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Sean Henry Bond v Robert Roland Burgoyne [2005] NTSC 51

PARTIES: SEAN HENRY BOND
v

ROBERT ROLAND BURGOYNE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 15/ of 2005, 20212924, 20322974

DELIVERED: 14 September 2005

HEARING DATES: 31 August 2005

DECISION OF: OLSSON AJ

CATCHWORDS:
APPEAL

Justices - appeals against sentences - multiple offences under Misuse of Drugs Act and the Firearms Act - offender extradited from another State when released on parole in relation to sentence served there - restoration of previous Territory sentence - pleas of guilty to eleven Territory offences committed prior to going interstate - failure to answer to Territory bail when taken into custody interstate - whether various sentences ought to be served cumulatively or concurrently - whether proper plea discount allowed - whether reasons ought to have been given for departure from minimum non parole period - application of totality principle to multiple offences especially where custodial sentences imposed end on to sentence served in another State - delay in Territory sentencing due to service of interstate sentence - whether allowance made for more onerous conditions whilst on remand awaiting sentence - relevance of evidence of rehabilitation whilst serving interstate sentence - whether sentences imposed manifestly excessive.

REPRESENTATION:

Counsel:
Appellant: R. Goldflam
Respondent: R. Noble

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Number of pages: 22
Judgment ID Number Ols05004

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Sean Henry Bond v Robert Roland Burgoyne [2005] NTSC 51
No JA 15 of 2005, 20212924, 20322974

BETWEEN:

Sean Henry Bond
Appellant

AND:

Robert Roland Burgoyne
Respondent

CORAM: OLSSON AJ

REASONS FOR DECISION

(Delivered 14 September 2005)

Introduction

[1] In this matter the appellant appeals against sentences imposed on him on 25 February 2005 by the then Deputy Chief Magistrate in respect of a variety of offences under the Misuse of Drugs Act and the Firearms Act, to be served cumulatively upon the restoration of a prior suspended sentence. It is asserted that the ultimate effective sentence was manifestly excessive in the circumstances.

[2] It is particularly complained that, in adopting the relevant sentencing strategy, the learned Deputy Chief Magistrate:

2.1 Failed to have regard to and make due allowance for the appellant's pleas of guilty;

2.2 Did not justify the fixation of a non-parole period of 14 months.;

2.3 Failed to have proper regard to the totality principle;

2.4 Did not give sufficient weight to the more onerous nature of a substantial period served in custody on remand; and

2.5 Failed to recognise and make due allowance for the rehabilitative steps taken by the appellant whilst in custody in New South Wales.

[3] In order to place the submissions on behalf of the appellant in a proper perspective it is first necessary to address his…

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 Bond v Burgoyne

Details

AGLC: Bond v Burgoyne [2005] NTSC 051
Case: [2005] NTSC 51
Decision Date: 14 September 2005

CaseChat Overview and Summary

Sean Henry Bond appealed against the sentences imposed on him by the Deputy Chief Magistrate for various drug and firearm offences committed prior to his extradition from New South Wales. The appellant contended that the sentences were manifestly excessive and that the sentencing magistrate had failed to properly consider the totality principle, the time spent on remand, and the rehabilitative efforts made while in custody in New South Wales. The Supreme Court found merit in the appeal and set aside the original sentences. The court considered that the appellant's pleas of guilty, the more onerous conditions during his time on remand, and the rehabilitative activities undertaken while in New South Wales' custody warranted a reduced sentence. The court re-exercised its sentencing discretion and imposed a head sentence of 16 months imprisonment, to commence on 5 December 2004, with a non-parole period of eight months. The sentences were to be served cumulatively upon the restored six-month suspended sentence for the 2002 offences and concurrently with the unlawful possession sentence.

The court found that the sentencing magistrate had not properly considered the totality principle, the appellant's time spent on remand, and the evidence of rehabilitation while in New South Wales custody. The appeal was allowed, and the original sentences were set aside. The Supreme Court imposed a new head sentence of 16 months imprisonment, to commence on 5 December 2004, with a non-parole period of eight months. The sentences were to be served cumulatively upon the restored six-month suspended sentence for the 2002 offences and concurrently with the unlawful possession sentence.

Orders