DP v Rigby & Ors - [2018] NTSC 11

CITATIONDP v Rigby & Ors [2018] NTSC 11
PARTIES:DP
v

RIGBY, Kerry

AND:DP
v

RIGBY, Kerry

AND:DP
v

HEGYI, Bronte

AND: DP
v

FIRTH, Justin

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from the YOUTH JUSTICE COURT exercising Territory jurisdiction
FILE NO:LCA 28 of 2017 (21700583);
LCA 29 of 2017 (21651228);
LCA 30 of 2017 (21708779); and
LCA 31 of 2017 (21714970)

DELIVERED ON:  21 February 2018
DELIVERED AT:  Darwin
HEARING DATES:  29 September 2017, 27 October 2017, 31 October 2017 and 6 November 2017
JUDGMENT OF:  KELLY J
APPEAL FROM:  YOUTH JUSTICE COURT
CATCHWORDS:

APPEAL AND NEW TRIAL – Appeal – General principles – Admission of fresh evidence – Whether leave should be granted for adducing fresh evidence – Reasonable explanation for failure to adduce fresh evidence – Evidence adduced in the court below – Leave granted – Local Court (Criminal Procedure) Act (NT) s 176A
APPEAL AND NEW TRIAL – Appeal – General principles – In general and right of appeal – Appeal against sentence – Misunderstanding of salient feature of evidence – Principles and factors to be taken into account in relation to young offenders – Failure to attribute adequate weight to rehabilitation – Youth being dealt with by a court for the first time – Appeal allowed
APPEAL AND NEW TRIAL – Appeal – Error in imposing aggregate sentences – Youth Justice Act 2005 (NT) s 125 – Appeal allowed
Local Court (Criminal Procedure) Act (NT) s 176A
Sentencing Act1995 (NT) s 52(3), 78C
Youth Justice Act 2005 (NT) s 125
Edmond and Moreen v The Queen [2017] NTCCA 9, TM v The Queen [2017] NTCCA 3, applied
Bean v Considine [1965] SASR 351, Woods v Eaton [2009] NTSC 49, Edmond and Moreen v The Queen [2017] NTCCA 9, referred to
REPRESENTATION:
Counsel:
Appellant:P Bellach with C Triggs
Respondents:  L Hopkinson
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondents:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Kel1805
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
DP v Rigby & Ors [2018] NTSC 11

No. LCA 28 of 2017 (21700583), LCA 29 of 2017 (21651228);
LCA 30 of 2017 (21708779); and LCA 31 of 2017 (21714970)

BETWEEN:
DP

Appellant
AND:
KERRY RIGBY

Respondent
AND BETWEEN:
DP

Appellant
AND:
KERRY RIGBY

Respondent
AND BETWEEN:
DP

Appellant
AND:
BRONTE HEGYI

Respondent
AND BETWEEN:
DP

Appellant
AND:
JUSTIN FIRTH

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 21 February 2018)

The appellant is now 15 years old. To the age of 12, he grew up in a home marred by domestic violence. He and his mother were both victims of domestic violence perpetrated by his father. Between 2006 and 2014, when the appellant was aged between 4 and 12, there were five substantiated reports of domestic violence inflicted on the appellant or on his mother which the appellant witnessed.
Notwithstanding this, the appellant was well behaved…

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 DP v Rigby & Ors

Details

AGLC: DP v Rigby [2018] NTSC 11
Case: [2018] NTSC 11
Decision Date: 21 February 2018

CaseChat Overview and Summary

The appellant, DP, has appealed against a sentence imposed by the Local Court of the Northern Territory. DP has argued that the sentencing judge erred in several respects, including failing to correctly apply principles relating to sentencing youth offenders, attributing inadequate weight to rehabilitative purpose, and incorrectly imposing aggregate sentences. DP sought leave to present fresh evidence from psychologist Kerry Williams to support his appeal. The psychologist had previously provided a report stating that DP’s father died in 2016, but the actual date of death was 2014. DP argued that the psychologist’s incorrect date could have explained his sudden onset of offending behaviour. The court had to determine whether leave should be granted to present this fresh evidence and if the appeal should be allowed based on the arguments presented.

The court considered whether the appellant had provided a reasonable explanation for not adducing the fresh evidence in the original proceedings. The appellant explained that the psychologist's report was based on the psychologist’s understanding that the father died in 2016, which was incorrect. The court assessed the appellant's reasons and concluded that the explanation was reasonable, justifying the grant of leave to adduce the fresh evidence. The court also considered the principles and factors relevant to sentencing young offenders, particularly the rehabilitative purpose and the appropriateness of detention as a last resort. The court found that the sentencing judge had not appropriately considered the impact of the appellant's father's death and its connection to his offending behaviour. Additionally, the court found that the sentencing judge had erred in imposing aggregate sentences contrary to the Youth Justice Act 2005 (NT).

The appeal was allowed, and the court set aside the sentence and re-sentenced the appellant. The court emphasised the importance of considering the unique circumstances of young offenders, including the impact of family loss and the need for rehabilitation. The court found that the original sentence did not adequately reflect these considerations. In light of the fresh evidence and the errors identified, the court decided that a new sentence should be imposed, taking into account the appellant's background, the nature of his offending, and the principles of youth justice. The court also noted that the appellant had not reoffended since being released on bail, which was a positive factor in his favour.

The court ordered that the original sentences be set aside and that the appellant be re-sentenced, with the new sentence to be determined in accordance with the principles outlined in the judgment. The court directed that the re-sentencing be carried out by a different sentencing judge to ensure impartiality.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant has appealed against these sentences on the following grounds:1.The learned judge failed to correctly apply the principles relating to sentencing youth offenders, in particular the principle of rehabilitative purpose, when sentencing the appellant.2.The learned judge attributed inadequate weight to rehabilitative purpose when sentencing the appellant.3.The learned judge failed to correctly apply the principle that detention is a sentence of last resort.4.The learned judge erred in recording convictions when sentencing the appellant.5.The learned judge erred in assessing the pleas of guilty on files 21651228 and 21700583 as ‘late’.6.The learned judge erred by imposing aggregate sentences in contravention of s 125 of the Youth Justice Act 2005 (NT).Application to adduce evidence on the appeal In addition, the appellant has sought leave to adduce evidence on the hearing of the appeal from psychologist Kerry Williams. Ms Williams prepared a report dated 24 May 2017 for the court below. In it she quoted the appellant as having said that his father had passed away last year. At paragraph [5] of her report, Ms Williams said:[DP] stated that his father passed away last year. He stated this was a very sad time as it was not expected. He reported that his father suffered heart failure and it was some time before the family knew the reason for his sudden death. At paragraph [20], Ms Williams said:[DP] advised he lost his father in unexpected circumstances last year and it is highly possible that issues of loss and grief have impacted on how he controls his emotions, including how he reacts when angry. On that basis, it is highly likely that there is a correlation between his loss and grief and anger issues, and his subsequent offending behaviour. In fact the appellant’s father died in 2014. All of the offences for which the appellant was sentenced occurred during a five month period between 26 October 2016 and 24 March 2017. After that, the appellant spent some time (approximately four months) in custody and then was released on bail. He did not commit any fresh offences while on bail. In sentencing the appellant the sentencing Judge said:… I received no explanation as to why he suddenly started to offend. The psychologist’s report, at first blush, appears to provide an explanation, because the psychologist wrongly understood that the youth’s father had died only in 2016. And if so that would have had a nexus with the commencement of the offending which would have been logically satisfying at first blush. That turned out to be incorrect. The death of the father occurred in early 2014.[1] The appellant sought leave to adduce in evidence a fresh report by Ms Williams addressing (inter alia):(a)whether Ms Williams in fact knew the date of the father’s death when she wrote the report and, if so, the reason for referring to the death the way she did in the report;(b)whether her conclusions, particularly those in paragraph [20] would be any different given the true date of the death of the appellant’s father;(c)whether there is likely to be a connection between the domestic violence witnessed/experienced by the appellant prior to his father’s death and his offending;(d)Ms Williams’ knowledge of the circumstances experienced by the appellant after his father’s death, in particular his living circumstances and any reasons why he did not receive a greater level of care and support from his family following his father’s death; whether these experiences have affected his well-being and family relationships; and whether there is a connection between the appellant’s acts of impulsiveness towards family members and his experiences of lack of support/rejection by his family following his father’s death; and(e)a more detailed explanation of the likely correlation between the appellant’s loss and grief, his anger issues and his subsequent offending referred to at paragraph [20] of the report.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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