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Bara v The Queen

Bara v The Queen

Case [2016] NTCCA 5 2 December 2016

Appeal

Sentencing

Criminal Law

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Bara v The Queen [2016] NTCCA 5

PARTIES: BARA, Naamah

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:No. CA 3 of 2016 (21503400)
DELIVERED:  2 December 2016
HEARING DATES:  21 November 2016
JUDGMENT OF:  GRANT CJ, BARR and HILEY JJ
APPEALED FROM:  SOUTHWOOD J
CATCHWORDS:

CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Whether sentence breached the principle of parity having regard to the different objective and subjective circumstances of the appellant and co-offender –– whether sentencing judge fell into error by imposing the same head sentence on the appellant as had been imposed on the co-offender – no distinction properly made between the degrees of participation of each offender in the offence – the aggravating circumstance of offensive weapons was a “neutral factor” in the sentencing calculus for the offence in question, so diminishing the distinction between the relevant conduct of the appellant and the co-offender – a record of persistent offending will not necessarily attract a heavier sentence than a long record of offending punctuated by significant periods free of criminal conduct – not possible to say that because of differences in their criminal records the appellant’s sentence should have been less than the sentence imposed on the co-offender by some quantified or quantifiable period – a proper comparison between sentences requires a consideration of all components of each sentence – it is a legitimate consideration in assessing the appellant’s claim to a lack of parity to have regard to the fact that the sentencing court suspended the term of imprisonment imposed on him after he had served six months – to the extent that there was any disparity between the head sentences it was not so unjustified, significant or manifestly excessive as to warrant appellate intervention – appeal dismissed.

CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Whether sentence was manifestly excessive given the circumstances of the offending and the appellant –– having regard to the weight properly attached to the appellant’s criminal record and prospects for rehabilitation it could not be said that the head sentence imposed on him fell outside any sentencing range or standard – a review of comparative sentences does not disclose any patent discrepancy between the head sentence imposed and the general run of broadly analogous matters – the sentencing court took into account the objective and subjective factors relevant to the exercise of the sentencing discretion without inappropriate individual consideration – appeal dismissed.
Criminal Code (NT) s 210, s 211, s 213
Sentencing Act (NT) s 3, s 40(3), s 52, s 78C
Lowe v The Queen (1984) 154 CLR 606, Postiglione v The Queen(1997) 189 CLR 295, applied.
Dinsdale v R (2000) 202 CLR 321, Donovan v The Queen [2010] VSCA 169, Emitja v The Queen [2016] NTCCA 4, Green v R (2011) 244 CLR 462, Gumurdul v Reinke [2006] NTSC 27,

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 Bara v The Queen

Details

AGLC: Bara v The Queen [2016] NTCCA 5
Case: [2016] NTCCA 5
Decision Date: 2 December 2016

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Bara, following his conviction for property offences. The appeal was heard by Grant CJ, Barr and Hiley JJ.

The primary legal issues before the court were whether the sentence imposed on the appellant breached the principle of parity with a co-offender, and whether the sentence was manifestly excessive given the circumstances of the offending and the appellant. Specifically, the court considered whether the sentencing judge erred by imposing the same head sentence on the appellant as was imposed on the co-offender, and whether the appellant's criminal record and prospects for rehabilitation justified the sentence.

The court reasoned that a comparison of sentences requires consideration of all components of each sentence, including any suspension of a term of imprisonment. The presence of offensive weapons was considered a neutral factor that diminished the distinction between the offenders' conduct. While a record of persistent offending was noted, it was held not to necessarily attract a heavier sentence than a long record punctuated by periods of good behaviour. The court found that it was not possible to quantify a period by which the appellant's sentence should have been less than the co-offender's based solely on differences in their criminal records. Ultimately, the court concluded that to the extent any disparity existed between the head sentences, it was not so unjustified, significant, or manifestly excessive as to warrant appellate intervention. Furthermore, considering the weight of the appellant's criminal record and rehabilitation prospects, the head sentence was not found to fall outside any sentencing range or standard, nor was there a patent discrepancy with broadly analogous matters. The sentencing court was found to have appropriately considered objective and subjective factors.

The appeal was dismissed.

Orders