Bukulaptji v The Queen

Case [2009] NTCCA 7


Bukulaptji v The Queen [2009] NTCCA 7

PARTIES:  KEVIN BUKULAPTJI
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:  CA 13 of 2008 (20507179)
DELIVERED:  5 June 2009
HEARING DATES:  24 April 2009
JUDGMENT OF:  MARTIN (BR) CJ, THOMAS AND
RILEY JJ
APPEALED FROM:  SOUTHWOOD J
CATCHWORDS: 

CRIMINAL LAW – APPEAL – APPEAL AGAINST RESTORATION OF
SENTENCE

Requirement of s 43(7) of Sentencing Act – whether full restoration was unjust – breach of conditions – no new offending – disparity between nature of breach and time to be served – appeal allowed – new offence subsequent to breach proceedings – full restoration

Criminal Code s 69; Sentencing Act (NT) s 40, s 43, s 43(7)
Baird v R (1991) 104 FLR 113; Buckman (1988) 47 SASR 303; Davies v
Deverell (1992) 1 Tas R 214; Marston (1993) 60 SASR 320; Palliaer (1983)
35 SASR 569; R v Percy [1975] Tas SR 62; Wilson v Taylor (1997) 113
NTR 1, referred to
R v Fernando [2002] NSWCCA 28; Lawrie v R (1992) 59 SASR 400; R v

Vranic (NSWCCA, 7 May 1991, unreported), discussed

REPRESENTATION:

Counsel:

 Appellant:  S Perera
Respondent:  J Karczewski QC

Solicitors:

Appellant:  North Australian Aboriginal Justice
Agency
Respondent:  Office of the Director of Public
Prosecutions

Judgment category classification: B

Judgment ID Number:  Ril0906
Number of pages:  20

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

AT DARWIN

Bukulaptji v The Queen [2009] NTCCA 7

No. CA 13 of 2008 (20507179)

BETWEEN:

KEVIN BUKULAPTJI

Appellant

AND:

THE QUEEN

Respondent

CORAM:  MARTIN (BR) CJ, THOMAS AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 5 June 2009)

Martin (BR) CJ:

  1. On 2 January 2008 the appellant was sentenced to four years imprisonment,

    backdated to 22 February 2007, for the crime of unlawfully causing grievous

    harm. That sentence was suspended after the appellant had served

    15 months on conditions involving supervision.

  2. The appellant was released from prison on 22 May 2008 with a balance of

    the sentence of two years and nine months imprisonment yet to be served.

    He immediately breached conditions of the suspension. On 10 November

    2008 the learned sentencing Judge restored the balance of the sentence and

    fixed a non-parole period of one year and five months.

  3. The appellant accepts that part of the outstanding balance of two years and

nine months should have been restored, but appeals against the restoration
of the entire balance on the basis that the sentencing Judge erred in not
finding that it was unjust to do so.
  1. The facts are set out in detail in the judgment of Riley J. Section 43(7) of the Sentencing Act required that the Judge restore the entire balance and

order that the appellant serve it unless the Judge was “of the opinion that it
would be unjust to do so” in view of all the circumstances that had arisen
since the…

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Bukulaptji v The Queen [2009] NTCCA 7
Case
[2009] NTCCA 7
Decision Date

CaseChat Overview and Summary

The case of *Bukulaptji v The Queen* concerned an appeal to the Court of Criminal Appeal of the Northern Territory. The appellant, Kevin Bukulaptji, had been sentenced to four years imprisonment for unlawfully causing grievous harm, with 15 months of that sentence suspended after he had served that period. He was released on a balance of two years and nine months imprisonment, subject to certain conditions. The appellant subsequently breached these conditions, leading to the sentencing judge restoring the entire balance of the suspended sentence. The appeal challenged this full restoration, arguing it was unjust.

The central legal issue before the Court of Criminal Appeal was whether the sentencing judge erred in restoring the entire balance of the suspended sentence. Specifically, the court had to determine if, in light of the circumstances arising after the suspended sentence was imposed, it was unjust to order the appellant to serve the full remaining period. The court was required to consider the legislative policy underpinning suspended sentences and the consequences of breaching their conditions, as stipulated by section 43(7) of the *Sentencing Act* (NT).

The Court of Criminal Appeal, in dismissing the appeal, reasoned that the appellant had failed to demonstrate that the sentencing judge's decision was not open to them. While acknowledging a disparity between the nature of the breach and the length of the restored sentence, the court found this was insufficient to render the full restoration unjust. The appellant's breach occurred immediately upon release and was characterised as "contumelious" and persistent, with no subsequent effort to rectify the default. The court emphasised the importance of upholding the integrity of the sentencing regime and the legislative policy concerning suspended sentences, particularly given the appellant's prior disregard for court orders and the fact that compliance with conditions would not have prevented him from attending his mother's funeral.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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