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AB v The King

AB v The King

Case [2023] NTCCA 8 25 October 2023

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CITATION:AB v The King [2023] NTCCA 8
PARTIES:AB
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 12 of 2022 (22040211 & 22121586)
DELIVERED:  25 October 2023
HEARING DATE:  3 April 2023
JUDGMENT OF:  Grant CJ, Barr & Brownhill JJ
CATCHWORDS:

SENTENCING – Appeals – Appeal against sentence – Manifest excess
Whether sentence to imprisonment manifestly excessive – Marked differences between appellant’s sentences and comparative cases – Sentences imposed plainly excessive – Appeal allowed.
CRIME – Appeals – Appeal against sentence – Misapplication of principle
Whether sentencing Judge misapplied mitigating principles relating to appellant’s intellectual and psychological deficit – Whether sentencing Judge failed to specifically apply and recognise the mitigating effect of appellant’s social disadvantage – Express reference made and weight given to intellectual deficit – No failure to take account of social disadvantage established – Appeal on these grounds dismissed.

Bugmy v The Queen (2013) 249 CLR 571, Edmond & Moreen v The Queen [2017] NTCCA 9, Emitja v The Queen [2016] NTCCA 4, Forrest v The Queen [2017] NTCCA 5, Markarian v The Queen (2005) 228 CLR 357, ML v The Queen (2018) 341 FLR 402, Phan v Western Australia [2014] WASCA 144, R v Stokes (1997) 138 FLR 137, The Queen v Kilic (2016) 259 CLR 256, The Queen v Koumis (2008) 18 VR 434, The Queen v Pham (2015) 256 CLR 550, The Queen v Ryan [2019] NTCCA 20, TM v The Queen [2017] NTCCA 3, Wiren v The Queen (1996) 5 NTLR 211, Wong v The Queen (2001) 207 CLR 584, referred to.
REPRESENTATION:

Counsel:
Appellant:  I L Read SC
Respondent:  M Aust
Solicitors:
Appellant:  Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions

Judgment category classification: B
Number of pages: 55

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

AB v The King [2023] NTCCA 8
No. CA 12 of 2022 (22040211 & 22121586)

BETWEEN:

AB
Appellant
AND:

THE KING
Respondent

CORAM: GRANT CJ, BARR and BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 25 October 2023)
THE COURT:

The appellant was 14 years old when he offended. He was sentenced to four years and six months’ imprisonment by the Supreme Court for two counts of aggravated robbery and one count each of property damage, unlawful entry and stealing. The issues in the appeal are whether the sentence was manifestly excessive or infected by specific error in the misapplication of the mitigating principles which operated in relation to the appellant’s personal circumstances of youth, intellectual deficit and social disadvantage.
The offences
Following pleas of guilty, on 19 November 2021 the appellant was convicted of the following charges:
(a)on file 22040211:
(i) a count of robbery, committed on 30 November 2020, aggravated by the circumstances that the appellant was in company with another…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v The King

Details

AGLC: AB v The King [2023] NTCCA 8
Case: [2023] NTCCA 8
Decision Date: 25 October 2023

CaseChat Overview and Summary

The appeal concerned the sentencing of AB, the appellant, by the sentencing judge. The King, the respondent, was represented by the Crown. The dispute centred on whether the sentences imposed upon AB were manifestly excessive and whether the sentencing judge had misapplied mitigating principles concerning AB's intellectual and psychological deficits and social disadvantage. The appeal was heard by Grant CJ, Barr and Brownhill JJ.

The primary legal issues before the Court were whether the sentences of imprisonment imposed on AB were so excessive as to demonstrate a manifest error in principle, and whether the sentencing judge had failed to properly consider or apply the mitigating factors of AB's intellectual and psychological deficits and his social disadvantage.

The Court found that the sentences imposed were demonstrably excessive when compared to comparable cases, leading to the conclusion that the sentencing judge had erred in principle. However, the Court dismissed the grounds of appeal relating to the misapplication of mitigating principles. It was held that the sentencing judge had made express reference to and given appropriate weight to AB's intellectual deficit. Furthermore, the Court found no evidence that the sentencing judge had failed to take into account AB's social disadvantage.

Consequently, the appeal against sentence was allowed, and the sentences were varied. The appeal on the grounds of misapplication of mitigating principles was dismissed.

Orders