Andreou v Woodward
[2020] NTSC 34
•26 May 2020
CITATION:Andreou v Woodward [2020] NTSC 34
PARTIES:ANDREOU, Andreas
v
WOODWARD, Jack
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 11 of 2020 (21938222)
DELIVERED ex tempore: 26 May 2020
HEARING DATE: 26 May 2020
JUDGMENT OF: Hiley J
CATCHWORDS:
CRIME – Appeals – Appeal from Local Court to Supreme Court – Appeal by prosecutor against failure to apply mandatory sentencing provisions under s 77DD of the Sentencing Act – Powers of Supreme Court under s 177(2) of the Local Court (Criminal Procedure) Act – Whether appeal can and should be dismissed and remitted to Local Court for determination under s 112 of the Sentencing Act – Whether matter should be remitted to the same judge – Appeal allowed, sentence quashed and matter remitted to Local Court.
SENTENCING – Failure to apply mandatory sentencing provisions under s 78DD of the Sentencing Act – Power of Supreme Court to require Local Court to correct error by applying s 112 of the Sentencing Act.
Local Court (Criminal Procedure) Act 1928 (NT), s 177(2).
Sentencing Act 1995 (NT), s 43, s 78DD, s 78DG, s 78DI, s 112Gordon v Firth (Unreported, Local Court Appeal 19 of 2018, Supreme Court of the Northern Territory, Southwood J), R v RG [2018] NTSC 85, referred to
REPRESENTATION:
Counsel:
Appellant:R Everitt
Respondent: A Abayasekara
Solicitors:
Appellant:Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Hil2009
Number of pages: 9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAndreou v Woodward [2020] NTSC 34
No. LCA 11 of 2020 (21938222)
BETWEEN:
ANDREAS ANDREOU
Appellant
AND:
JACK WOODWARD
Respondent
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered ex tempore 26 May 2020)
Introduction
This is an appeal against a decision of the Local Court, constituted by Judge Neill. On 21 February 2020, the Court convicted the respondent of two offences, one being the aggravated assault of the victim, the second being stealing from the victim. Both offences were committed on 14 September 2019. His Honour sentenced the respondent to a good behaviour bond for a period of 12 months on the aggravated assault charge, and imposed no further penalty in respect of the stealing charge, and aggregated that with the sentence for the aggravated assault.
The prosecutor has brought this appeal on two grounds:
(a)first, that the judge erred in finding that he was not required to impose a minimum sentence of three months actual imprisonment pursuant to s 78DD of the Sentencing Act1995 (NT); and
(b)second, that the sentence imposed was manifestly inadequate.
His Honour did not actually find that he was not required to impose a minimum sentence. However, the respondent correctly conceded that the judge did err in failing to apply the mandatory sentencing provisions in s 78DD of the Sentencing Act. Unfortunately, the error arose as a result of the prosecutor telling the judge that the respondent’s previous conviction for robbery did not trigger the operation of s 78DD. It did.
As a consequence of this error, the respondent’s sentence must be corrected. Accordingly, there is no utility in this court considering and determining ground 2.
Normally, a sentence that has been vitiated by error following a successful appeal is corrected by the appellate court or by the court appealed from following remittal under a provision such as s 177(2)(d) of the Local Court (Criminal Procedure) Act1928 (NT). This is normally done by resentencing the offender, following further submissions on sentence.
Unless the resentencing can take place without occupying too much of the appellate court’s time and resources, it is usually considered appropriate for the matter to be remitted to the court appealed from. In many cases one might expect that that court would already have received relevant evidence and submissions, and could then proceed with the resentence by way of “further hearing”, as distinct from starting the hearing afresh.
Three issues were raised in the course of submissions this morning. Firstly, counsel for the respondent submitted that rather than allow the appeal and resentence the respondent, I should dismiss the appeal and remit it to the judge for reconsideration under s 112 of the Sentencing Act. That submission raises two of the three issues that I have just alluded to:
(a)First, the power of this court to dismiss an appeal, notwithstanding that the point raised in the appeal, might be decided in favour of the appellant. That takes us to s 177(2)(f).
(b)Second, the power of this court to remit the matter and require the Local Court to use its powers under s 112 of the Sentencing Act in order to correct its own error.
The third issue arises from the Crown’s contention that the matter should be remitted to a different judge, and conversely, the submission made by counsel for the respondent that it should be remitted to the same judge.
In relation to the first two issues, counsel for the respondent referred to orders made by Southwood J on 31 July 2018 in Gordon v Firth (Unreported, Local Court Appeal 19 of 2018, Supreme Court of the Northern Territory, Southwood J). I understand that it was common ground in that case that the Local Court judge had erred by purporting to resentence the appellant for breaching an order suspending a sentence on account of his reoffending, a course which the judge had no power to adopt. Notwithstanding that error, Southwood J dismissed the offender’s appeal and remitted the matter back to the Local Court for the offender to be dealt with under s 112 of the Sentencing Act. Presumably, this meant that the Local Court could deal with the breach of the suspended sentence under s 43 of the Sentencing Act, exercising one of the powers stipulated in s 43(5). I do not have the benefit of any reasons expressed by his Honour when he made those orders. In particular I do not know whether and how his Honour applied s 177(2)(f).
In the present case I do not consider that “no substantial miscarriage of justice … actually occurred”, to use the words in s 177(2)(f). Had the error not been made, the judge would have been required to impose the minimum period of three months’ actual imprisonment mandated by s 78DD(2), unless those representing the offender made submissions and convinced his Honour that “exceptional circumstances”[1] existed. Even then, his Honour would still have been required to impose a period of actual imprisonment.[2] In my view there was a substantial miscarriage of justice, and s 177(2)(f) does not apply.
Even if I was wrong about that and s 177(2)(f) did apply, I see no reason to exercise the discretion imposed under that provision in favour of dismissing the appeal. Accordingly, I allow the appeal.
I also consider that the matter should be remitted to the Local Court for resentencing, rather than this court hearing submissions and resentencing the respondent.
The second issue that I have mentioned concerns s 112 of the Sentencing Act. This issue raises two sub-issues.
The first sub-issue concerns the power of this court to require the Local Court to reopen the proceedings and apply s 112. It seems that the only power of possible relevance is s 177(2)(d) which permits this court to remit the case for hearing or for further hearing. Arguably, this court does not have the power to compel the Local Court to exercise its powers in a particular way, such as, for example, under s 112. Also, as I have allowed the appeal, rather than dismissed it, there will be no sentence upon which s 112 can operate.
The second sub-issue concerns the power of the Local Court to use s 112 in circumstances such as the present. With respect, I agree with the views expressed by the Chief Justice in R v RG [2018] NTSC 85, and in particular, paragraphs [11] to [13], and the kind of limitations referred to in [13].
I am not convinced that the power extends to circumstances such as the present. Firstly, it seems that the respondent will be asking the Local Court not just to correct the error, that is by applying s 78DD, but also to consider the issue of exceptional circumstances and fix a lower penalty. Second, in this case, an appeal has already been brought and heard, without any application having previously been made to the Local Court to exercise its powers under s 112. I note that there are certain limitations upon the ability of a court to exercise its powers under s 112 and upon the ability of a party to make an application for the exercise of such power. Under s 112(3), a party is required to make an application within 28 days of the sentence. Having said that, the court that is being asked to exercise its jurisdiction under s 112 does have the power to extend time as it thinks fit. It also has the power to exercise its powers under s 112 of its own motion.
Even if those powers existed, that is, power for this court to require the Local Court to use s 112 and power for the Local Court to use s 112 in circumstances such as the present, the next question is whether I should order the Local Court to proceed in that way, rather than adopt the normal course of remitting the matter to the Local Court for it to resentence the offender in the normal way.
Counsel referred to the scope of the power conferred by s 112 and pointed out that one of its purposes is to avoid, or to the relieve appellate courts of, unnecessary duplication of work. Even if s 112 was still available, the fact that the appeal has now been brought, written submissions filed and the hearing embarked upon, means that that particular objective of s 112 is not relevant in the present matter. In any event, it is not as though the parties would be left without remedies. As I have said, this court has the power to remit the matter to the Local Court once error has been found, and the Local Court then has the power to hear the matter.
Even if I did have the power to make the orders requested by counsel for the respondent, I decline to do so. This is particularly so in the present circumstances, where the respondent is likely to request the sentencing judge to go beyond correcting the error, and to embark upon the process of considering exceptional circumstances. In addition to requiring additional submissions, such consideration might also involve the adducing of further evidence, whether it be from the bar table or otherwise.
Accordingly, I remit the matter for further hearing by the Local Court.
The third main question ventilated this morning was whether the matter should be remitted to the same judge. Counsel for the Crown contended that because his Honour has already reached certain views about the seriousness of the offending and the appropriate penalties, his Honour may have some difficulty reconsidering the matter afresh and reaching different conclusions. Counsel also referred to the contentions that she made in relation to ground 2, to the effect that the sentence originally imposed was manifestly inadequate. Whilst at first blush there would seem to be some force in the Crown’s submissions on that topic, I have not fully considered all of the submissions and in particular all the submissions made on behalf of the respondent. Accordingly, I have not reached an informed conclusion about the adequacy or otherwise of the sentence that was imposed.
I have no reason to believe that, even if an application is made for his Honour to find exceptional circumstances and his Honour finds that exceptional circumstances existed, his Honour would not apply appropriate sentencing principles in the course of sentencing the respondent. The prosecutor would be able to make appropriate and necessary submissions in relation to sentence, including those that it would have advanced if ground 2 was still alive.
Having said that, whoever does hear the matter would have to peruse all the relevant materials, and hear and consider counsel’s submissions, afresh, particularly those concerning exceptional circumstances and the penalty that would be appropriate in the event that they were not established.
I see no reason to interfere with the ability of those responsible for allocating matters in the Local Court, to list the matter for rehearing before any judge of that court.
I therefore make the following orders:
1.The appeal is allowed;
2.The sentence is quashed; and
3.The matter is remitted to the Local Court for hearing.
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[1] See s 78DI of the Sentencing Act.
[2] See ss 78DI(2)(b) and 78DG(b) of the Sentencing Act.
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