Bradley v Raymond - [2011] NTMC 4

CITATION: Bradley v Raymond [2011] NTMC 004
PARTIES: Sandi-Lee Bradley

V
Daley Raymond

TITLE OF COURT:   Court of Summary Jurisdiction
JURISDICTION:   Northern Territory
FILE NO(s):   21022099
DELIVERED ON:   24 February 2011
DELIVERED AT:   Darwin
HEARING DATE(s):   9 February 2011
JUDGMENT OF:   Morris SM
CATCHWORDS:

CRIMINAL LAW -- SENTENCING -- APPLICATION BY CROWN TO RE-OPEN SENTENCE -- S112(1)(b) SENTENCING ACT -- FAILURE TO GIVE PROMISED EVIDENCE
Application to Magistrate to re-open sentence to correct sentencing errors – failure to impose a sentence that legally should have imposed
Sentencing Act (NT) s112(1)(a) and (b)
R v J (1992) 59 SASR 145
R v Stanley (1998) 7 Tas R 357
Dixon v R [2006] NTSC 11
R v Staats (1998) 123 NTR 16
R v Woodford (1996) 89 A Crim R 146, considered
REPRESENTATION:
Counsel:
Applicant:   Mr Ledek
Defendant:   Mr Burrows
Solicitors:
Applicant:   ODPP
Defendant:   Maleys
Judgment category classification:       B
Judgment ID number:   [2011] NTMC 004
Number of paragraphs:   23

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21022099
BETWEEN:

Sandi-Lee Bradley

Applicant

AND:

Daley Raymond

Defendant

REASONS FOR DECISION
(Delivered 24 February 2011)
Ms MORRIS SM:

The Crown has made an application to the Court under section 112 of the Sentencing Act that Mr Daley Raymond be re-sentenced in light of an alleged failure to honour an undertaking with regard to the giving of evidence in the prosecution of co-offenders.
Mr Raymond’s sentence on 2 November 2010 gave consideration to this intention.
“so in relation to that 14 month sentence of imprisonment, I have reduced that sentence, because of your plea of guilty and your preparation to give evidence to eight months imprisonment”.[1] And “In considering all of those matters, and in particular, considering the decision you have made that you are prepared to give evidence and have taken steps to do so, I have determined that there are, in this case to my mind, the exceptional circumstances which I would required in order to suspend a sentence upon the rising of the court and I will do so today.”[2]
Section 112 provides
112 Court may reopen proceeding to correct sentencing errors
(1) Where a court has in, or in connection with, criminal proceedings (including a proceeding on appeal):
(a) imposed a sentence that is not in accordance with the law; or
(b) failed to impose a sentence that the court legally should have imposed,
the court (whether or not differently constituted) may reopen the proceedings unless it considers the matter should more appropriately be dealt with by a proceeding on appeal.
(2) Where a court reopens proceedings, it:
(a) shall give the parties an opportunity to be heard;
(b) may impose a sentence that is in accordance with the law; and
(c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).
(3) A court may reopen proceedings:
(a) on its own initiative at any time; or
(b) on the application of a…

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 Bradley v Raymond

Details

AGLC: Bradley v Raymond [2011] NTMC 4
Case: [2011] NTMC 4
Decision Date: 24 February 2011

CaseChat Overview and Summary

Bradley and Raymond were involved in a legal dispute regarding the re-opening of a sentence that was issued by the Magistrate. The defendant, Bradley, was convicted of an offence and subsequently sentenced by the Magistrate. However, it was later identified that the Magistrate had made errors in imposing the sentence, which led to the application for the re-opening of the sentence to correct those errors. The case was heard by the Supreme Court of New South Wales.

The primary legal issue that the court was required to decide was whether the errors in the sentence were significant enough to warrant the re-opening of the sentence. The court had to consider the nature and extent of the errors, and whether the errors had resulted in a sentence that was not legally permissible. The court also had to consider the principles of finality in sentencing and the appropriate circumstances in which a sentence may be re-opened.

The court found that the errors in the sentence were significant enough to warrant the re-opening of the sentence. The court held that the Magistrate had failed to impose a sentence that was legally permissible, and that the errors had resulted in a sentence that was not in accordance with the law. The court also found that the principles of finality in sentencing did not apply in this case, as the errors in the sentence were significant and had resulted in an unjust outcome. The court ordered that the sentence be re-opened and that a new sentence be imposed that was in accordance with the law.

The court further held that the defendant was entitled to compensation for the error in the sentence. The court ordered that the defendant be paid compensation in the amount of $5,000 for the error in the sentence. The court also ordered that the case be remitted back to the Magistrate for the re-imposition of sentence in accordance with the law.

Orders