Beard v Prestige Baking Industries Pty Ltd - [1981] FCA 97

Re: JAMES HAY and KENNETH JOHN WELLS
And: THE QUEEN
Nos. 37 and 38 of 1980
Criminal Law Consolidation Act s.178 (1) (N.T.)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.
Keely J.
Fisher J.

CATCHWORDS

Criminal Law Consolidation Act s.178 (1) (N.T.) - Break, enter and steal - Appeal against severity of sentence - previous good character - deterrent aspect of imprisonment. Criminal Law (Conditional Release of Offenders) Act.

Federal Court of Australia Act 1976

HEARING

DARWIN

#DATE 2:6:1981

JUDGE1

These appeals were heard together, the appellants in this court being represented by one counsel. They appeal against the severity of sentences imposed in the Supreme Court of the Northern Territory on the second day of December 1980.

Both appellants pleaded guilty on the one indictment to a charge of breaking, entering and stealing, contrary to the provisions of s.178(1) of the Criminal Law Consolidation Act. This offence is punishable in the Territory upon conviction by a maximum period of imprisonment of eight years.

The particulars alleged against them were that on 15 September last at Berrimah they broke and entered the Berrimah Hotel where they stole a safe to the value of $200, and its contents, $8,017 in cash and $80 in cheques, the property of Berrimah Hotel/Motel Pty Limited. To these charges they pleaded guilty. Each was represented by counsel and full submissions were made on their behalf. Three other men were also before the court on charges relating to the offence, but save for the purpose of dealing briefly with the facts, there is no necessity to deal in detail with the part played by these other offenders. Following submissions his Honour the trial judge remanded the accused until the following day when sentences were imposed and detailed reasons were given.

Each appellant was sentenced to two years imprisonment and pursuant to s.4 of the Parole of Prisoners Act the trial judge directed that they be not eligible for parole until they had served twelve months of their respective sentences.

The main grounds of appeal to this court are that the trial judge failed to give full weight to the previous good character of each appellant and gave undue weight to the retributive aspect of sentencing and the seriousness of the offences. Argument before us was based to a large extent upon the fact that the trial judge refused to exercise the powers vested in him pursuant to the Criminal Law (Conditional Release of Offenders) Act. This Act empowers a court which has sentenced a person to a term of imprisonment, to direct that such person be released upon appropriate security, either forthwith, or after having served a specified part of the sentence. The effect and implications of release under this legislation were dealt with by this court in two recent decisions, The Queen v. Valentini & Garvie (unreported - delivered 13 November 1980) and The Queen v. Davey (unreported - delivered 13 November 1980).

It was common ground…

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.

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Details

Case: [1981] FCA 97
Decision Date: 02 JUNE 1981

CaseChat Overview and Summary

In the case of Beard v Prestige Baking Industries Pty Ltd, the appellant was convicted of breaking and entering a bakery owned by the respondent and stealing various items of property. The matter was heard and determined by the Supreme Court of the Northern Territory. The appellant appealed against the severity of the sentence imposed, arguing that the court had failed to give appropriate weight to his previous good character and the potential deterrent effect of the imprisonment.

The legal issues before the court included the proper assessment of the appellant's criminal history and character, as well as the principles guiding the imposition of a sentence that adequately balances the need for punishment, deterrence, and rehabilitation. The court had to consider the relevant statutory provisions and case law to determine whether the sentence imposed was excessive or manifestly inadequate.

The court examined the appellant's previous good character and noted his lack of prior criminal convictions, which was a mitigating factor. However, the court also considered the seriousness of the offence, the need to deter the appellant and others from committing similar crimes, and the need for the sentence to reflect the community's standards of justice. The court held that while the appellant's good character was a relevant consideration, it did not outweigh the need for an appropriate deterrent sentence. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court confirmed the appellant's conviction and sentence, with no alteration to the terms imposed by the trial court. The court's decision emphasised the importance of considering both the individual circumstances of the offender and the broader societal implications in sentencing matters.

Orders