Re James Hay and Kenneth John Wells v R [1981] FCA 69 (2 June 1981)

FEDERAL COURT OF AUSTRALIA

Re: JAMES HAY and KENNETH JOHN WELLS
And: THE QUEEN
Nos. 37 and 38 of 1980
Criminal Law Consolidation Act s.178 (1) (N.T.)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.
Keely J.
Fisher J.

CATCHWORDS

Criminal Law Consolidation Act s.178 (1) (N.T.) - Break, enter and steal - Appeal against severity of sentence - previous good character - deterrent aspect of imprisonment. Criminal Law (Conditional Release of Offenders) Act.

Federal Court of Australia Act 1976

HEARING

DARWIN
2:6:1981

DECISION

These appeals were heard together, the appellants in this court being represented by one counsel. They appeal against the severity of sentences imposed in the Supreme Court of the Northern Territory on the second day of December 1980.

Both appellants pleaded guilty on the one indictment to a charge of breaking, entering and stealing, contrary to the provisions of s.178(1) of the Criminal Law Consolidation Act. This offence is punishable in the Territory upon conviction by a maximum period of imprisonment of eight years.

The particulars alleged against them were that on 15 September last at Berrimah they broke and entered the Berrimah Hotel where they stole a safe to the value of $200, and its contents, $8,017 in cash and $80 in cheques, the property of Berrimah Hotel/Motel Pty Limited. To these charges they pleaded guilty. Each was represented by counsel and full submissions were made on their behalf. Three other men were also before the court on charges relating to the offence, but save for the purpose of dealing briefly with the facts, there is no necessity to deal in detail with the part played by these other offenders. Following submissions his Honour the trial judge remanded the accused until the following day when sentences were imposed and detailed reasons were given.

Each appellant was sentenced to two years imprisonment and pursuant to s.4 of the Parole of Prisoners Act the trial judge directed that they be not eligible for parole until they had served twelve months of their respective sentences.

The main grounds of appeal to this court are that the trial judge failed to give full weight to the previous good character of each appellant and gave undue weight to the retributive aspect of sentencing and the seriousness of the offences. Argument before us was based to a large extent upon the fact that the trial judge refused to exercise the powers vested in him pursuant to the Criminal Law (Conditional Release of Offenders) Act. This Act empowers a court which has sentenced a person to a term of imprisonment, to direct that such person be released upon appropriate security, either forthwith, or after having served a specified part of the sentence. The effect and implications of release under this legislation were dealt with by this court in two recent decisions, The Queen v. Valentini & Garvie (unreported - delivered 13 November 1980) and The Queen v. Davey (unreported - delivered 13 November 1980).

It was common ground that the appellants, who were under the influence of liquor, were persuaded to enter upon the venture by their co-offender Jennings, a man with a substantial criminal record. The appellants agreed to assist in stealing a safe from the Berrimah Hotel. Jennings had been employed there for a few days and, as the trial judge found, he had recognized the opportunity which existed to break in and steal. Whilst he played the major part the appellants assisted in the project. The hotel was entered in the small hours of the morning, the safe was lifted on to a manual trolley, taken to a utility, transported many miles and dumped in the bush. The efforts of the three men to open the safe were unsuccessful and it was abandoned. It was later opened by others who stole the money and decamped to Queensland where they were subsequently arrested. The material before the trial judge indicated that the appellants had plenty of opportunity to withdraw from the venture had they wished to do so. Difficulties which they encountered with the utility were overcome and there was a considerable delay between the initial planning and the execution of the crime. It was an offence which of its nature could only be executed by persons working in concert. The amount of money stolen was very considerable. Their participation and abandonment of the safe subsequently led others into crime.

His Honour accepted the fact that Jennings was the instigator and that the liquor consumed caused the appellants foolishly to succumb to temptation. In his reasons for sentence he dealt fully with the evidence as to the background of each accused. He treated them as persons of prior good character and as persons whose involvement in the offence was at odds with their past behaviour. He specifically found that from the time the safe was abandoned each accused "withdrew from the enterprise".

The trial judge was thus faced with the difficult situation which arises when a serious crime has been committed by mature persons of previous good character. At the time of the offence the appellant Hay was 40 years of age and the appellant Wells somewhat younger. In sentencing the appellants his Honour spoke of those matters which operated in their favour, the lack of prior convictions, the good work records, the pleas of guilty and the degree of co-operation with the authorities. He dealt specifically with the submissions put to him that he should suspend execution of sentence and he concluded that he could not extend leniency of this nature. He stated "that the crime is so serious that notwithstanding the good record of both Hay and Wells a gaol sentence is the only appropriate sentence".

Section 5 of the Criminal Law (Conditional Release of Offenders) Act which empowers the courts in the Northern Territory to direct release on recognizance after sentence of imprisonment does not specify the considerations involved. It leaves a wide discretion to the court and an important consideration will of course be the prior character of the defendant. But another important consideration must be the seriousness of the offence involved. In The Queen v. Valentini & Garvie (above) this court dealt with the competing philosophies and the many considerations involved in the sentencing procedure.

"The task of a sentencing judge is not an easy one. He is invested with a discretion which entails the balancing of the often competing alternatives of sentencing. It has been said many times that the dominant theme in sentencing is to provide protection to society. To achieve this, the sentencing judge must balance retribution - in the sense of the infliction of a just punishment to express the moral outrage of the community: deterrence - of the particular offender and others in the community who may consider similar action: and rehabilitation - ensuring that the sentence imposed is consistent, if possible, with the offender's returning to society as a contributing member. This delicate process is often complicated by the need to have regard for a uniform and national approach to sentencing, 'a consistent correlation', while looking to society - with whose moral outrage and protection the judge is immediately concerned and the individual offender himself. The judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purposes of sentencing taking care that he punishes only for the crime or crimes before him.

We would refer to the judgment of Brennan J. in Channon v. R. (1978) 20 A.L.R. 1 at p.5 where his Honour cited R. v. Geddes (1936) 36 S.R. (N.S.W.) 554, R. v. Goodrich (1952) 70 W.N. (N.S.W.) 42 and R. v. Cuthbert (1967) 86 W.N. (N.S.W.) (Pt.1) 272. There are many other cases attempting to analyse the task involved and debate has ranged constantly over the field of sentencing aims; whether punishment deters, whether 'retribution' is a legitimate aim, whether rehabilitation should be the primary concern. But it is the interaction of the facts with the perception of societary circumstances that in each case provides the sentence which the judge considers will best protect and reassure society."

In the present matter the trial judge told each appellant that he did not consider he was likely to offend again. In view of this remark and his findings as to their previous good character, it is apparent that the sentence imposed was not designed to operate as a deterrent to the accused themselves. Nor does he appear to have considered that they were persons who required rehabilitative supervision or assistance. The terms of imprisonment were thus imposed as punishment and as sentences which might operate as a general deterrent, a feature of sentencing which the law accepts and which appears to be in accord with community views. His Honour referred to imprisonment as being "the only appropriate sentence", a sentence which "the community demands". By the very nature of his responsibilities in this Territory his Honour was in a better position than this court to assess the relative seriousness of the offence (cf Cranssen v. The King [1936] HCA 40; (1936) 55 C.L.R. 499 at p.520).

Mr Pauling has put everything that could be said on behalf of the appellants, but it seems to us that his Honour fairly evaluated the facts of the offence, gave the appellants full credit for their abandonment of the project and considered and dealt with the mitigating factors that he was required to consider.

It would be wrong to hold that the trial judge's discretion had miscarried because he felt constrained to order the imprisonment of two mature individuals of previous good character who broke and entered licensed premises at night and carried away a safe containing thousands of dollars.

No error of fact or law has been demonstrated and it certainly cannot be said that the sentences were disproportionate to the offences so as to demonstrate error in the exercise of discretion. For the above reasons we consider these appeals must be dismissed and there will be orders accordingly.