Anderson v The Queen - [2014] NTCCA 18

Anderson v The Queen [2014] NTCCA 18
PARTIES:ANDERSON, Luke

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CCA 27 of 2013 (21311483)
DELIVERED:  5 DECEMBER 2014
HEARING DATES:  9 APRIL and 30 JUNE 2014
JUDGMENT OF:  BLOKLAND, BARR & HILEY JJ
APPEALED FROM:  RILEY CJ
CATCHWORDS:

CRIMINAL LAW – Appeal – Sentencing – Relevant sentencing factors – Rehabilitation – Sentencing judge did not err in characterising prospects of rehabilitation as “reasonable”.
CRIMINAL LAW – Appeal – Sentencing – Manifest excess – Sentence appropriately reflected sentencing objectives.
CRIMINAL LAW – Appeal – Sentencing – Relevant sentencing factors – Juvenile offender – Failure to order a pre-sentence report – Powers and duties of Supreme Court when sentencing youths – Application of s 69 of Youth Justice Act (NT) – Consideration as to meaning of “Court” in Youth Justice Act (NT) – Supreme Court not mandated to apply Youth Justice Act (NT) when sentencing youths – Primary powers and duties of Supreme Court in sentencing contained in Sentencing Act (NT) – Sentencing judge did not err in failing to request a pre-sentence report – Necessary information was before the court.
CRIMINAL LAW – Appeal – Sentencing – Manifest excess – Non-parole period – Juvenile offender – No minimum non-parole period in Youth Justice Act (NT – Non-parole period manifestly excessive – Appeal allowed in part – Appellant resentenced – Non-parole period reduced from four years and six months to three years.

Youth Justice Act 2005 (NT), s 3, 5, 57, 69, 70, 82, 82(1), 82(1)(b), 82(2), 83, 83(2), 83(5), 85.
Sentencing Act 1995 (NT), s 4, 39A, 40(1), 48A, 54, 55, 55(1), 55A, 70(1)(n), 105, 106, 106(1)(k).

R v Gurruwiwi (2008) 22 NTLR 68; Wesley v The Queen [2014] NTCCA 17, applied.
Manning v Police (1993) 59 SASR 427; Nelson v Chute (1994) 72 A Crim R 85, distinguished from.

Braun and Ebatarintja v The Queen (1997) 6 NTLR 94; Fowler v The Queen [2002] WASCA 296; Gavin v The Queen (1992) 6 WAR 195l Topic v The State of Western Australia [2013] WASCA 157; W (1990) A Crim R 72, referred to.
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent:  M Nathan
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   B
Number of pages:  13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Anderson v The Queen [2014] NTCCA 18

No. CCA 27 of 2013 (21311483)
BETWEEN:

Luke Anderson

Appellant

AND:

The Queen

Respondent

CORAM: BLOKLAND, BARR & HILEY JJ
REASONS FOR JUDGMENT
(Delivered 5 December 2014)
THE COURT:
Introduction

On 3 October 2013 the appellant was sentenced to six years and four months detention / imprisonment with a non-parole period of four years and six months for the crime of sexual intercourse without consent. At the time of the offending the appellant was 17…

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 Anderson v The Queen

Details

AGLC: Anderson v The Queen [2014] NTCCA 18
Case: [2014] NTCCA 18
Decision Date: 5 DECEMBER 2014

CaseChat Overview and Summary

This appeal concerned the sentencing of a juvenile offender, Anderson, who pleaded guilty to a serious sexual offence. The appeal was heard by Blokland, Barr, and Hiley JJ. The central dispute revolved around whether the sentence imposed, particularly the non-parole period, was manifestly excessive and whether the sentencing judge had erred in his approach to sentencing a youth.

The legal issues before the court included whether the sentencing judge had correctly assessed the appellant's prospects of rehabilitation, whether the Supreme Court was mandated to apply the provisions of the *Youth Justice Act (NT)* when sentencing youths, and specifically, whether the judge erred in failing to order a pre-sentence report. The court was also required to determine if the non-parole period was manifestly excessive given the appellant's age and circumstances.

The Full Court reasoned that while the Supreme Court had the power to exercise the functions of the Youth Justice Court, it was not mandated to do so and its primary sentencing powers were derived from the *Sentencing Act (NT)*. The court found that the sentencing judge had sufficient information before him to make his sentencing determination and therefore did not err in failing to order a pre-sentence report. The court acknowledged the seriousness of the offence and the sentencing judge's assessment of reasonable rehabilitation prospects, noting that such prospects must be viewed in the context of the nature of the offending. However, the court concluded that the non-parole period of four years and six months was manifestly excessive.

Consequently, the appeal was allowed in part. The non-parole period of four years and six months was set aside and replaced with a non-parole period of three years, commencing from 8 September 2013.

Orders

Orders of the court

The appeal is allowed in part. We set aside the non-parole period of four years and six months. We instead set a non-parole period of three years commencing 8 September 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Because s 82(1) of the Act authorised the Supreme Court to exercise powers of the Youth Justice Court in addition to its normal powers, his Honour could have exercised the powers contained in the s 83 of the Act and those which followed, including the fixing of a non-parole period under s 85, unconstrained by the minimum non-parole periods mandated by ss 54 to 55A of the Sentencing Act.[6] Consideration The appellant was born on 22 December 1995. At the time of offending in March 2013 he was just under 17 years and three months old. When sentenced in October 2013 he was 17 years and nine months old. He had a solid employment record from the time he left school at the age of 15 and had never been in trouble with the law. The learned sentencing judge considered that his rehabilitation prospects were reasonable. That assessment by his Honour must be seen in the context of sexual offending against a young child, a context in which good family support and a good record of employment did not necessarily indicate good rehabilitation prospects, as they might, for example, in the case of a first property offence or driving offence. The penile/anal penetration of an eight-year-old girl was a very serious offence. Moreover, it was a disturbing offence, as the learned sentencing judge made clear in his sentencing remarks: “It is unclear why you acted as you did, other than to seek a sexual gratification. There is no explanation as to why a young man such as yourself, who is otherwise well respected, would undertake this very serious offending. It is difficult, in those circumstances, to determine your prospects for rehabilitation. However, given your age, your expression of sorrow for your actions, your acceptance of responsibility (albeit belated),[7] and your lack of any relevant history, for present purposes I regard you as having reasonable prospects for rehabilitation. However, notwithstanding your lack of any criminal history and the matters that I have just discussed, it seems to me that, in the absence of any explanation of your conduct, I must give emphasis to the need for personal deterrence.This was very serious offending. Your victim was just eight years of age and you were, in effect, an older family member. You were in a position of trust. She had every right to expect you to look after her and protect her. You breached the trust in the most serious way. The offending occurred in circumstances where you took the time and the precaution to move the other children from the scene and to take your victim into the laundry. There was a degree of pre-planning and premeditation. You sought to hide what you are doing. You knew it was wrong, but you persisted.” His Honour acknowledged in his sentencing remarks that the offence could have been more serious in terms of the extent of penetration and the pain and harm caused. His Honour’s remarks make clear that he understood that the incident was of short duration and that the injuries suffered by the child were relatively minor and would not be long-standing. His Honour also made mention of the fact that there had been no additional gratuitous violence beyond the violence constituting the offence itself.