CI v Heath - [2017] NTSC 38

CITATION:CI v Heath [2017] NTSC 38
PARTIES:CI
v

HEATH, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 7 of 2017 (21706613)
DELIVERED ON:  24 May 2017
DELIVERED AT:  Alice Springs
HEARING DATE:  17 May 2017
JUDGMENT OF:  RILEY J
APPEAL FROM:  Local Court
REPRESENTATION:
Counsel:
Appellant:D Bhutani
Respondent:  R Micairan
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ril1702
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
CI v Heath [2017] NTSC 38

No. 7 of 2017 (21706613)
BETWEEN:

CI

Appellant

AND:

HEATH, Andrew

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 24 May 2017)

This is an appeal against sentence under the Youth Justice Act.
On 1 March 2017 the appellant, a youth aged 15 years, was found guilty of one count of assaulting a police officer in the execution of his duty where the officer suffered harm, contrary to section 189A of the Criminal Code. The maximum penalty for the offence is imprisonment for seven years. The appellant was convicted and sentenced to 6 months in detention suspended after serving one month.
History of Proceedings
On 8 February 2017 the appellant appeared in custody in the Youth Justice Court in Alice Springs on five separate files, three of which related to breaches of community work orders, one to a breach of a bail undertaking, and finally the charge of assault police. He was granted bail and the matters were adjourned. The appellant failed to attend Court on 24 February 2017 and a warrant for his apprehension was issued. On 27 February 2017 the warrants were executed and he appeared in the Youth Justice Court on the matters mentioned above along with two further counts of breaching bail undertakings. On 27 February 2017, the Youth Justice Court found each of the offences proven. The presiding Judge ordered a community work assessment and adjourned the matter to 1 March 2017 when the appellant was sentenced.
Circumstances of the Offending
The assault occurred a little after 10:30 pm on the night of 1 February 2017. Constable Muller and an Aboriginal Community Police Officer attended at a fast food outlet in Alice Springs where they saw a group of about thirty young people including two girls who were fighting. The girls were punching each other and pulling hair. Constable Muller approached them in order to break up the fight and, in doing so, took hold of one girl, the girlfriend of the appellant, to escort her to the police vehicle. The other girl was escorted in a different direction by the ACPO. In the course of being escorted to the police vehicle, the girl punched Constable Muller and endeavoured to kick him. He sought to ground stabilise her in order to gain control. The officer crouched down over the girl while…

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 CI v Heath

Details

AGLC: CI v Heath [2017] NTSC 38
Case: [2017] NTSC 38
Decision Date: 24 May 2017

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the appellant, a 15-year-old youth, appealed against a sentence imposed following a conviction for assaulting a police officer while the officer was executing his duty. The appellant punched the police officer, causing him significant injuries, and was sentenced to six months detention, with one month to be served and the remainder suspended. The appellant argued that the sentencing judge erred in imposing a conviction, failed to order a pre-sentence report, and that the sentence was manifestly excessive.

The court examined whether the sentencing judge erred in imposing a conviction by considering the severity of the offence and other relevant factors. The court found that the sentencing judge had considered a wide range of factors and was not limited to the severity of the offence alone. The court also considered whether the sentencing judge erred in not ordering a pre-sentence report, and found that the judge had sufficient information to determine an appropriate sentence. Finally, the court assessed whether the sentence was manifestly excessive, and concluded that given the appellant's age, limited criminal history, remorse, and prospects for rehabilitation, the sentence was indeed excessive.

The appeal was allowed, and the sentence set aside. The appellant was resentenced to detention for a period of three months, suspended forthwith. As a condition of the suspension, the appellant was placed under the supervision of Community Corrections for a period of 12 months, subject to various conditions including not committing another offence, obeying directions from a probation and parole officer, and abstaining from alcohol consumption. The court exercised its discretion not to record a conviction against the appellant.

Orders