Fernando v Balchin - [2011] NTSC 10

Fernando v Balchin [2011] NTSC 10
PARTIES: FERNANDO, Peter Robin

v
BALCHIN, Vivien Lynette

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 50 of 2010 (21009638)
DELIVERED:   10 February 2011
HEARING DATES:   14, 17 December 2010
JUDGMENT OF:   BLOKLAND J
APPEAL FROM:   Court of Summary Jurisdiction
CATCHWORDS:

CRIMINAL LAW – APPEAL FROM SENTENCE – appellant punished in addition to Court imposed punishment – regard to extra-curial punishment – exacting retribution or revenge for the commission of the offence – weight to matters of mitigation – Court to take into account all material facts – sentencing discretion – Appeal allowed.
Criminal Code (NT) s 189A
Justices Act (NT) ss 176, 176A
Police Administration Act (NT) ss 127A, 129, 158
Sentencing Act (NT) ss 5(1)(a), s 5(2)(f)
Jadurin v The Queen (1982) 7 A Crim R 182; Mamarika v The Queen (1982) 5 A Crim R 354; Neal v The Queen (1982) 149 CLR 305; R v Allpass (1994) 72 A Crim R 561; R v Barci (1994) 76 A Crim R 103; R v Cooney (unreported, Court of Appeal, Queensland No 386 of 1997, 6 March 1998); R v Gentz [1999] NSW CCA 285; R v Haddara (1997) 95 A Crim R 108; R v Minor (1992) 59 A Crim R 227; R v Noble [1996] 1 QD R 329; referred to.
R v Daetz (2003) 139 A Crim R; applied.
Bellis v Burgoyne [2003] NTSC 193; relied on.

[1]

REPRESENTATION:
Counsel:
Appellant:   Mr Brock
Respondent:   Mr Sharafeldin
Solicitors:
Appellant:   North Australian Aboriginal Justice Agency
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   BLO 1101
Number of pages:   14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fernando v Balchin [2011] NTSC 10

No. JA 50 of 2010 (21009638)
BETWEEN:

PETER ROBIN FERNANDO

Appellant

AND

VIVIEN LYNETTE BALCHIN

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 10 February 2011)
Introduction

This appeal against sentence primarily concerns the question of the regard to be had to extra-curial punishment inflicted on a defendant. Although other grounds of appeal were argued in these proceedings, shortly after hearing the appeal and viewing the relevant closed circuit television (“CCTV”) footage, I formed the view that the ground of appeal relevant to this issue had been made out. On 17 December 2010 I made orders allowing the appeal and reducing the sentence from four months imprisonment to two months imprisonment. These are the reasons for that decision.
Proceedings Before the Court of Summary Jurisdiction
On 22 October 2010 the Appellant pleaded guilty to one count of unlawful assault of a police officer in the execution of his duty contrary to s 189A Criminal Code. The assault was constituted by the spittle from three spits in close succession striking the police officer. The offence occurred in the context of the Appellant being spoken to and apprehended for protective custody…

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 Fernando v Balchin

Details

AGLC: Fernando v Balchin [2011] NTSC 10
Case: [2011] NTSC 10
Decision Date: 10/02/2011

CaseChat Overview and Summary

Fernando has appealed against his conviction and sentence following his conviction for assault occasioning actual bodily harm. The appeal was heard in the Court of Criminal Appeal. The appeal was limited to the sentence imposed by the primary judge. The appellant was sentenced to a term of imprisonment, in addition to the sentence already imposed by the court. The appellant argued that the primary judge had erred in taking into account the extra-curial punishment when determining the appropriate sentence. The appellant also argued that the primary judge had erred in not giving sufficient weight to the mitigating factors, and in not adequately explaining the reasons for the sentence imposed.

The Court of Criminal Appeal held that the primary judge erred in taking into account the extra-curial punishment when determining the sentence. The Court held that the primary judge should not have taken into account the extra-curial punishment as it was not a matter that should be considered when determining the appropriate sentence. The Court also held that the primary judge did not give sufficient weight to the mitigating factors and did not adequately explain the reasons for the sentence imposed. The Court held that the sentence imposed was manifestly inadequate and that the appeal should be allowed. The Court remitted the matter to the primary judge for re-sentencing.

The Court held that in determining an appropriate sentence, the Court must consider all material facts, including any extra-curial punishment. The Court held that the primary judge should have given greater weight to the mitigating factors and adequately explained the reasons for the sentence imposed. The Court held that the sentence imposed was manifestly inadequate and that the appeal should be allowed. The Court did not make any orders as to the appropriate sentence.

Orders