Edward Alfred Braham v R

• Jurisdiction: Northern Territory
• Court: Court of Criminal Appeal
• Judge: Martin CJ,Angel J,Thomas J
• Judgment Date: 22 June 1994
• Docket Number: No. CA24 of 1993
• Date: 22 June 1994

[1994] NTCCA 60

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

Martin CJ(1), Angel(2) and Thomas JJ(3)

No. CA24 of 1993

Edward Alfred Braham

and

R

Appearances not available

Appeal — sentence — principles where offender is old

ORDER

Appeal allowed.

JUDGE1

Martin CJ I need add nothing to the details of the offences for which the applicant was convicted, nor as to the matters taken into consideration by the learned trial Judge upon sentencing him, than is set out in the reasons of their Honours, Angel J and Thomas J, for which I am grateful.

2 In an unusual and somewhat difficult case like this it is worth recalling the principles to be applied. In Cranssen v R (1936) 55 CLR 509, after pointing out that an appeal against sentence is an appeal from a discretionary act of the Court responsible for the sentence, Dixon, Evatt and McTiernan JJ (at 519–520) said:

‘The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in due and proper exercise of the court's authority’.

3 In Harris v R (1954) 90 CLR 652 the Court, after this citation, at p656 added: ‘It is not enough in applying those principles that the judges of this Court should regard the sentence as greater than they themselves would have imposed’.

FIRST OR SECOND OFFENCE

4 Although agreeing with his conclusion, I have a little difficulty in agreeing with all that has been said by Angel J in relation to this subject. Cases in which what is being considered is the distinction between penalties which might be imposed for a first offence, or a second or subsequent offence as provided for in statute, provide little guidance in this matter. If, as is suggested, there is a general rule that when a number of charges come before a Court on the one day and there are pleas of guilty to each, the sentencing Court is not to accumulate the offences as if there were prior convictions, and one of the reasons for the rule is that the accused has not been in any way warned of the severity of punishment which might be produced by his conduct if it is repeated after the initial offence it can be distinguished in this matter. Here, the applicant could not have been in doubt as to the likelihood of his suffering punishment for the second offence. He had been arrested, charged and committed for trial in relation to the first and must have known the seriousness of the position he was then in, and have known that he was fortunate to avoid being convicted and dealt with in relation to the first matter. Certainly he did not know that his luck had run out when he ventured upon the second offence, but it will be recalled that he enlisted Wright to again assist him in relation to setting up the plantation for the second time and Wright had been convicted and sentenced to 4 years imprisonment with an 18 month non-parole period in relation to the first. To suggest that the applicant was unaware of what might befall him if he were caught the second time would be entirely artificial.

5 I would adopt, with respect, the observations of Bray CJ in Napper v Samuels (1972) 4 SASR 63 at 68–69:

‘While fully realising that it is the offending again after the warning of a previous conviction which normally warrants severer punishment on a second conviction, it is true that there is a difference between a man who appears in a criminal court for the first time and is convicted of one offence only and a man who appears in a criminal court for the first time and is convicted of several offences. In the case of the latter his previous immunity may have been due to luck rather than virtue. The weight to be attached to this is a matter for judicial discretion. ….. Obviously when there are several offences and no previous conviction, the closer the connection between the offences in time or circumstance the nearer they approximate to one offence only’. (See also Mitchell J at p74 with whom Wells J agreed).

6 I do not understand the learned sentencing Judge to have indicated that he could not, as a matter of discretion, treat the applicant as a first offender when he came to consider the second offence, but, rather, that in the exercise of his discretion he would not. In all the circumstances of this case I agree that his Honour has not been shown to have been wrong.

STALENESS OF FIRST OFFENCE

7 Once the nolle prosequi had been filed in relation to the first offence, the applicant no longer had the prospect of trial before him in relation to it, and that prospect did not arise again until at about the same time as he was arrested for the second offence. The commission of the second offence is a clear indication that the applicant had not reformed himself after committing the first. The learned sentencing Judge took into account the observation of Fox J in Murrell (1985) 15 A Crim R 303 at 307: ‘if the commission of crime is to be deterred, and punishment is to achieve its purposes, retribution should be as certain and as speedy as possible.’ and, on that basis, thought that the applicant was entitled to benefit for the delay. With respect, I can not accept that delay, regardless of the reason, for it should confer a benefit on a convicted person when being sentenced. I am in general agreement with Angel J on this issue.

THE AGE OF THE APPLICANT

8 As the cases referred to by Angel J so cogently demonstrate, the age of a person facing sentence is not determinative of the outcome. In R v Yates (1985) VR 41 the majority, Young CJ Starke, Crockett and Hampel JJ, simply disposed of the question of whether a sentence of 10 years with a minimum of 8 years should be regarded as a ‘crushing’ sentence for a 68 year old male by acting upon the principle that he might have to serve the whole of the term imprisoned, and that the sentence would thus destroy any reasonable expectation of useful life after release. They instead ordered that he be sentenced to imprisonment for a term of 7 years with a minimum of 5 years before he could be eligible to be released upon parole. In dissent, Murphy J took a different view, after taking into account all of the circumstances of the case and said, at p50:

‘To argue that a man of 68 years who commits such serious offences, ordinarily punishable by a sentence such as has been imposed, should be imprisoned for a substantially lesser term solely because of his age, is not in my opinion to do justice. Age is but one relevant consideration’.

9 With respect, I prefer that view, which had been earlier reflected in The Queen v Hunter (1984) 36 SASR 101, by King CJ at p103:

‘The difficult aspect of the respondent's case is his age. A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him. It may be that when that consideration is borne in mind, it can be said that the sentence of five years' imprisonment, which at first sight seems very lenient for the respondent's criminal conduct, is nevertheless within the scope of the judge's sentencing discretion. I am unable to feel the same way, however, about the non-parole period. In fixing a non-parole period, a sentencing judge must direct his attention to the minimum period for which the offender must, if the purposes of punishment are to be served, remain in prison. He must then turn his attention to the factors which bear upon the particular offender as a candidate for parole. The respondent is undoubtedly an excellent candidate for parole. There is every reason to believe that he would not offend again. It is necessary, however, that the time required to be spent in prison be adequate punishment for the crime committed. The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment’.

10 The respondent in that case, a solicitor, had been sentenced to 5 years imprisonment on each of 19 counts of fraudulent conversion to be served concurrently, with a non-parole period of 14 calendar months. In allowing the Crown appeal, there was imposed a sentence of 5 years imprisonment on each count to be served concurrently with a non-parole period of 3 years and 6 calendar months. Jacobs and White JJ agreed. At p105 Jacobs J indicated that such grave offences must be within a range of imprisonment of 12 years with a non-parole period of 4 1/2 years and that it was only the age of the respondent, who was then 74, which caused the learned sentencing Judge to impose a head sentence of 5 years only, and the non-parole period of 14 months.

11 This is not a case in which the applicant...