CATCITVWORDS Criminal law — Appeal by the Crown against adequacy of sentence -— Principles upon which appellate court will intervene to alter trial judge's sentemce ~- Considerations relevant to the imposition of sentence. Procedure at trial - Irregularity - Plea of guilty to two counts —- Re-arraignment on first count after trial had commenced ~— Change of plea on farst count to guilty —" Leave to enter nolle prosequi on second count -— Whether accused in the charge of the jury - Oral leave to arraign on substituted second count - Appropriateness or otherwise of filing a nollie prosequi in relation to the original second count ~ Whether authoraty to decline to prosecute available, R. v. HALL NO, NTG 11 of 1979 "Date Entered: 29th Tune 1979 _ ° ! IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY : No. NIG 11 of 1979 GENERAL DIVISION , — | es BEIWEEN: THE QUEEN — (Appellant) : AND a oo PHILLIP GRAHAM HALL (Respondent) ORDER JUDGES MAKING ORDER: Toohey, Gallop & Lockhart J.J. DATE OF ORDER: 28 June 1979 . WHERE MADE: Darwin ae THE COURT ORDERS THAT: ". 41. The appeal against the sentence imvosed by the Supreme Court : of the Northern Territory of 4ustralia upon the respondent's being convicted of unlawfully and maliciously setting fire to a building contrary to section 86 of the Criminal Law Consolidation Act and Ordinance be allowed and that in substitution for the said sentence the respondent be imprisoned for a period of four years and ten months wit _& non~parole period of two years and six months. 2. The appeal against the sentence imposed by the Supreme Court of the Northern Territory of Australia upon the respondent's being convicted of unlawful and malicious damage by nignt contrary to section 129 of the Criminal Law Consolidation Act be adjovrned sine die. Peeters) ae a a IN THE FEDERAL COURT OF AUSTRALIA " Se NORTHERW TERRITORY OF AUSTRALIA DISTRICT REGISURY GENERAL DIVISION No. NIG 11 of 1979 Boe THE QUEEN (Appellant) AND: PHILLIP GRAHAM HALL (Respondent) ORDER JUDGES MAKING ORDER: Toohey, Gallop & Lockhart J.J. DATE OF ORDER: 28 June 1979 WHERE MADEs Darwin THE COURT ORDERS THAT: 1. 'The appeal against the sentence imposed by the Supreme Court of the Northern Territory of 4ustralia upon the respondent's being convicted of unlawfully and maliciously setting fire to a building contrary to section 86 of the Criminal Law Consolidation Act and Ordinance be allowed and that in substitution for the said sentence the respondent be imprisoned for a period of four years and ten months with @ non-parole period of two years and six months. nm e The appeal against the sentence imposed by the Supreme Court of the Northern Territory of Australia upon the respondent's being convicted of unlawful and malicious damage by night contrary to section 129 of the Criminal Law Consolidation Act be adjourned sine die. Date Entered: 29 c¢ Gee 1979 . JO Cayo Poris Poyeed DEPUTY DISTRICT REGISTRAR HORTHZON _ TERRITORY A "GS, mA Ly Kewres of Pee p ny Te ee anette a RSC LADD SRST 18) ORDER Sees ay Say Ste PS Nae wn eee ad UN VOL AT Ted cei) tot MMO ET Oh AT Eee eed IN 'THE FEDERAL "COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICL REGISTRY ) No. NIG 11 of 1979 ) GENERAL DIVISION ) ON APPEAL from the SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: THE QUEEN Appellant AND: PHILLIP GRAHAM HALL Respondent CORAM: 'TOOHEZY, GALLOP & LOCKHART JJ. Thursday 28 June 1979 REASONS FOR JUDGMENT TOOHEY J. : : I agree with the orders proposed by Lockhart J. -and with his reasons for judgment. esi s s & true cory cf the 30NS Tot oudr veut Lhe.e.n of bis Homeus ~ — | Jucsice Tokay ae) AN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 11 of $979 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALTA BETWEEN: ' THE QUEEN Appellant PHILLIP GRAHAM HALL . Respondent CORAM: TOOHEY, GALLOP & LOCKHART Ju; Thursday 28 June 1979 - REASONS FOR JUDGMENT LOCKHART J. This is an appeal against sentence impo«nd by the Supreme Court of the Northern Territory followiiy the conviction of the respondent on two charges: first, |hat Yt he unlawfully and maliciously set fire to a building »Antrary té s. 86 of the Criminal Law Consolidation Act and cijinance and secondly that he committed unlawful and malicious damage in the night contrary to s. 129 thereof. On 20 April 1979 the learned sentencing juds\e sentenced the respondent on the first charge to foui' Years and ten months't imprisonment, with a non-parole per! nd of two years, and on the second charge to two years! it fB pores imprisonment with a non~parole period of one year and ordered that the sentences be served concurrently. He further ordered that the respondent be released from custody on 2 July 1979 on the. following condit ions:- 1. That he enter into a bond in his own i recognizance in the sum of $500.00 to be t of good behaviour for a period of three years; 2. That he place himself under the supervision of a probation officer during the said period of three years and obey the directions of the saad probation officer as to employment and place of living and that he report to the said probation. officer on 2 July 1979 and obey his directions as to further reporting and that he subject himself to such medical psychiatric or psychological treatment as may from time to time be directed by his said probation officer and those from time to time in charge of his treatment; and - 3. That he pay by way of restitution, the sum of $3,800.00 by instalments as follows:- (i) $300.00 by 20 December 1979; (ii) $1,000.00 by 20 December 1980; (iii) $1,500.00 by 20 December 1981; and (iv) $1,000.00 by 30 June 1982. The Crown appeals against this sentence, submitting that the sentence is so inadequate as to manifest an error in principle on the part of the learned sentencing judge. It is not submitted that any error appears on the face of "his Honour's remarks; but it is said that the sentence imposed fallg so far short of the range of sentences which would be dictated by the exercise of sound judicial discretion that this court should intervene and impose a sentence which is ../3 .73- appropriate in the circumstances. The respondent: Lived at No. 1 Lambell Terrace Darwin close to the Darwin Hospital and the Red Cross Centre. The house was owned by a Miss Fleper. She occupied the house together with the respondent and a Mr. T. J. Findlay. Each person occupied a separate bedroom and shared facilities in common. The respondent had been living at those premises for about two weeks before the events of 20 November 1978. For about six or seven months before then, he had been working on a voluntary basis with the Red Cross doing jobs such as Meals On Wheels. On 17 November 1978, three days before the respondent set the fires which led to his conviction, he telephoned the Red Cross Centre and enquired whether he could purchase some vases from the Red Cross Opportunity Shop which formed part of the Centre. He enquire: as to what type of items were kept in the shop and was told that there was clothing, kitchenware, bedding and mattresses. On Sunday 19 November 1978 the respondent and Mr. Findlay together with one other person arranged to dine at a restaurant in Darwin called "Melissa's Restaurant" which was owned by the same lady who owned No. 1 Lambell Terrace, Darwin namely Miss Fleper. The respondent arrived at Melissa's Restaurant at about 6.30 p.m. and was joined by his two dinner companions about an hour later. He was not intoxicated when he arrived at the restaurant, but during the course of the evening the three people consumed a few drinks oo o/h Yee eee perce 5 before dinner, four bottles of wine with dinner and possibly some beer also. The three people left the restaurant somewhere between 12.15 and 12.45 a.m. the respondent being somewhat intoxicated. He was driven back to his home by Mr. Findlay: who went to bed about five minutes later. Miss Fleper left the restaurant about half an hour after the respondent did and she too went home, taking with her six bottles of Crown Lager beer. Miss Fleper and the respondent sat up and taiked till about 3.00 a.m. during which time the respondent drank two cans of beer and Miss Fleper one bottle of Crown Lager. At about 3.00 a.m. Miss Fleper retired to her room and went to bed. Prior to her doing so the respondent tried to dissuade her by asking her to stay up and have some more beer, but at that time the respondent was fairly drunk. Upon her retirement Miss Fleper left five full bottles of Crown Lager beer; but when she rose in the morning she noticed that all five bottles were empty although the respondent had been drinking cans of Cariton Draught beer whilst the two of them conversed until the early hours of the morning. Crown Lager bottles hold thirteen ounces of beer. At 3.35 a.m. the control room of the Northern Territory Fire Brigade received a message that there was a fire in Shultz Street which runs off Lambell Terrace. At 3.36 a.m. the first fire truck arrived, and noticed that the Red Cross Cpportunity Shop was on fire. It took the fire 20/5 pace 3S Soros = IIT Rr eer I en SR err EY brigade about 10 minutes to bring the fire under control, The observations of the firemen were that there was one room in which the fire had obviously started being a bedroom in which there was a bed and mattress. It was a room kept by the Red Cross for accommodating people who visited Darwin from the outback to see their relatives or friends who were in the Darwin Hospital, There was nobody resident in that room that night. At 4.11 a.m. the Control Centre of the Fire Brigade received a second call in connection with a fire in the Psychiatric Clinic which 1s part of the Darwin Hospital. The fire brigade was at the Red Cross Centre at that time; they moved to the second fire and brought it under control by 4.20 a.m. When the fire brigade arrived at the Psychiatric Clinic it was full of smoke but they were able to restrict the fire to a small storage room where the fire had been started and which contained highly inflammable material in the form of toilet rolls and paper towels. I need not review the evidence as to the witnesses who identified the respondent as the person who started the fire because there is no dowt that it was he who did so, At 4.43 a.m. the police communications centre at Darwin received the first of four telephone calls from a person claiming to have lit the fires at the Psychiatric Clinic and the Red Cross Opportunity Shop. A second call was received at 5.00 a.m., the third between 5.20 a.m. and 5.25 a.m. and the final call at about 7.03 a.m. ¥ »-/6 Steps were taken to trace the calls. They were traced to the premises of No. 1 Lambell Terrace. Thereafter the police surrounded the premises and arrested the respondent Before the respondent was arrested, Mr. Findlay rose at about 6.40 a.m. and spoke to the respondent who was standing in the kitchen wearing a dressing gown and drinking beer. The respondent-told Mr, Findlay that he had been up all night and had seen vehicles with flashing lights travelling up and down in front of the house. Mr, Findlay noticed that there were four empty Crown Lager bottles of beer. At about 8.00 asm. at the police station the respondent was questioned by the police. He claimed to have slept until 7.00 in the morning and denied that he had made any telephone calls during the evening or morning and said that he was asleep. He denied any knowledge of the fires at the Red Cross Centre and the Psychiatric Clinic. He then sought legal advice and, having obtained 1t, declined to answer any further questions. There was considerable damage to the Red Cross Opportunity Shop. The damage to the Psychiatric Clinic was restricted to its contents. This is not the first time that the respondent has been convicted of arson. In January 1976 he was sentenced by the Supreme Court of Western Australia in Perth to imprisonment for three years on two counts of arson with no parole period being fixed. The respondent was released from prison in Western Australia on 8 April 1978 having served his sentence for two years and three months. Within less than eight months he had lit the fires in the Red Cross Opportunity Shop and the Psychiatric Centre of the Darwin Hospital. The Crown contended before this Court that the i learned sentencing judge should have imposed a substantial ! sentence on each count and should have found in all the circumstances that no non-parole period should be specified. This court will interfere with the sentence imposed by the learned sentencing judge if it is established that his Honour was in error in acting on a wrong principle or in wrongly determining some material evidentiary question. This court does not intervene merely because in its opinion the sentence is excessive or inadequate. The error may appear from the learned sentencing judge's remarks or from the sentence itself which may be manifestly insufficient or excessive. See Skinner v. R. (1913) 16 C.L.R. 366; Whittaker v. R. (1928) 41 C.L.R. 230; Griffiths v. R. (1977) 15 A.L.R. 13 R. v. Tait (a decision of the Full Bench of this court delivered on 1 May 1979, not yet reported.) Although the Federal Court of Australia Act 1976 does not distinguish in principle between appeals by the Crown and those by convicted persons, some special considerations arise where the Crown appeals on the ground that the sentence is insufficient. See Peel v. R. (1971) 125 C.L.R. 447 especially per Barwick Cc, J. at p. 452; R. v. Tait (supra). In R. v. Tait (supra) Brennan, Deane and Gallop JJ. said:- "Tt would be unjust to a defendant, whose ee ~8- freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court...There would be few cases where the appellate court would intervene on an appeal against sentence to -correct an aileged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing \ judge to avoid the error, or if the defendant F were unduly prejudiced in meeting for the first time on appeal the true case against him." In the light of these principles I turn to the present appeal. The Crown submitted that the learned sentencing judge imposed sentences so manifestly inadequate as called for the intervention of this Court. The Crown contended that his Honour had regard solely to the question of rehabilitation of the respondent to the exclusion of matters of deterrence and the general protection of the community. The Crown submitted that his Honour's error is manifest from an examination of first, the inherent nature of the offences themselves; second, the circumstances surrounding the commission of the offences; third, the character of the respondent particularly when consideration I is given to his antecedents, and fourth, the future prospects of rehabilitation of the respondent as opposed to the very real prospect of a repetition by him of the same sort of offence. - The maximum penalty prescribed for the offence, the subject of the first count, is fourteen years' imprisonment. ' In Tait's Case (supra) the Court said:- "A miximum penalty is reserved for the worst type of case falling within the relevant prohibition. The observance of this principle 20/9 oe -9- provides the flexibility in sentencing which . secures proportion and comparability among sentences imposed...The prescribing of a maximum penalty in respect of an offence not only marks the limits of the court's discretionary power as to sentence, 1t also ordinarily prescribes what the penalty should be in the worst type of case which falls within the relevant class of offence... That is not to say that a maximum penalty should not be imposed in a case which otherwise required it merely because a worse case could be imagined. «-.That principle requires that both the nature of the crime and the circumstances of the criminal' be considered in determining whether the case is of the worst type." The circumstances surrounding the commission of the offence and the antecedents of the respondent require imposition of a substantial sentence. The deterrent aspect of punishment is of considerable importance in cases of this kind. The sentence should demonstrate to others tempted to engage in offences of a like nature that punishment will be imposed calculated to protect society from serious attacks upon it. It was submitted by counsel for the respondent that it would not be in the best interest of the respondent to be sentenced to a term of imprisonment as he was a person suffering from deep-seated psychological problems. A great deal of psychiatric and psychological material was before the learned sentencing judge. His Honour gave great weight to what he regarded as the respondent's prospects of rehabilitation. I have'no doubt that the respondent impressec himself upon the learned sentencing judge as a man with distinct disorders of personality. His Honour clearly held the view that the respondent was capable of being rehabilitate provided he had the support of probation officers, psychiat-— rists and psychologists. I have considered the psychiatric 2.22/10 ' poem -- . . 2 ee Sy reo gpoet- 77 : wong nee ~ sor eco ~10~ and psychological evidence placed before his Honour but have come to the conclusion it does not support his Honour's conclusion as to the respondent's prospects of rehabilitation The maximum penalty prescribed for the first offence namely fourteen years! imprisonment, reflects its seriousness Less than eight months before he committed that offence the respondent had been released from prison in Western Australia having earlier committed offences of a like nature there. I am left with the strong impression that the respondent is quite likely to offend again in a similar way. In my opinion the reformative aspect was given too much weight by the learned sentencing judge. The result of his Honour's decision when the sentence is viewed as a whole, is to produce a sentence so lenient that it does not accord with the general moral sense of the community and is unlikely to be a sufficient deterrent to the respondent or to others. See R. v. Geddes (1936) 36 S.R. (N.S.W)554; Channon v. R. (1978) 20 A.L.R. 13 R. v. Prindable - a decision of the Full Bench of this court delivered 9 March 1979, not yet reported. The error in the sentence of the learned sentencing judge 1s manifested particularly by the provision for the release of the respondent on 2 July 1979 and as well by the term of the non-parole period. . In my opinion the case calis for a sentence imposing a term of imprisonment without such release and the fixing of a longer non-parole period. I do not think it necessary to alter the term of the head sentence. oee/11 Fn re we ee oe I agree with the conclusion of Gallop J., whose reasons for judgment I have read, that no order should be made by this court in respect of the sentence on the substituted second count. In the result I would allow the appeal and order that in substitution for the sentence imposed on the first. count the respondent be imprisoned for a period of four years ten months. I specify a period of two years six months during which he will not be eligible for parole. The sentence will date from 20 April 1979. I agree with the learned sentencing judge that the sentences imposed on both counts should be served concurrently. _ Oe SS nn Eero ms: — IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY -DISTRICT REGISTRY No. NTG 11 of 1979 Nu a et a et GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: DHE QUEEN Appellant AND: PHILLIP GRAHAM HALL Respondent CORAM: TOOHEY, GALLOP & LOCKHART JJ. 2B June 1979 REASONS FOR JUDGMEN GALLOP J. : rs . This is an appeal by the Crown against the sentence imposed in the Supreme Court of the Northern Territory by Muirhead J. on 20 April 1979. The respondent was arraigned on an indictment presented in the name of Graham Richerd Nicholson, a person appointed by the Attorney-General pursuant to s.13 of the Criminal Law and Procedure Act and containing two counts: "Count 1 - Unlawfully and maliciously setting fire to a building: contrary to section 86 of the Criminal Law Consolidation Act and Ordinance. PARTICULARS Phillip Graham Hall did on the 20th day of 'November 1978, in Lambell Terrace Darwin in the horthern Territory.of Australia, unlawfully SN we he dre om ghee eae md Jase AMA . C and maliciousiy set fire to a building, namely 5 __.____ the Red Cross. Society Clothing Store. Count 2 Unlawfully andi maliciously setting fire to a . building used 'hy or for a department of government? CQntirary to section 85 of the Criminal Law CYnsolidation Act and Ordinance. PARTICULARS Phillip Graham Wail on the 20th day of November 1978 in Lambel4 Terrace, Darwin, in the Northern Territory of Australia unlawfully and maliciously set fire to tha pay Centre of Darwin Hospital, being a buildis,; used by or for a department of F government, Ramnely the Health Department." The accused pleaded pat, guilty to both counts. After the trial had proceeded for tx® gays the Crown applied to have the accused re-arraigned on the fiyst count, indicating that if he pleaded guilty to the first cont, that is if he changed his plea from one of not guilty to gniiity, the Crown. would then seek leave to enter a nolle prosHyii on the second count in the indictment in its original form, Wis Honour then raised the question whether there should hy a verdict of the jury on the second count. The Crown Prosecutor 4\Wformed his Honour that the accused was not in the charge of the jitty on that count at that juncture. His ° Honour acceded to this statement, which, it is now conceded, was incorrect. The afttsed was indeed in the charge of the jury on the second cant, as stare the first count, pleaflyd guilty to it and the Crown applied to The accused was then re-arraigned on adc a fresh count to t\je indictment, indicating that it would enter a nolle proseqiit jn relation to the second count in the indictment in its original form. His Honour accepted an under- taking from the Crown (hat this would be done and thereupon the Crown applied to subSt\itute another count for the second count, ° namely a charge of unlawful and malicious damage in the night, particulars whereof were that the accused did on the 20th November 1978 at Lambell Terrace, Darwin, unlawfully and maliciously commit damage in the night to real and personal property, namely the Day Centre of Darwin Hospital and chattels therein, such damage amounting to $100.00. Counsel for the accused consented to that amendment. The accused was then arraigned on the substituted second count {as it was called) and pleaded guilty to that count. The result of this procedure was that the accused had pleaded guilty to the original first count in the indictment and to a further count added ty the leave of the trial jndge cn the third day of the trial. The learned trial judge then directed the jury to enter a verdict of guilty in relation the first ccunt and the seccend count which had been added by leave. I make seme comments later about the propriety of this procedure, but the following facts are commou ground on the hearing of the appeal before us: (1) The Crown gave an undertaking to file a - nolle proseoui in respect of the criginal second count in the indictuent. (2) The nolle prosequi was in fact filed in the name cf Graham Richard Nicholsen vho had presented the original indictment, altheugh it is noted that the nolle prosequi as filed was not signed by the saic Graham Richard Nicholson or anyone else. (3) The application to amend the indictment sc as to add the count of malicious damage to preperty in the night was made orally. (4) fhe learned prosecutor who made tnat application to add the count was not a person avpointed by the Attorney~General to prosecute on indictment pursuant to the provisions of s.13 of the Criminal Law and Procedure Act. (5) The whole procedure before the trial judze was taken with the consent cf the resncndent. 4. In the course of the hearing of this appeal certain . matters were raised by the Court relating to the appropriateness or otherwise of filing a nolle prosequi in relation to the original second count, the fact that it was apparently filed by a person holding an appointment from the Attorney-General under s.13 of the Criminal Law and Procedure Act to prosecute by indictment but no authority to decline to prosecute, the fact that the application to add the count of malicious damage to property in the night was made orally and never reduced to writing (except by his Honour) so that it was not apparent on its face that that count was presented by a person authorised in that behalf, and was in fact made by a persona who was not authorised by the Attorney-General to prosecute by indictment pursuant to an apsointment under s.13. These matters having been raised, it was cenceded by the appellant that the procedure whereby the criginal second count was disposed of was irregular in the circumstances. It was conceded that the apprcoriate course, having regard to the fact that the accused was then in the charge of the jury on the second count as well as the first count, was to direct the jury to enter a verdict of not guilty in relation to that count. It is a matter of no little cencern that the Crown suggested a course to the learned trial judge which was wholly inappropriate in all the circumstances. The irregularity was exacerbated by the fact that when the nolle proseaui was filed apparently it was filed by the same person who had presented the original indictment and it was argued on behalf of the Crown that this was a prover course because of the provision of s.43 of the Interpretation Act. This section reads: a" ¢ "43. Where an Act confers a power to take an action or to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in a like manner and subject to the like conditions to repeal,rescind, revoke, amend or vary any such action or instrument." On the hearing of this appeal the Crown's argument was that a person who had been authorised by the Attorney-General to prosecute by indictment in his own name could pursuant to s.43 of the Interpretation Act repeal, rescind, revoke, amead or vary any indictment so presented. In my view this argument is fallacious. Certainly s.43 of the Interpretation Act would operate so as to invest in the Attorney-General the power to repeal, rescind, revoke, amend-or vary any appointment of a person to prosecute by indictment in his own name, but that is not to say that an appointment under s.13 would invest in the appointee a power to enter a nollie prosequi in proceedings where that person had already prosecuted by indictment in his own name. Apart from ordinary construction of s.43 and the nature of a nolle prosequi the reason for this is clear. It is a very significant matter for the Crown to decline to proceed further in circumstances where the ordinary precedure of committal for trial before a court of summary jurisdiction and the finding of a2 bill of indictment have taken place. It is not surprising and accords with sound executive government that the Attorney-— General would wish to preserve to himself the power to make the ultimate and important decision of declining to prosecute Curther where these administrative acts have been completed as Free . - : : of the ordinary preliminaries to a prosecution of an BAS tee able offence (see Archbold 39th ed., para. 142: Watson & aa MOLY ¢ Criminal Law in New South Wales, para. 1060; and da te & "*2£itdee (1909) 26 W.N. 152). eee I nee oe omer 7 a 6. In my view, therefore, the nolle prosequi, if for no other reason, was ineffective in this case. Even if the document filed had been in proper form and presented by a person who had authority to file a nolle prosequi, I think that it should have been seen on its face to have been executed by such a person and not be an unsigned document. For the present purposes, however, nothing further turns upon this series of irregilarities. I consider it important to point out that the procedures adopted in this case nere irregular and should be avoided in the future. . The next matter to which attention should be directed is that the procedure whereby another charge was preferred against the accused was irregular. The application to add the count was an oral application made, as I said earlier, by a Crown Prosecutor who was not a person appointed by the Attorney~ General pursnant to s.13 of the Criminal Law and Procedure Act. It is plain from the terms of the Indictments Act s.7 that an indictment should indicate the name of the persoa by whom it is presented and the authority of that person to present it. Prior to the Indictments Act 19€8 there was no legislation regulating the presentation of indictments or their form in the Northern Territory; consequently indictments were formerly presented in common law language and form. The Indictments Act -1968 provides for the manner of presentation of indictments for the prosecution of criminal offences in the Northern Territory and makes it plain that indictments should charge the appropriate offences in intelligible and plain language. On the hearing of this appeal the Crown sought to rely upon s.18 of the Indictments Act as authority for the nay in 7. which this indictment was amended, if that is the proper term, by the addition of another count of an offence of a different nature. Section 18 of the Indictments Act reads: "18, (1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice, and may make such order as to the payment of any costs incurred owing to the necessity for amendment as the court thinks fit. (2) Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment shall be treated for the purposes of the trial ' and for the purposes of all proceedings in connexion therewith as having been presented in the amended form." This provision is no justification for the course which was adopted at the trial. This indictment was not defective. It may well be that the evidence led by the Crown was insufficient to support a conviction on the second count in its original form. But that is not the same thing as saying that the indictment was defective. The purpose of s.18 is to permit amendment of an indictment so as to meet the circumstances of the case provided this can be done without injustice to the accused. I reject the Crown's arguments in so far as they are based upon s.18. It was further contended by the Crown that the irregularities referred to are of no account: because the accused consented to the course adopted by the Crown. The Crown has a duty to the Court to assist it in the task of conducting a criminal trial, including the arraignment of the accused, the recording of his pleas and the presentation of any evidence Fv abahtoer sa amar zy eR TR ERR TTT tee lesa FRR ees Py in accordance with proper rules of criminal procedure. The Crown should be meticulous to ensure that strictly appropriate criminal procedures are adopted. For the Crown to rely upon the consent of the accused as an absolution for its failure to assist the court in important matters of procedure is a dereliction of its all important duty to the court. The Croun is under a duty to assist the court to avoid any departures from proper criminal procedure, especially if those departures might result, as they did in this case, in a plea of guilty to a charge improperly presented and a sentence being imposed upon an accused person on such improperly presented charge. 'There nould be few cases indeed where an appellate court would intervene on an appeal by the Crown against sentence to correct an alleged sentencing error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid errors in procedure. What I have said already is sufficient to indicate that if an application was made to quash the conviction and sentence on the substituted count of malicious damage to property in the night under s.129 of the Criminal Law & Consolidation Act, I would be disposed to quash the conviction and sentence. No such application has been made at the present time but the Crown should itself apply for such an order. The powers of this Court under s.28(1) of the Federal Court of Anstralia Act are sufficient authority for this course. On the first count the respondent was sentenced to imprisonment for four years and ten calendar monshs with hard labour and the sentencing judge specified a period of two years during which the respondent would not become eligible for parole, ra In relation to the second count the respondent was sentenced . to two years imprisonment with hard labour and the sentencing judge specified a period of one year during which the respondent would not become eligible for parole. The learned judge ordered that both sentences be served concurrently and further ordered, pursuant to the Criminal Law Conditional Release of Offenders) Act, that the respondent bereleased after serving part of his sentence, namely on 2 July 1979, on his entering into a recognizance in the sum of $500.00 (1) to be of good behaviour for a period of 3 years, (2) upon release to report forthwith _ to the probation office and submit himself to the supervision of a probation officer and subject himself to such medical treatment as may be required, (3) to pay by way of restitution the sum of $3800.00 in part payments as shown hereunder: (i) 3300.06 by 20 December 1979; (ii) $1000.00 by 20 December 1986; (iii) $1500.00 by 26 December 1981; (iv) $1000.00 by 30 June 1982. It has been contended on this appeal that the sentencing judge improperly exercise¢ his discretion, acted upon wrong principles and failed to take into account relevant considerations the result of which was that he was wrong in ordering the "wspension of the cperation of the head sentences and non-paroie teriods, and that the head sentences and non-parole periods were '* 'heaselves inadequate in all the circumstances. The Crown vane ar * x "ed that the sentencing judge should have imposed a eae tape fal head sentence on each count and should have found cS al : . 1 the circumstances the duty to specify a non-parole ' ~F og Fyryt *Fed by s.4(1) of the Parole of Prisoners Act 1976 tom 10, ' did not apply because of the nature of the offences and the antecedents of the offender. Section 4(3) of the Act provides that the duty does not apply "if the court considers that the nature of the offence or offences and the antecedents of the offender do not warrant the specifying of the lesser term cf imprisonment". In The Queen v. Ta't & Bartley (unreported decision of this Court delivered on 1 May 1979) the Court set out the principles governing the review of the sentencing discretion by an appellate court, particularly in a case of an appeal by the Crown on the ground that the sentence is inadequate. It is not necessary to repeat what was set out in that judgment: it is sufficient to observe that this Court will only interfere if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in nhat the judge said in the proceedings or the sentence itself may be so excessive or inadecuate as to manifest such error. As stated in that case, the relevant provisions of the Federal] Court cf Australia Act do not provide any basis for distin- guishing between the general principles to be applied by the Court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a convicted person. - The facts giving rise to the counts against the respondent all took place on 20 November 197&. At that time he was residing at 1 Lambell Terrace which is opposite the Darwin Hospital. He had been living there for about two months. Premises run by the Red Cross, known as the Red Cross Cpportunity - 11. Shop, are also in the same street. During the six months prior to 20 November the respondent had donc voluntary work for the Red Cross. On Sunday 19 ko- the respondent, one Findlay, and another person ar - dine at a restaurant in Darwin. They arrived at t! at 6.30 p.m. and the observation then made of them the respondent, was that they were not intoxicate. some mixed drinks and then four bottles of wine wi The respondent and Findlay left the restaurant bet and 12.45 aem. and the respondent's condition was .' as being "a bit intoxicated" or "three parts druni. respondent was driven home to 1 Lambell Terrace a: : went to bed. The premises were owned by the pronr' - the restaurant and she came home about half an how . respondent and the pronrietoress then had two bat' >- The proprietoress went to bed at about 3 a.m. br: respondent was fairly drunk. When she went to bec . four or five bottles of Crown Lager beer still to ~ when she got up the next morning she found that t*.- been consumed. At about 3.35 a.m. on the morning .° 1978 the centrol room of the Northern Territory F- received a message that there was a fire in Schul is close te Lambell Terrace, a fire tender was cu despatched and on arrival the fire brigade found shop on fire. It took about ten minutes to bring control. It was deduced that the fire had commen bedroom in those premises, but there was no-one i Electrical fault as a cause of the fire was ruled although three "hot spots" which apparently are t points of a fire wére identified, the fire brigade officers were unable to pinpoint the cause of the fire. At 4.41 aom. on the same day another message was received, of a fire at the Day Centre in the Darwin Hospital. This is a centre for psychiatric treatment. Again a fire tender was despatched and it was found that there was a fire in a small storage room in the Day Centre. The storage room contained such highly ' inflammable articles as toilet and paper rolls. Between 4-43 a.m. and 7.03 a.m. the police station at Darwin head- quarters received four telephone calls from a person claiming to have lit the two fires. These calis were taped and transcripts of the tapes were produced in evidence. The calls were made by the respondent. While he was making the Last telephone call the police arrived at 1 Lambell Terrace, the telephone calls having been traced to that address. The police were admitted, apprehended the respondent and he was taken to ' the police station. At about 8 a.m. at the police station the respondent was questioned by Det. Const. Bainbridge. When asked about his movements the previous night the respondent teld Det. Const. Bainbridge that he had been to the restaurant with Tom (Findlay} and Melissa (the preprietoress of the restaurant). He said that he had been there until just after midnight and, having been driven home,when Melissa arrived he spoke to her for about an hour and then went to bed. He said he had gone to the restaurant at about half past six and did not leave the house after he had get home. He claimed to have slept until seven in the morning. He denied that he had made any phone calls during the morning and said that he was asleep. TIe denied any 13. ! knowledge of the fires at the Red Cross Centre and the Day Centre. He then sought legal advice and having obtained it declined to answer any further questions, Damage by fire to the Red Cross Opportunity Shop was considerable. Damage to the Day Centre was restricted to the contents rather than structural damage. It was contended on the appeal that the fires lit by the accused were of the gravest character, because of the nature of the buildingsthemselves and their contents. The Crown contended that it would be appropriate to take account of the possibility of danger to life and property. In particular the Crown ccntended that the second fire in the Day Centre was in an integral part of the hospital at a time when the premises were virtually deserted, making it more probable that a fire would be quite out of control before anybody became aware of its existence. These facts were not disputed by the respondent either on his trial or on appeal. The facts, of course, had already been proved in evidence «hen the conduct of the trial changed as indicated earlier. There was really only one matter which was asserted by the Crown and not accepted by the respondent on the appeal, namely that the lighting of the fires was a potential danger to life. I am of the view that the trial judge was ccrrect in finding that the respondent's conduct amounted to a danger to the lives of people. - When the course of the trial changed, the Crewn furnished material to the sentencing judge by way of statements from the bar table. Included was the fact that the respondent had been released frem prison in Western Australia on 8 April 1978, having been sentenced in January 1976, meaning that he had ' 14. - served a period of two years and three months. Later, an antecedents report was furnished stating that the accused had been released on 8 April 1978 after serving two years, five months of a three year sentence. When Mr. Livingstone, psychologist, gave evidence on behalf of the respondent he referred to the respondent having been very aware that he had been in gaol for two years, seven months and thirteen days. A pre-sentence report requested by the sentencing judge stated that the respondent had been convicted on two counts of arson on 13 January 1976 and sentenced to three years imprisonment on each, to be served concurrently. He was imprisoned at the Fremantle Gaol and then transferred to the Woolooroc Training Centre. The sentencing judge on that oecasion had declined to specify a non-parole period. The precise particilars of this previous conviction or convictions were not furnished to the sentencing . judge by the Crown at the trial. In this respect also I am of tue view that the Crown failed properly te discharge its fundamental duty to give the court full assistance. Prior convictions of the accused were a very material consideration for the exercise cf the sentencing discretion. As events turned ont the respondent admitted the previous convictions and sentences in respect of offences apparently committed in August 1975, and although his ceunsel indicatcd that at an aporepriate stage he would furnish to the sentencing judge the remarks passed by the West Australian judge when sentencing the accused on the prior cccasion, suen remarks were never furnished to the sentencing judge, and despite reference \e * er. — 4 DT, Roe EVR mm 15. being made to this apparent oversight at the trial they were never furnished to this Court at the hearing of the appeal. The consequences are that this Court is in a similar position of not having very precise particulars of the previous \ convictions; This is a very unsatisfactory situation, where the Crown appeals tc this Court against the inadequacy of sentence. The Crown has a duty to this Court also to see that it is fully informed on all relevant matters, and it is so obvious as to be unnecessary to state that prior convictions for offences of a similar nature are extremely important on the question of penalty in this appeal. The common facts which emerged in various vays before the learned sentencing judge were that early in January 1976 in the Supreme Court ef Western Australia in Perth the respondent was convicted and sentenced to three years imprisonment on tno counts of arson. The sentencing judge acceptecc those facts and the respondent has not contended otherwise on the hearing of this appeal. TFT repeat that there was a paucity of evidence ' about this important issue and it was the Croin's duty te ensure that the court was fully informed. The mere recital of the facts of the offences now under revier anc the respondent's antecedents warrant consideration of substantial gaol sentences for each cffence. The maximum pr-scribed for the offeace of arson as charged in the first count is fourteen years: the maximun penalty prescribed fer the substituted second count is five years, On behalf of the respondent it tas contended at the trial that he had a number of recognisable deep-seated psychclogical problems anc thit it would not be in his best interests to be . . 16. sentenced to a term of imprisonment. A considerable body of psychiatric and psychological material was placed before the sentencing judge in this respect. There was also some evidence of general good character. Before the sentencing judge the respondent also offered to make restitution of the sum of $3800.00 at the rate of $25.00 per week, provided that he was at liberty, not in custody, and able to gain satisfactory employment. He indicated, through his counsel, that if the trial judge was disposed to order his conditional release, \ repayment of the cost of the damage could be a condition of the release subject to his ability to pay. The cost of the damage as asserted by the respondent's counsel was not accepted by the Crown. The evidence available to the Crorm was that a loss assessor had assessed the damage at $20,33€.00. This was an estimate of the cost of repairs before any repairs were uncertaken. The sentencing judge made no finding of fact about the cost of repairs though it seems implicit frem the terms of the sentences imposed and in particular the terms of the conditional release of the respondent, that he accepted the figure of $3200.00 asserted by the respondent. In my view the evidence was teo flimsy on this matter and it was surely a relevant consideration for the trial judge. The Crown should have been in a position and should have discharged its duty to inform the ceurt either by evidence or facts accepted by the accused person of the cost of the damage to the Red Cross premises referred to in the first count. I cannot over- emphasise the high duty on the Crown in criminal cases to render the utmost assistance to a sentencing judge in his administration ef the criminal law. ee ee ee ree nr eee me Se eeteaeetiiae tiie Sinad tose Fiat sate lel odenon | eeieiie diese a = . = ay a a) , ame a mae nm rere 17. In endeavouring to strike a balance between the various considerations which a sentencing judge must take into account, his Honour gave considerable weight to the respondent's prospects of rehabilitation. He said that the only true solution lay in the provision of an opportunity to the respondent of making a useful life for himself. For these reasons he imposed sentences which can only be described as extremely merciful. The Crown has contended that the degree of leniency inherent in the sentences renders them inadequate and inappropriate, having regard to the gravity of the offences. In my view the reformative aspect has been given too mich weight and is disproportionate to the circumstances of the offences and the respondent's antecedents. Nor are the prospects of rehabilitation supported by the psychological and psychiatric evidence. The respondent presented as a, person with recognisable personality disorders, but eoually he does not appear to have learned any lesson from his convictions and sentences in Western Australia in January 1976, One is left with the general impression that, given the comb- ination of alcholic influence and resentment at his fellow human beings,the respondent is quite likely to offend again in a Similar way. He has never expressed any contrition for what he 'did. When speaking to the police officer in one of the taped telephone conversations he maintained that he was not . at all sorry for what he had done. There was nothing in the psychological and psychiatric evidence called on his behalf which indicated any remorse or contrition for his condnct despite very extensive counselling since his release from prison in April 1978 and subsequent to his arrest on the present charges. 18. The result of the sentences imposed was not to provide condign punishment, nor to reflect the general moral sense of the community (Channon v. Re (1978) 20 A.L.R. 1). In my view the sentencing discretion has miscarried and this Court should intervene. As this Court said in The Queen v. Prindable (unreported decision, delivered in Brisbane on 9 March 1979) the review by an appellate court of a sentencing judge's discretion to suspend sentences involves the same principles as a review of the judicial discretion to impose the head sentence itself (The Queen v. Shueard (1972) 4 S.AS.R. 36 at 43) and if the sentence as a whole is seen to be so dis- proportionate to the sentence which the circumstances require as to indicate an error of principle, the appellate court should intervene. There were two separate invasions of prenverty committed on the same night. Cne matter to be considered is whether the sentencing judge was correct in ordering that the sentences be served concurrently, particulerly as they were cuite distinct sentences. They were committed on the same night in the same locality and when the respondent was under the influence of intoxicating licuor. I think the sentencing judse mist have taken these matters into account in ordering that the sentences be served concurrently and that he was not in error in doing so.. For the reasons indicated, however, I do not think that this Court should make any order in respect of the sentence on the substituted second count. In relation te the first count, one is required to consider what sentence would represent the . appropriate, duly proportionate and properly balanced sentence ' (per Smithers J, in Anderson v. R, (1977) 19 A.L.R. 212 at 221). |. APY ee reeexee ce Fe aareeet een h adunesaans enie tedasrsahdamnamadieet oles abe-acher-tpen cin vas abenernstian.euteanieieo endibieadaaeeso OUR 4th tibemtiar obec' aiet bi tat dan inet Rie Papert sie Meine tei Hem Bie meinen iene, RE er Flea ab aah mac ci ie Bae ernie At lene an ~ 7 me eee Rh gn eR age at pops wheat a 19. , In my view the head sentence on the first count tras unappealable and shovld stand. In order to provide an appropriate, duly proportionate and properly balalticed sentence I think it is appropriate te specify a period of tto years, six months during which the respondent will not he eligible for parole. I do not think that the sentencing jitdge should have suspended the operation of any portion of the respondent! s scntence. In the result I would allew the apneal ang Apder that in substitution for the sentence imposcd on the first cennt the respoenden. be imprisoned for a peried of four sears ane ten raaths ance L weuld seecifv a neried cf tre +e; Ezy menths Cuving whieh he will mot he ekaicthic Por rpaee, I certify that this and the eighteen preceding pages are a true copy of the Reasons for jydgment herein of his Honour Mr. Justice Gallop, Associate. 27 June 1979 — - or cad ne "sm