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Fernando v Nicholas

Fernando v Nicholas

Case [2019] NTSC 19 26 March 2019

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CITATION:Fernando v Nicholas [2019] NTSC 19
PARTIES:FERNANDO, Dorothy
v

NICHOLAS, Sally

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 64 of 2018 (21848916)
LCA 65 of 2018 (21833730)

DELIVERED ON:  26 March 2019
HEARING DATE:  22 March 2019
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT
Whether Local Court erred in imposing 21 days’ imprisonment without suspension – whether failure to consider alternatives to imprisonment – whether sentence manifestly excessive – “short, sharp” period of imprisonment – nature of appeal – appeal allowed and offender resentenced.
Local Court (Criminal Procedure) Act 1928 (NT) s 176A
Sentencing Act 1995 (NT) s 60A
Dinsdale v The Queen (2000) 202 CLR 321, Elliott v Harris (No 2) (1976) 13 SASR 516, Forrest v The Queen [2017] NTCCA 5, Gumurdul v Reinke (2006) 161 A Crim R 87, Lalara v Malogorski [2012] NTSC 53, Leaney v Bell (1992) 108 FLR 360, Markarian v The Queen(2005) 79 ALJR 1048, Marshall v Court [2013] NTSC 75, McCarthy v Trenerry [1999) NTSC 29, Millar v Brown [2012] NTSC 23, Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282, R v Locke and Paterson (1973) 6 SASR 298, R v Zamagias [2002] NSWCCA 17, Ryan v Malagorski [2012] NTSC 55, Seears v McNulty (1987) 89 FLR 154, Turner v Trenerry [1997] NTSC 21, referred to.
REPRESENTATION:
Counsel:
Appellant:T Jackson
Respondent:  J Bochmann
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1906
Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fernando v Nicholas [2019] NTSC 19

LCA 64 of 2018 (21848916)
LCA 65 of 2018 (21833730)
BETWEEN:

DOROTHY FERNANDO

Appellant

AND:

SALLY NICHOLAS

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 26 March 2019)
[1]On 27 November 2018 the appellant pleaded guilty to the offences of escaping lawful custody, fighting in a public place, breaching bail and possessing cannabis. The sentencing judge imposed imprisonment for 14 days for escaping lawful custody and seven days for fighting in public, with those sentences to be served concurrently.[1] The sentencing judge imposed imprisonment for seven days for the breach of bail, with that sentence to be served cumulatively on the other sentences. The sentencing judge convicted the appellant of possessing cannabis, and discharged her without further penalty. The total effective sentence was imprisonment for 21 days.
[2]The appellant has lodged appeals against those sentences on the grounds that both individually and in their totality they were manifestly excessive, and that the sentencing judge failed to consider alternatives to imprisonment.
The circumstances of the offending and offender
[3]On the evening of 10 August 2018 the appellant was drinking with her mother and they both became intoxicated. At about 1:45 a.m. that same night the appellant and her mother began fighting…

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 Nicholas

Details

AGLC: Fernando v Nicholas [2019] NTSC 19
Case: [2019] NTSC 19
Decision Date: 26 March 2019

CaseChat Overview and Summary

Fernando has appealed against his conviction and sentence imposed by the Local Court of New South Wales. Fernando was convicted of assault occasioning actual bodily harm. The nature of the dispute concerns the appropriateness of the sentence imposed by the court. Specifically, Fernando argues that the Local Court erred in imposing a 21-day imprisonment term without considering alternatives and that the sentence was manifestly excessive.

The legal issues before the court were whether the Local Court erred in imposing 21 days' imprisonment without suspension, whether it failed to consider alternatives to imprisonment, and whether the sentence was manifestly excessive. Fernando submitted that the Local Court did not adequately consider alternatives to imprisonment and that a 21-day imprisonment term was excessive given the nature of the offence and the offender's background. The court was required to determine whether the sentence imposed was appropriate and whether the Local Court considered all relevant factors in determining the sentence.

In allowing the appeal, the court found that the Local Court erred in imposing a 21-day imprisonment term without adequately considering alternatives to imprisonment. The court noted that the offender had no prior convictions and was a first-time offender. The court also found that a 21-day imprisonment term was manifestly excessive given the nature of the offence and the offender's background. The court held that a "short, sharp" period of imprisonment was not appropriate in this case and that the Local Court should have considered other sentencing options, such as a good behaviour bond or community service order. The appeal was allowed, and the offender was resentenced to a good behaviour bond for a period of 12 months.

Orders