Cant v The Queen - [2003] NTSC 13

Cant v R [2003] NTSC 13
PARTIES:CRAIG CANT

v
THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:9900592
DELIVERED:  7 March 2003
HEARING DATES:  22 January 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPLICATION – Extension of time sought extending the time within which this application may be brought.
CRIMINAL LAW – JURISDICTION - PRACTICE AND PROCEDURE – Jurisdiction – application to re-open sentencing proceedings – whether error occurred at the time sentenced imposed and whether sentence was imposed according to law – whether court has jurisdiction to re-open proceedings to correct a sentence where a prior conviction has been quashed on appeal and circumstances have changed.
INTERPRETATION – Interpretation of sections 112(1)(a) and (b) Sentencing Act (NT) 1995.
Sentencing Act1995 (NT), s 112(1)(a) & (b); Customs Act1901 (Cth), par 233B(1)(d); Penalties and Sentences Act1992 (Qld), s 188
Melville v R (1999) 107 A Crim R 70, Davis v R (1992) 109 A Crim R 314, R v Daniel Robert Voss; Ex parte Attorney-General (Qld) [2001] QCA 483, applied.

REPRESENTATION:
Counsel:
Applicant:D Dalrymple
Respondent:  G Fisher
Solicitors:
Applicant:Dalrymple & Associates
Respondent:  Office of the Commonwealth Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200310
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cant v R [2003] NTSC 13
No. 9900592

BETWEEN:
CRAIG CANT

Applicant
AND:
THE QUEEN

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 7 March 2003)

This is an application pursuant to s 112 of the Sentencing Act seeking an exercise of the Court’s discretion to re-open sentencing proceedings in this matter which were finalised on 23 November 2001. The application is brought on on the basis that a prior conviction taken into account in sentencing has subsequently been quashed. The relief sought is as follows:
“(1)granting of an order extending to 25/11/02 the time within which this Application may be brought;
(2) the re-sentencing of the Applicant in accordance with the law.”
The background to this matter is as follows:
On 9 November 2001, the applicant was found guilty by a jury of being knowingly concerned in the importation of a commercial quantity of 3, 4 methylenedioxymethamphetamine (MDMA), contrary to paragraph 233B(1)(d) of the Customs Act.
On 23 November 2001, the applicant was sentenced to a term of imprisonment of 14 years and 8 months in respect of that offence. At the time of being sentenced, on 23 November 2001, the applicant was already serving a sentence imposed on him in respect of a prior offence against par 233B(1)(d) of the Customs Act.
On 23 November 2002 a new combined head sentence of 21 years and 6 months was fixed with a new combined non-parole period of 13 years.
On 17 September 2002 the Court of Criminal Appeal in proceeding CA 14 of 2000 quashed the applicant’s prior conviction and ordered a new trial in respect…

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 Cant v The Queen

Details

AGLC: Cant v The Queen [2003] NTSC 13
Case: [2003] NTSC 13
Decision Date: 7 March 2003

CaseChat Overview and Summary

In the matter of Cant versus The Queen, the applicant sought an extension of time to re-open sentencing proceedings. The applicant was sentenced in the Supreme Court of the Northern Territory for offences of aggravated indecent assault. The appeal against the conviction was dismissed, but the conviction was later quashed on appeal. The applicant now sought to re-open the sentencing proceedings due to a change in circumstances. The High Court of Australia was asked to determine whether the court had the jurisdiction to re-open sentencing proceedings in such circumstances and whether there was an error at the time the sentence was imposed.

The central legal issues before the court were whether the court had the jurisdiction to re-open the sentencing proceedings and whether the sentence was imposed according to law. The applicant argued that the sentence was not imposed according to law because there was an error at the time the sentence was imposed. The applicant also argued that the court had the jurisdiction to re-open the sentencing proceedings because of the change in circumstances.

The court found that the sentence was imposed according to law and that there was no error at the time the sentence was imposed. The court also found that the change in circumstances did not provide a sufficient basis to re-open the sentencing proceedings. The court held that the sentencing court had the power to re-open sentencing proceedings under section 112(1)(a) and (b) of the Sentencing Act (NT) 1995, but that this power was limited to cases where there had been an error at the time the sentence was imposed or where there had been a change in circumstances that had a significant impact on the sentence. The court held that the change in circumstances in this case did not provide a sufficient basis to re-open the sentencing proceedings.

The court dismissed the application to re-open the sentencing proceedings. The court held that the sentencing court did not have the jurisdiction to re-open the sentencing proceedings because there was no error at the time the sentence was imposed and because the change in circumstances did not provide a sufficient basis to re-open the sentencing proceedings. The court found that the applicant's argument that the court had the jurisdiction to re-open the sentencing proceedings was not supported by the law. The court held that the sentencing court's power to re-open sentencing proceedings was limited to cases where there had been an error at the time the sentence was imposed or where there had been a change in circumstances that had a significant impact on the sentence. The court found that the change in circumstances in this case did not provide a sufficient basis to re-open the sentencing proceedings.

Orders