Burness v Yunupingu - [2003] NTSC 4

Burness v Yunupingu [2003] NTSC 4
PARTIES:JOSEPHINE LEAH BURNESS
v

JOSEPH GARRKANA YUNUPINGU

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 50 of 2002 (20110442)
DELIVERED:  30 January 2003
HEARING DATE:  28 January 2003
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:M Carey
Respondent:  S Musk
Solicitors:
Appellant:DPP
Respondent:  NAALAS
Judgment category classification:    C
Judgment ID Number:  bai0301
Number of pages:  11

bai0301
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Burness v Yunupingu [2003] NTSC 4
No. JA 50 of 2002 (20110442)

BETWEEN:
JOSEPHINE LEAH BURNESS

Appellant
AND:
JOSEPH GARRKANA YUNUPINGU

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 31 January 2003)

On 8 May 2002, the respondent was convicted upon his pleas of guilty to three charges of assault. The three offences were committed on 4 July 2001. The first charge was aggravated by reason that the respondent’s victim, Fagan Yunupingu, was threatened with offensive weapons, namely petrol and a lighter. The second charge was aggravated in a similar manner and was aggravated further by reason that the respondent’s victim, Denise Gondara, was a female and the respondent was a male. The third charge was a common assault.

The learned magistrate imposed an aggregate sentence on the first two charges of imprisonment for a period of four months, to be suspended after the respondent had served 24 hours in custody. On the third charge, the learned magistrate imposed a sentence of imprisonment for a period of two months, to be suspended after the respondent had served 24 hours in custody. The sentences were ordered to be served concurrently and His Worship fixed a period of two years during which the respondent was not to commit another offence punishable by imprisonment.
The Crown has appealed against the sentences imposed on the respondent on the grounds that:
1.The overall sentence imposed is manifestly inadequate.
2.The learned magistrate erred in law in that he failed to give any or sufficient weight to the principles of general and specific deterrence in the circumstances of the offence and this offender.
The circumstances of the three offences were not a matter of dispute. On the evening of 4 July 2001, the respondent was drinking at the grounds of the United Church in Nhulunbuy. At about 10pm he became involved in a verbal argument with the victim of the first charge, Fagan Yunupingu, and left the area. He walked to the rear of Gove House and climbed into a boat garaged at the carpark there. The respondent removed a small container of petrol from the boat. At about 10.30pm he walked to the Nhulunbuy Private School oval and found the victims of charges 1 and 2, Fagan Yunupingu and Denise Gondara, sleeping next to the netball courts.
The respondent removed the lid of the container and poured petrol onto Denise Gondara and Fagan Yunupingu. He then took a lighter from his shirt pocket and ignited it, bending over 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 Burness v Yunupingu

Details

AGLC: Burness v Yunupingu [2003] NTSC 4
Case: [2003] NTSC 4
Decision Date: 30 January 2003

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Josephine Leah Burness appealed against the sentence imposed on Joseph Garrkana Yunupingu. The respondent had pleaded guilty to three charges of assault, with the first two charges being aggravated due to the use of offensive weapons. The Crown argued that the sentences imposed were manifestly inadequate and that the learned magistrate failed to give sufficient weight to the principles of general and specific deterrence. The circumstances of the offences involved the respondent pouring petrol over his victims and attempting to ignite it, causing them to flee in fear. The learned magistrate imposed an aggregate sentence of six months imprisonment, to be suspended after 24 hours. The Crown appealed on the grounds that the sentence was manifestly inadequate and that the learned magistrate erred in law by not adequately considering deterrence.

Bailey J found that the period of imprisonment the respondent had to serve prior to release was clearly inadequate. The sentence did not adequately reflect the seriousness of the respondent's conduct and was so far removed from an appropriate sentence that it demonstrated that the exercise of the sentencing discretion was unsound. The learned magistrate's decision to suspend almost the entire sentence was not a course reasonably open, as the circumstances of the offending were serious and the respondent's actions involved premeditation and planning. The learned magistrate's objective to save the expense of transporting the respondent to Darwin to serve his sentence could not be accepted as a valid reason to impose a sentence less than would otherwise be appropriate. However, given that the respondent had already been at large for approximately 8½ months, the court decided to dismiss the appeal, as returning the respondent to prison would be a bewildering experience for him. Instead, the court considered that a sentence of imprisonment for 9-12 months, suspended after 3 to 4 months, would be appropriate in all the circumstances of the offences and the offender.

Orders