Dumoo v The Queen - [2018] NTCCA 20

CITATION:Dumoo v The Queen [2018] NTCCA 20

PARTIES: DUMOO, Timothy

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 12 of 2018 (21541514)
DELIVERED:  17 December 2018
HEARING DATES:  3 December 2018
JUDGMENT OF:  Grant CJ, Southwood and Hiley JJ
CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT
Whether dispositions made open to sentencing court under ss 42 and 43 of the Sentencing Act (NT) – whether sentence imposed manifestly excessive – although the sentence imposed vitiated by error in principle no lesser sentence was warranted and should have been imposed – appeal dismissed.

Gilligan v The Queen [2007] NTCCA 8, R v Horstmann [2010] SASC 103, R v Lutze (2014) 121 SASR 144, R v Meschede [2016] SASCFC 49, The Queen v Haji-Noor (2007) 21 NTLR 127, referred to.
Criminal Code (NT) s 411
Sentencing Act (NT) s 42, s 44, s 47, s 48
Sentencing Regulations, reg 4(1)
REPRESENTATION:
Counsel:
Appellant:J Brock with M Aust
Respondent:  WJ Karczewski QC, Director of Public Prosecutions
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  20

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dumoo v The Queen [2018] NTCCA 20

No. CA 12 of 2018 (21541514)
BETWEEN:

TIMOTHY DUMOO

Appellant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, SOUTHWOOD AND HILEY JJ
REASONS FOR JUDGMENT
(Delivered 17 December 2018)
THE COURT:

This appeal concerns the nature of an order made pursuant to s 40 of the Sentencing Act (NT) suspending a sentence to a term of imprisonment on conditions, and the dispositions potentially open to the sentencing court under ss 42 and 43 of the Sentencing Act in circumstances where there has been a breach of that order. Ultimately, however, it concerns whether a lesser sentence was warranted and should have been imposed.
Background
On 10 November 2017, the appellant was sentenced after pleading guilty to one count of dangerous driving causing death. The learned sentencing Judge sentenced the appellant to imprisonment for three years and nine months and suspended that term on the offender entering into a home detention order for nine months.
On 6 April 2017 the sentencing court heard an application for the breach of the home detention order made pursuant to s 48(2) of the Sentencing Act. At that time the sentencing court directed that the order continue in force pursuant to s 48(9)(c) of the Sentencing Act.
On 12 May 2017 the sentencing court heard a further application for breach of the home detention order. At that time the appellant made an application pursuant to s 47(1) of the Sentencing Act that the order be revoked, the sentence of imprisonment quashed, and the sentencing court deal with the offender as if he had just come before the court…

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 Dumoo v The Queen

Details

AGLC: Dumoo v The Queen [2018] NTCCA 20
Case: [2018] NTCCA 20
Decision Date: 17 December 2018

CaseChat Overview and Summary

The appeal in *Dumoo v The Queen* was heard by Grant CJ, Southwood and Hiley JJ of the Supreme Court of the Northern Territory. The appellant, who had pleaded guilty to dangerous driving causing death, appealed against a sentence imposed following breaches of a suspended sentence order. The core of the dispute concerned the sentencing court's powers and the appropriateness of the final sentence imposed after multiple breaches of court orders.

The legal issues before the Court were whether the dispositions available to a sentencing court under sections 42 and 43 of the *Sentencing Act* (NT) were correctly applied, and whether the sentence ultimately imposed was manifestly excessive. The Court was required to consider the appellant's history of non-compliance with court orders, including a home detention order and a suspended sentence, and whether, in light of this history and his conduct in custody, a lesser sentence was warranted.

The Court found that while there had been an error in principle in the sentencing process, no lesser sentence was warranted. The appellant had a significant history of breaches of court orders, including fighting in custody and threats to prison officers, although his behaviour had shown some improvement leading to a reclassification to medium security. Despite his stated desire to comply with supervision and rehabilitation, his past non-compliance and the nature of the offence weighed heavily. The Court dismissed the appeal, upholding the sentence imposed.

Orders

Orders of the court

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Background

Background to the litigation

This appeal concerns the nature of an order made pursuant to s 40 of the Sentencing Act (NT) suspending a sentence to a term of imprisonment on conditions, and the dispositions potentially open to the sentencing court under ss 42 and 43 of the Sentencing Act in circumstances where there has been a breach of that order. Ultimately, however, it concerns whether a lesser sentence was warranted and should have been imposed.Background On 10 November 2017, the appellant was sentenced after pleading guilty to one count of dangerous driving causing death. The learned sentencing Judge sentenced the appellant to imprisonment for three years and nine months and suspended that term on the offender entering into a home detention order for nine months. On 6 April 2017 the sentencing court heard an application for the breach of the home detention order made pursuant to s 48(2) of the Sentencing Act. At that time the sentencing court directed that the order continue in force pursuant to s 48(9)(c) of the Sentencing Act. On 12 May 2017 the sentencing court heard a further application for breach of the home detention order. At that time the appellant made an application pursuant to s 47(1) of the Sentencing Act that the order be revoked, the sentence of imprisonment quashed, and the sentencing court deal with the offender as if he had just come before the court for sentence for the offence in respect of which the home detention order was made. In response to that application, the sentencing court granted conditional bail to the appellant to allow him to demonstrate his capacity to comply with the conditions which might be imposed on an order suspending sentence in the resentencing exercise. That order was presumably made in the exercise of a Griffiths-type discretion. Although the learned sentencing Judge did not expressly revoke the home detention order at that time, that must necessarily have been the mechanism by which the appellant was permitted liberty on bail. The appellant complied with the conditions of his bail during the adjournment period. On 27 July 2017 the sentencing court resentenced the appellant to imprisonment for three years and nine months backdated to 13 June 2017 to reflect the period of 44 days the appellant spent on remand pending determination of the applications, suspended forthwith.[1] That order was made subject to supervision for three years and an operational period of four years. On 9 January 2018 the sentencing court heard an application for a breach of the conditions of the order suspending sentence which had been made by Community Corrections on 12 December 2017. At that time the learned sentencing Judge ordered a mental health assessment and adjourned the application to a date to be fixed. The appellant was again released on bail. On 11 January 2018 Community Corrections made a further application for breach of the conditions of the order suspending sentence. The application alleged that following his release on bail the appellant had failed to return to Wadeye and had consumed alcohol in breach of the conditions of bail. He was arrested and remanded in custody on 12 January 2018.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was in those circumstances that the learned sentencing Judge came to deal with the appellant on 9 March 2018.Consideration During the course of the appeal hearing we sought further information in the nature of an updated assessment of suitability for supervision and an institutional report. We also gave the appellant opportunity to put further material in relation to prospective living arrangements at Wadeye and the attitude of his family to his return. The institutional report dated 14 December 2018 contains the following relevant information. The appellant has been involved in a number of breaches and incidents during the period of his incarceration. There have been four recorded breaches involving fighting with rival group members from the Wadeye region. The nature and causes of that form of conflict are well known to this Court. The appellant received periods of separate confinement for that conduct. Most recently, in August 2018 he received three days’ separate confinement for fighting with another prisoner. There are also several recorded incidents which involved the appellant making threats to prison officers and general poor behaviour. He received cautions for those behaviours and was subjected to monitoring. However, his security rating in the prison was reviewed in November 2018 and it was considered that there had been improvements in his behaviour and compliance which warranted his reclassification as a medium security prisoner. As a result he was moved to the low accommodation sector. Since that time his behaviour appears to have settled further. He has been respectful to officers and staff, but appears a little socially isolated. So far as his medical presentation is concerned, the report notes that the appellant has chronic issues with the misuse of alcohol and other drugs. He has previously made threats of self-harm and remains under a medication regime for depression while in prison. The dosage under that regime was reduced from July 2018 in response to the appellant’s reports that his condition had improved. There are five recorded “At Risk” episodes through the various periods of the appellant’s incarceration. The most recent episode of that nature occurred in March 2018 and was attributed to bereavement issues. The assessment of suitability for supervision dated 16 December 2018 contains the following relevant information. The appellant was interviewed on 6 and 13 December 2018 for the purpose of preparing the report. During the course of those interviews the appellant indicated that he wished to return to supervision and to residential rehabilitation. He was advised that if released on supervision he would be required to report weekly to the Community Corrections office in Wadeye, and would be referred for alcohol and other drug counselling. He was advised further that Community Corrections would be unable to assist him with transport in order to meet those obligations. The appellant indicated he would be prepared to comply with those obligations. When asked why he considered he would be able to comply with those obligations at this point in time given his history of non-compliance, the appellant replied that he had been in gaol for a year and did not want to be in gaol anymore.