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Bush v Lyons

Bush v Lyons

Case [2018] NTSC 20 27 March 2018

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CITATION:Bush v Lyons [2018] NTSC 20
PARTIES:BUSH, Ernest
v

LYONS, Richard

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 2 of 2017 (21656772)
DELIVERED ON:  27 March 2018
DELIVERED AT:  Alice Springs
HEARING DATE:  28 April 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Appeal against sentence – appellant convicted in the Local Court of contravening domestic violence order – sentence of imprisonment for four months – previous recent breaches of domestic violence order – whether sentencing judge misused previous convictions – whether sentencing judge failed to take into account purpose of rehabilitation – whether error in not partially suspending sentence – whether sentence manifestly excessive – no misuse of prior convictions – no error of principle in the assessment of rehabilitative purpose – unnecessary for sentencing court to state expressly that consideration given to suspending sentence – no error of principle by not making an order suspending sentence – appeal allowed on ground of manifest excess – appellant resentenced having regard to present circumstances.
Alcohol Protection Orders Act (NT) s 5, s 23(1)
Domestic and Family Violence Act (NT) s 120(1)
Dinsdale v The Queen (2000) 202 CLR 321, Emitja v The Queen [2016] NTCCA 4, Forrest v The Queen [2017] NTCCA 5, Lantjin v Phipps [2017] NTSC 39, Manakgu v Russell [2013] NTSC 48, Markarian v The Queen (2005) 79 ALJR 1048, R v Anzac (1987) 50 NTR 6, R v Jabaltjari (1989) 46 NTR 47, R v Zamagias [2002] NSWCCA 17, Ryan v The Queen (2001) 206 CLR 267, The Queen v JO [2009] NTCCA 4, referred to.
REPRESENTATION:
Counsel:
Appellant:S Lapinski
Respondent:  S Tasneem
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1804
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Bush v Lyons [2018] NTSC 20

LCA 2 of 2017 (21656772)
BETWEEN:

ERNEST BUSH

Appellant

AND:

RICHARD LYONS

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 27 March 2018)

On 12 December 2016 the appellant was found guilty and convicted in the Local Court at Tennant Creek of the following offences:
(a)one count of engaging in conduct that resulted in a contravention of a domestic violence order, contrary to s 120(1) of the Domestic and Family Violence Act (NT); and
(b)one count of intentionally engaging in conduct resulting in the contravention of an alcohol protection order, contrary to s 23(1) of the Alcohol Protection Orders Act (NT).
The charges arose out of conduct which took place on 10 December 2016. The agreed facts may be summarised as follows.
(a)On 2 July 2016 the appellant was served with an alcohol protection order pursuant to s 5 of the Alcohol Protection Orders Act requiring that he not possess or consume alcohol; not receive alcohol from…

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 Bush v Lyons

Details

AGLC: Bush v Lyons [2018] NTSC 20
Case: [2018] NTSC 20
Decision Date: 27 March 2018

CaseChat Overview and Summary

The appellant, Bush, was convicted by the Local Court of breaching a domestic violence order, a matter that was subsequently appealed to the higher court. The appeal centred on the sentence imposed by the Local Court, which was imprisonment for a period of four months. The appellant had a history of recent breaches of domestic violence orders, which was a significant factor in the sentencing decision. The primary legal issues for the court to determine were whether the sentencing judge had misused the appellant’s previous convictions, whether the judge failed to consider the rehabilitative purpose of the sentence, and if the sentence was manifestly excessive.

The court examined the sentencing remarks and concluded that there was no misuse of prior convictions. The sentencing judge had appropriately considered the appellant’s history of non-compliance with domestic violence orders, which was a valid factor in determining the appropriate sentence. The court found no error of principle in the assessment of the rehabilitative purpose of the sentence, as the judge had acknowledged the need for deterrence and rehabilitation. The court held that it was not necessary for the sentencing court to expressly state that consideration was given to suspending the sentence. Therefore, the court found no error of principle by not making an order suspending the sentence. However, the court found that the sentence was manifestly excessive given the appellant’s present circumstances and allowed the appeal on that ground.

Consequently, the appeal was allowed, and the case was remitted to the Local Court for resentencing, with the court to have regard to the appellant’s present circumstances. The resentencing process would ensure that the sentence imposed would be proportionate and appropriate, taking into account all relevant factors, including the appellant’s history of non-compliance and the purposes of sentencing.

Orders