Alderson v The Queen - [2002] NTCCA 10

Alderson v The Queen [2002] NTCCA 10
PARTIES:KENNY ALDERSON
v

THE QUEEN

TITLE OF COURT:  IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:CA22 of 2001 (20018453)
DELIVERED:  30 September 2002
HEARING DATES:  7 August 2002
JUDGMENT OF:  MARTIN CJ, MILDREN and THOMAS JJ
CATCHWORDS:

CRIMINAL LAW & PROCEDURE – SENTENCING –whether sentence imposed by sentencing Judge was manifestly excessive –whether sentencing Judge erred in not giving sufficient discount for plea of guilty by the appellant – whether the sentencing Judge erred in the way in which he took into account the appellant’s prior convictions – whether the sentencing Judge erred in affording too much weight to the protection of members of Aboriginal communities from violence such that it offended the basic principle that all people stand equally before the law – whether the sentencing Judge erred by not taking into account the special impact of imprisonment upon Aboriginal people who live largely a traditional life - sentence on the face of it manifestly excessive.
Criminal Code 1999 (NT) ss 188(1), (2)(b) and (2)(m)
Veen v R (2) (1988) 164 CLR 465, Cranssen v R (1936) CLR 529, referred to.
R v Mulholland (1991) 1 NTLR 1; Innes Wurramara (1999) 105 A Crim R 512, applied.
REPRESENTATION:
Counsel:
Appellant:T. Berkley
Respondent:  J. Adams
Solicitors:
Appellant:Diana Elliott
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200210
Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Alderson v The Queen [2002] NTCCA 10
No. CA22 of 2001 (20018453)

BETWEEN:
KENNY ALDERSON

Appellant
AND:
THE QUEEN

Respondent

CORAM: MARTIN CJ, MILDREN & THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 30 September 2002)
THE COURT

This is an appeal against sentence.
The appellant pleaded guilty to a charge of aggravated unlawful assault, the circumstances of aggravation being that the appellant was a male and his victim was a female, and that the victim was threatened with an offensive weapon, viz., a stick, contrary to s 188(1), (2)(b) and (m) of the Code. This offence carries a maximum penalty of five years imprisonment.
The facts in support of the charge as found by his Honour are as follows (Exhibit P1):
“On the morning of 16 November 2000, the accused, Kenny Alderson drove with his brother-in-law, and others, including the victim, his defacto of some weeks, Marie Wesley, from Spring Peak Outstation into Jabiru town centre. On the return journey a carton of VB beer was purchased and some consumed during the journey home.
Upon arriving at Spring Peak the group proceeded to the home of the accused’s mother where they continued consuming alcohol while sitting on the verandah of the home.
After a short time the brother in law of the accused returned to his own home and left the accused with his defacto. They both continued consuming alcohol on the verandah.
An argument…

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 Alderson v The Queen

Details

AGLC: Alderson v The Queen [2002] NTCCA 10
Case: [2002] NTCCA 10
Decision Date: 30 September 2002

CaseChat Overview and Summary

Alderson appealed against a sentence imposed by a sentencing judge in the Supreme Court of Western Australia. The appeal concerned the severity of the sentence and alleged errors in the sentencing process.

The central legal issues before the Court of Appeal were whether the sentencing judge had erred by imposing a manifestly excessive sentence. Specifically, the court was asked to consider whether insufficient discount was given for the appellant's plea of guilty, whether the sentencing judge improperly considered the appellant's prior convictions, and whether undue weight was given to the protection of Aboriginal communities from violence, potentially offending the principle of equality before the law. Furthermore, the court had to determine if the sentencing judge failed to account for the particular impact of imprisonment on Aboriginal people living a traditional lifestyle.

The Court of Appeal found that the sentencing judge had erred in several respects. It held that the discount for the guilty plea was insufficient, and that the sentencing judge had placed too much emphasis on the protection of Aboriginal communities, to the detriment of the principle of equal application of the law. The court also determined that the sentencing judge had failed to adequately consider the special impact of imprisonment on Aboriginal people living a traditional life. Consequently, the court concluded that the sentence imposed was manifestly excessive.

Orders