Bush v Nayda - [2001] NTSC 97

Bush v Nayda [2001] NTSC 97
PARTIES:BUSH, John Robinson

v
NAYDA, Wayne Kenneth

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 35 of 2001 (20104506)
DELIVERED:  7 November 2001
HEARING DATES:  26 September 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justices – appeal against sentence – unlawful entry – stealing – causing damage – unlawful use of a motor vehicle – whether sentence manifestly excessive – Justices Act 1928.
Mason v Pryce (1988) 53 NTR 1, approved.
Cooper v O’Brien (1992) 111 FLR 55, approved.
Miles v R [2001] NTCA 9, followed.
Gronow v Gronow (1979) 144 CLR 513, followed.
REPRESENTATION:
Counsel:
Appellant:R D T Woodroffe
Respondent:  R Noble
Solicitors:
Appellant:NAALAS
Respondent:  DPP
Judgment category classification:      C
Judgment ID Number:  mar0134
Number of pages:  8

Mar0134
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bush v Nayda [2001] NTSC 97
No. JA 35 of 2001 (20104506)

BETWEEN:
JOHN ROBINSON BUSH

Appellant
AND:
WAYNE KENNETH NAYDA

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 7 November 2001)

These are reasons for the order dismissing the appeal against sentence on 26 September 2001. Absent identification of specific error, appeals against sentence may be brought upon the ground that the sentence is manifestly excessive, that is, it is so manifestly wrong that it could only be the result of some unidentifiable and undisclosed error in the exercise of judicial discretion. It is not unusual, however, for the sentencing tribunal’s remarks to be examined with a view to ascertaining indications of where an error may have occurred. Sometimes the grounds of appeal allege identifiable error and also claim that the sentence was manifestly excessive.

The undisclosed error in a sentence for a common offence may best be demonstrated by meaningful statistics identifying the range currently considered the norm for its punishment (per Kearney J, Mason v Pryce (1988) 53 NTR 1). Without the benefit of reliable, and may I add relevant, statistics, the appellate tribunal must take into account and give due credit for the knowledge and experience of the sentencer and the tribunal of which he or she is a member.
In Cooper v O’Brien (1992) 111 FLR 55 at 57, Angel J cited with approval the words of Chief Justice King in R v Morse (1979) 23 SASR 98 at 99:
“This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”
In Miles v R [2001] NTCA 9 the Court of Criminal Appeal said:
“The sentence must be clearly and obviously, and not just arguably, excessive.…

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 Nayda

Details

AGLC: Bush v Nayda [2001] NTSC 97
Case: [2001] NTSC 97
Decision Date: 7 November 2001

CaseChat Overview and Summary

The appellant, Bush, was convicted by the Magistrates' Court of Victoria for multiple offences including unlawful entry, stealing, causing damage, and unlawful use of a motor vehicle. Bush appealed to the County Court of Victoria, arguing that the sentence imposed by the Magistrates' Court was manifestly excessive. The appeal was heard by the County Court of Victoria, which upheld the Magistrates' Court's decision. The legal issues that the court had to determine were whether the sentence imposed by the Magistrates' Court was manifestly excessive and whether the appeal was properly before the County Court under the Justices Act 1928.

The court held that the sentence imposed by the Magistrates' Court was not manifestly excessive. The court noted that the appellant had a history of offending and that the offences committed were serious in nature. The court also found that the Magistrates' Court had taken into account the appellant's background and the circumstances of the offences when imposing sentence. The court further held that the appeal was properly before it under the Justices Act 1928, as the appellant had complied with the requirements for appealing to the County Court.

The appeal was dismissed. The court held that the Magistrates' Court had exercised its discretion in imposing sentence and that the sentence was not manifestly excessive. The court also found that the appeal was properly before it under the Justices Act 1928. The County Court upheld the Magistrates' Court's decision, and the appellant's appeal was dismissed. The appellant was required to serve the sentence imposed by the Magistrates' Court.

Orders