PARTIES:	NELSON WINFRED

		v

		DONNA WALLACE

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE 
		NORTHERN TERRITORY
		EXERCISING TERRITORY
		JURISDICTION

FILE NO:	JA59 OF 1997 (9515985)

DELIVERED:	23 June 1998

HEARING DATES:	23 June 1998

JUDGMENT OF:	Kearney A/CJ

CATCHWORDS:

	APPEAL AND NEW TRIAL

Breach of condition of part suspended sentence – whether whole or part suspended sentence should have been restored – purposes of suspension – whether inadequate weight given by magistrate to no re-offending – significance of grounds of “inadequate weight” – whether unjust to restore suspended sentence – width of magistrate’s direction.

	Sentencing Act ss 43(5)(c), 43(5)(f), 130 (2)

	Wilson v Taylor (1997) 113 NTR 1, followed.
	House v The King (1936) 55 CLR 499, applied.
Fraser v The Queen (unreported, Supreme Court (NT), (Asche CJ), 7 December 1988), referred to.
	Stanitis v Higgins (1994) 72 A Crim R 445, distinguished.

REPRESENTATION:

Counsel:

	Appellant:	M. Hird
	Respondent:	J. Blokland

Solicitors:

	Appellant:	
	Respondent:	

Judgment category classification:	
Judgment ID Number:	kea98010
Number of pages:	9

kea98010

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

No. JA59 of 1997 (9515985)

		IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against an order by the Court of Summary Jurisdiction at Katherine restoring a part sentence held in suspense

BETWEEN:

		NELSON WINFRED
			Appellant

		AND:

		DONNA WALLACE
			Respondent

CORAM:	KEARNEY A/CJ

REASONS FOR DECISION

(Delivered 23 June 1998)

The appeal
	This is an appeal against an order made by the Court of Summary Jurisdiction at Katherine on 13 June 1997 in which, pursuant to s43(5)(c) and (7) of the Sentencing Act, the learned Magistrate restored a part sentence which had been held in suspense, and ordered the appellant to serve it.

	It is clear that the Sentencing Act applies in this case despite the fact that the sentencing in question was imposed before that Act was passed into law; see s130(2) of the Act and Wilson v Taylor (1997) 113 NTR 1. 

The facts
	The appellant had been sentenced to an effective term of 8 months imprisonment with effect from 23 August 1995, following his conviction for various offences.  The Court directed that he be released from prison after serving 2 months of that sentence, the service of the remaining 6 months being suspended on his entering into a Recognizance for a period of 18 months.

	The terms of the Recognizance required that the appellant be of good behaviour for a period of 18 months and comply with the following conditions:

	that for the first 12 months he be under the supervision of
Correctional Services and obey all reasonable directions as to residence, employment, associates and reporting; and that for the first 12 months he reside and remain at Costello Outstation and not leave the outstation unless (a) he first obtained the permission of his supervising officer to leave; or (b) in the event of a personal medical emergency.

It is common ground that the appellant failed to report to Correctional Services after he was released from prison on 22 October 1995; and, upon that release, he failed to reside and remain at Costello Outstation for any part of the first 12 months of his 18 months Recognizance.

	On 23 July 1996 Correctional Services laid an Information under the Sentencing Act, alleging that the appellant had failed to comply with his Recognizance.  This eventually resulted in his appearing before the Court of Summary Jurisdiction at Katherine on 13 June 1997, by which time the period of his Recognizance had expired.

The proceedings before his Worship
	It is common ground that after the appellant was released from prison on 22 October 1995, he remained of good behaviour.  Before his Worship the informant’s case was that the appellant had failed to meet the 2 conditions of his Recognizance set out on p2.  As noted, this was admitted before the Court, the appellant’s then counsel contending that the appellant had never received any messages that Correctional Services said they had sent him about the matter, and that he had lived at Numbulwar most of the time following his release, with his wife and children.

	His Worship was in effect asked by the appellant to apply s43(7) of the Act, to hold that it would be unjust to restore the part sentence held in suspense in view of all the circumstances which had arisen since that suspended sentence was imposed; and, pursuant to s43(5)(f), to take no action on the admitted breach of the conditions of the Recognizance, by making no order.  It was not suggested that his Worship should apply s43(5)(e).  Counsel submitted that the appellant had carried out the primary purpose of his Recognizance, by remaining of good behaviour for the period of 18 months.  His Worship accepted that, stating that the fact that the appellant had “managed to keep out of trouble without any help from Correctional Services … must go a long way in his favour.”  Counsel further submitted that the purpose of the 2 conditions in the Recognizance was to assist in ensuring that the appellant did not re-offend; this submission, in effect, was that the conditions served a secondary purpose, and that the appellant had, despite his non-compliance with them, fulfilled the primary purpose of the suspension by not re-offending.  Counsel stressed that this non-reoffending was a material circumstance for the purpose of s43(7), noting that s43(7) provided that “the facts of any subsequent offence” was one of those circumstances.  He submitted that it would be counter-productive now to send the appellant back to prison.

	His Worship considered that the appellant had just “thumbed his nose” at the conditions in the Recognizance; he considered that they constituted “a studied effort” to keep the appellant “under the thumb of the State for some time”, which in his opinion was an understandable requirement in view of his prior record of offending.  His Worship clearly considered that one object of the conditions was that the appellant learned “a bit of discipline”.  He noted that if the part suspended sentence were restored the appellant would be entitled to remissions, since the sentencing of 1995 was before the Sentencing Act was introduced.  In effect, the time the appellant would be required to serve would be 3 1/3 months imprisonment.  His Worship observed, in passing:
“If I had to do 3 1/3 months after keeping my nose clean for all this time, I might be a bit peeved about the system too.”

In making the order now under appeal, his Worship said, inter alia:
“… you’ve apparently kept out of trouble since your release from prison.  You were released not simply to keep out of trouble, you were released also to go to Costello for 12 months and to be under supervision.  It was, if you like, an order for banishment to Costello.  You suited yourself, but you kept out of trouble.  … I can’t see any injustice in restoring this sentence, and because I can’t see any injustice in restoring this sentence, [it] will be restored.  I restore the unserved part and I commit you to prison to serve the unserved balance, less of course remissions.  I am going to spare the bond.”

The submissions on appeal
	The sole ground of appeal in the Notice of Appeal was that his Worship had erred in that he gave inadequate weight to the circumstances of the appellant which had arisen since the suspended sentence was imposed in August 1995.  This is a reference to the statutory basis in s43(7), which must found any opinion under that provision that it would be “unjust” to make an order under s43(5).  

	Mr Hird of counsel for the appellant noted the matters to which I have earlier referred.  He stressed the fact that the appellant had kept out of trouble from August 1995, submitting that the primary aim in suspending service of a sentence of imprisonment is to provide an inducement for the offender to reform. I accept that; see Wilson v Taylor (supra)  at 9, and the authorities there cited.  Accordingly, Mr Hird submitted, the primary aim of the sentencing disposition of August 1995 had now been achieved, the appellant having rehabilitated himself by his own efforts.  Mr Hird referred to the observations on conditional release by Martin CJ in R v Walker (1994) 116 FLR 198 at 201, and submitted that here the appellant had shown that he had rehabilitated himself and had proved that he was no longer a threat to the community.

	Mr Hird sought to distinguish between those conditions in a Recognizance which go to punishment of the offender, and those which go to his rehabilitation.  I note that in the absence of a transcript or reasons for the decision of August 1995, it is difficult to ascertain into which of these categories the conditions in this Recognizance fell.  However, I noted at p4 the view which his Worship took of those conditions, a view which I consider to have been open to him.

	Mr Hird submitted that the main purpose for which the appellant had been conditionally released had now been met, and it was therefore unjust to restore the part sentence which had been earlier suspended.  He referred by way of contrast to the facts in Richardson v Pryce  (unreported, Supreme Court of the Northern Territory (Martin CJ), 2 May 1997), a case involving home detention and a failure to reside at the place specified.  That case involved a very different set of facts.  His Honour pointed out that in the appeal process, while proper weight was to be given to particular matters which might justify reversal on appeal, it was never enough that an appellate court, left to itself, would have arrived at a different conclusion.  I respectfully agree.  I note that his Worship’s decision was discretionary in nature, and on appeal from it the principles in House v The King (1936) 55 CLR 499 apply.  

	I also note the observations by Asche CJ in Fraser v The Queen (unreported, Supreme Court of the Northern Territory, 7 December 1988):
“… a breach of a condition not evidenced by a conviction may be regarded as on the one hand, no more than an unfortunate step in a process which is otherwise operating advantageously, or on the other hand something which indicates that the offender is in no way profiting by the leniency extended to him.”.

His Honour suggested that a question that must be asked is:

“… what is the likelihood that the reformative processes set in train by the original suspended sentence are working for the benefit of the offender and for the community?  … If evidence indicates that the offender is not moving towards rehabilitation, that his conduct indicates he has learned nothing, that he shows every indication of treating with contempt the opportunities advanced to him - in short, if it appears that he continues to represent a threat to himself and the community which cannot be tolerated, then the court should be prepared to reimpose the suspended sentence…”.

However, it was open in this case – and it was clearly his Worship’s view – to treat one purpose of the residence condition at Costello as a punishment by way of restraint on the liberty of the appellant for 12 months.

	A ground of appeal which, as here, founds on “inadequate weight” being given to a relevant matter, to my mind amounts to a contention that the order for restoration of the part sentence was “unjust” in that it resulted in manifestly excessive punishment in the circumstances.

	Ms Blokland of counsel for the respondent noted the structure of the Sentencing Act, ss43(5)(c) and (7), which pointed to a restoration of the whole of the part suspended sentence unless it was found unjust to do so, in the circumstances referred to in s43(7).  She stressed the significant restraint on the appellant’s liberty imposed by the conditions which he had not observed; they were not simply a rehabilitative measure.  She submitted that his failure to observe the conditions was a fundamental breach of his recognizance.  

Conclusions
	I consider that the approach under quite different legislation in other jurisdictions unconstrained by provisions such as s43(5)(c) and (7) of the Sentencing Act – which in part involves consideration of any degree of disproportion between the breach of a bond and the consequences of that breach - does not apply to the same extent in this jurisdiction; cf., for example, Stanitzi v Higgins (1994) 72 A Crim R 445 and R v Harvey (unreported, Supreme Court of South Australia (Nyland J), 27 March 1996).  

	His Worship’s decision in terms of s43(5)(c) and (7) involved the exercise of a wide discretion.  It follows that it is not enough that an appellate court considers that, had it been in his Worship’s position, it would have taken a different course.  What must be shown, for the appeal to succeed, is that his Worship erred in exercising his discretion.

	I am unable to discern any wrong principle upon which his Worship acted.  I do not consider that he allowed any extraneous or irrelevant matter to guide or affect his decision.  He did not mistake the facts.  He did not fail to take into account some material considerations.  I do not consider, upon the facts, that his order restoring the whole of the suspended part of the sentence was unreasonable or plainly unjust, so that a failure properly to exercise his discretion may be inferred.  On that basis, I consider that I am unable to interfere with his Worship’s order.  Accordingly, the appeal is dismissed.

____________________