the Traffic Act providing that a reference

to a second or subsequent offence shall be read as a reference to an offence under the Act.	His Worship, correctly, did not take those convictions in Western Australia into account so as to treat the matter before him as a second or subsequent offence.	The appellant's counsel, addressing the Court said: "Apart from that (referring to the previous convictions in Western Australia) he is 28 years of age, and I am not going to say much because by and large they're tariff offences".	To which his Worship responded:

"Well except that he's driving on a major highway drinking along the way getting comprehensively inebriated with passengers and putting other road users at very considerable risk indeed.	He's on the Arnhem Highway •.• Drinking anything up to half a carton and getting himself blind drunk and driving a car .•.. I mean, clearly if you look at the reading he's become extremely intoxicated and one has to extrapolate from that".

His Worship later enquired of counsel for the appellant as to whether he wished to address on the question of general and specific deterrence, referred to the possibility of a sentence of imprisonment when a man is
drinking as he drives along the Arnhem Highway and
,
continued: "He's drunk, he's at the wheel, he's continuing to drink, he's got passengers and he's a menace on the road".	Having heard the submissions, his Worship proceeded to admonish the appellant for driving whilst drinking, pointing to the danger of people, including friends, family and passengers, being killed on the roads as a result of

such behaviour.	He reasserted that the accused was a menace on the road: "It's lucky you didn't hurt anybody or kill anybody or have an accident; that's just luck when you're that drunk and you drive that fast".	He continued:

"Just because somebody else is drunk and can't drive it's no excuse at all to then drive yourself.	You should stop and wait.	The courts say this every day, I don't think anybody ever listens to it, but there's only one way to encourage people to listen and that's to impose sentences which mean what they say and which make it pretty clear to people like you that if you do this sort of thing, it's one of the most dangerous things you can do.	One of the most dangerous things you can do in the book.

For that reason there must be a sentence of imprisonment in my view to try and stop you and stop other people from drink/driving in this way. That's one of the things the government in the Northern Territory has been trying to do for a long time is try and develop a greater consciousness about alcohol, the courts are trying to assist in that process and the law, of course - ultimately the law is there to try and protect other people from drunk drivers and to try and stop drink/drivers doing what you did.

There must be a sentence of imprisonment for those reasons. This is a bad case of drink/driving over a long distance."

He proceeded to impose the sentence already referred to and added: "Your licence is cancelled, you are disqualified for two years".

Nothing can be found in the agreed facts or discussion which took place between his Worship, counsel and . the	prosecutor which would indicate that the accused's
manner of driving was what caused him to be apprehended by

the police.	The speed at which the vehicle was travelling was never mentioned.	The distance over which the appellant had driven with that level of alcohol in his blood could not be safely inferred from the agreed facts.	The only inference to time is the departure from Darwin at 11.30am, the time of apprehension is not known.	Common sense and experience in other cases, however, dictate that it was reasonable to infer that a person driving a motor vehicle with a blood alcohol content of .240 poses a threat to cause harm and even death and thus can be a menace.

Unfortunately that	combination of circumstances is not uncommon.	Information placed before the Court on appeal shows that during the months of September, October, November and December this year clients of the North Australian Aboriginal Legal Aid Service alone suffered 39 convictions for driving whilst being in excess of the prescribed blood alcohol content of which ten exceeded that of the appellant, ranging from .241 up to .321.	Of the 39 offenders few were sentenced to imprisonment.	Karl Kollard who had three previous convictions in Western Australia, two
of which occurred in 1991, had a blood alcohol content of
;
.189 and was sentenced to imprisonment for 3 months; Mr Dudunga had a reading of .237, two prior convictions, and suffered the same penalty; Mr Gibson was sentenced to 9 month's imprisonment after being convicted upon a reading of·
.207, but he had six priors; Mr Knoll, whose reading was
.258 and who had a previous conviction in 1986, was

sentenced to 3 month's imprisonment.	Three were sentenced to perform community service work, two for 40 hours and one for 72 hours.	Two of them exceeded .240.	The remainder of the offenders with readings over .241 were fined sums ranging from $400 to $1,200, the highest in the case of a man who had two previous convictions for like offences and whose reading on the particular occasion was .293.
Mr Hunter, who had a previous conviction in Western Australia in 1992 and whose reading was .223, was fined
$800.

His Worship did not have the benefit of all that information in the form in which was presented to this Court, but nevertheless, as an experienced Magistrate who undoubtedly would have dealt with a number of matters such as this, he could be expected to have an understanding of the general range of penalties imposed for this type of offence.	The information available to this Court does not disclose where the offenders were driving, the distance over which they had driven prior to apprehension, whether they were carrying passengers, nor the many other factors which make it dangerous to place too much reliance upon information such as was made available:	Nevertheless, it does indicate that except in rare cases, persons with blood alcohol readings around and in excess of that making up this offence suffer monetary penalties.	His Worship undoubtedly felt that the circumstances of this case amount to an exception to what was referred to as "tariff offences", he

paying particular regard to the driving on a major highway, drinking along the way to the extent of producing .the blood alcohol level involved, carrying passengers and putting others at considerable risk.	He was right to take all those matters into account as aggravating the nature of the offence.	Obviously the further a person travels whilst inebriated, the greater the risk of harm; the higher the blood alcohol level, the greater again is the risk; driving in such a condition with passengers on board enhances the prospect of some person being put in grave danger and suffering bodily injury at least	The person who was originally driving the car clearly recognised that, but the appellant did not.	On the other hand, his Worship proceeded to impose the sentence complained of taking into account considerations which were not open upon the facts placed before him.

In his book "Principles of Sentencing" the author, D A Thomas, tells us that the use of the term "tariff" dates back to at least 1876.	Just what precise meaning it has today in a Court of Summary Jurisdiction in the Northern
Territory is unclear.	The submission of counsel for the
I
appellant that this was a tariff offence and his Warship's response that this case presented an exception, indicates that they each had in mind that the tariff is seen as being a convenient way of referring to "the broad range of assessments of sentences judicially accepted as current at the time, based on contemporary concepts of desserts"

(Hines, Judicial Discretion in Sentencing by Judges and Magistrates, Barry Rose (Publishers) Ltd 1982 at para5.7). It is sometimes seen as being a measure by which a sentence may be fixed by reference to the offence, excluding consideration of cases where treatment of the offender is an issue (Ruby, Sentencing, 3rd Edition, Butterworths 1978 p389).	At p391, the learned author asserts that in "tariff" cases the Courts simply ascertain what would, for a typical case, be the range of sentence which is then used as a starting point for going into consideration of the other factors such as aggravation and mitigation peculiar to the particular offences or personal to the offender.	Reference was made to the system by Kearney J. in this jurisdiction in Ambrose v Sandford Pty Ltd (1989) 42 A Crim R 324, and Clair
v Brough (1985) 37 NTR 11.	It has to do with a uniform
approach to sentencing, but not uniform sentences.	In Lowe v The Queen (1984) 154 CLR 606 at 610 Mason J. said:

"Just as consistency in punishment - a reflection of the motion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administrat on of justice.	It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community".

It is to be noted that his Honour refers to "unjustifiable discrepancy" in sentencing, and what must be

looked for then is firstly a discrepancy.	If there is none, then the principle has not been offended.	If there is a discrepancy it is necessary to consider whether or not it is justifiable.	If so, the sentence can stand.	If not, then it must be quashed and the appropriate sentence imposed.	In all this the discretion of the sentencing Court must be firmly kept in mind.	Just because minds may differ it does not mean that the discretion has miscarried.

His Worship seems to have been particularly concerned with two basic circumstances when fixing the penalty in this case.	The first was the circumstances of the offence itself in respect of which it seems he may have taken into account factors which were not open to him.	The second exhibits a sense of frustration that the efforts of the legislature and the courts to protect the community from drunk drivers had, in his view, not had the desired deterrent effect, either generally or individually.	It is inherent in what his Worship had to say on that account that imprisonment rather than monetary penalties were called for in appropriate cases of which this was one.	In that regard it is well to bear in mind what was said by his Honour Nader
J. in the well known Territory case co cerning disparity and sentencing, Breed v Pryce (1985) 36 NTR 23 at p33, where his Honour cautioned that if the view was taken that past penalties had been too light, the position should be corrected by an upward trend in penalties rather than by an abrupt increase.	His Honour was there referring to a

particular offence, but nevertheless, what he said is of general application, as to which see Baumer, a decision of the Court of Criminal Appeal (1989) 40 A Crim R 74, where his Honour applied what he had previously said in a more general way at p79.

To summarise, his Worship took into account factors which could not be found on the agreed facts or by inference arising from them.	To that extent alone the sentence imposed must be seen as being unfair.	The concerns expressed by his Worship as to the agreed facts going to the circumstances of the offence, that is, driving on the Arnhem Highway with passengers in the car whilst having a blood alcohol content of .240, are of course matters of grave concern.	The information provided by the appellant to this Court was not available to his Worship and, in any event, there is no information as to the circumstances in which those offences were committed beyond the blood alcohol reading of the offender.	If, as it appears his Worship considered, that an increase in the level of penalty for this type of offence committed in these circumstances was warranted, then the principles which call for a graduated increase have been offended.

His Worship's sentencing discretion miscarried.
Both grounds of appeal are made out.

There was no material before his Worship upon

which he could assess the appellant's means as part of the information to be taken into account with a view to fixing a fine, as to which see the extensive review of the authorities in Fraser (1985) 20 A Crim R 4 commencing at p7. It has long been considered that to impose a fine without granting time to pay, the effect of which would be that the person fined must forthwith be imprisoned in default of payment, is not a proper approach to sentencing.	Such a process can be not only unfair, but misleading and lead to abuse whereby an offender can be imprisoned, but on the face of the record only a fine was imposed.	The Parliament has recognised that depriving offenders of their liberty for failure to pay a fine may not only be harsh on the offender, but may also place an additional burden upon the prisons systems.	Thus, it has provided by s21A of the Criminal Law (Conditional Release of Offenders) Act that the Director of Correctional Services may make a community service order in respect of an offender who has been adjudged to pay a fine or who has been imprisoned upon default in. payment.		The prescribed number of hours of work fixed pursuant to s21B of the Act is eight hours for each $100 of the fine.		The Director is not to make any such order unless he is satisfied that the offender is a suitable person to perform approved work, and that arrangements have been or will be made for the offender to perform such work.	Further, such an order shall not be made unless the offender consents to the terms and conditions of the order.	Given that an offender always has the option of paying the fine, after

being given credit for hours worked, (s21C of the Act) it
seems that that scheme might well be borne in mind as a
possible outcome of the exercise of a discretion to impose a fine.	Perhaps that has been born in mind in other
cases.	The Court of Summary Jurisdiction would be in a better position to know whether the scheme is worthwhile and operates so as to achieve the appropriate objectives
of the sentencing process in each individual case.

The sentence must be quashed, but as this Court does not have sufficient information before it to determine what would be the appropriate sentence in substitution for that originally imposed, the matter must be remitted for further hearing before the Court of Summary Jurisdiction.

Order that the sentence imposed upon the appellant be quashed and that the case be remitted for further hearing before the Court of Summary Jurisdiction at Darwin.