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Bukulaptji v The Queen

Bukulaptji v The Queen

Case [2009] NTCCA 7 5 June 2009

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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:

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.
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.
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.

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…

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 Bukulaptji v The Queen

Details

AGLC: Bukulaptji v The Queen [2009] NTCCA 7
Case: [2009] NTCCA 7
Decision Date: 5 June 2009

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