FG v Peach - [2003] NTSC 114

FG v Peach [2003] NTSC 114
PARTIES:FG

v
DAVID NICHOLAS PEACH

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 45/03 (20214031)
DELIVERED:  26 November 2003
HEARING DATE:  17 November 2003
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:J Lawrence
Respondent:  G McMaster
Solicitors:
Appellant:T Crane
Respondent:  DPP
Judgment category classification:    C
Judgment ID Number:  bai0305
Number of pages:  19

bai0305
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
FG v Peach [2003] NTSC 114
No. JA 45/03 (20214031)

BETWEEN:
FG

Appellant
AND:
DAVID NICHOLAS PEACH

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 26 November 2003)

This is an appeal against a sentence imposed by the Court of Summary Jurisdiction sitting at Darwin on 24 February 2003. On that date the appellant pleaded guilty to five counts of aggravated indecent dealing with a child under the age of 16 years (contrary to section 132(2)(a) and (4) of the Criminal Code). Four of the offences were committed between 5 July 2000 and 1 February 2001. The fifth offence was committed between 1 October 2001 and 8 October 2001. Each of the five offences was aggravated by reason that the victim was a lineal descendant, the daughter, of the appellant. The maximum penalty for each of the five offences (on indictment) is imprisonment for 10 years.

In addition to the offences contrary to s 132 of the Criminal Code, the appellant pleaded guilty to six counts of administering a dangerous drug to herself (contrary to s 13 of the Misuse of Drugs Act). The dangerous drugs were cannabis, MDMA (‘ecstasy’) and amphetamines. The maximum penalty for each of these six offences is imprisonment for 2 years or a fine of $2,000 or both.
With respect to the six offences contrary to the Misuse of Drugs Act, the learned magistrate imposed an aggregate fine of $500. The appellant makes no complaint about that sentence. With respect to the five offences of aggravated indecent dealing, the learned magistrate sentenced the appellant to an aggregate term of imprisonment of 2 years and 6 months and ordered that the balance of the sentence be suspended after the appellant had served 9 months imprisonment. The appellant appeals against that sentence on the grounds that the learned magistrate –
i)    erred in imposing a sentence that was manifestly excessive in all the circumstances of the offending and the offender;
ii)   erred in failing to give a sufficient discount for the appellant’s plea, remorse and assistance to the authorities; and
iii)     erred in failing to properly consider the effect the incarceration would have on the victim and other children of the family.

The circumstances of the five offences of aggravated indecent dealing were the subject of agreement and reduced to writing (Exhibit No 1). In summary, the appellant was 34 years old at the outset of the offending. In around January 1999, the appellant together with her three children…

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 FG v Peach

Details

AGLC: FG v Peach [2003] NTSC 114
Case: [2003] NTSC 114
Decision Date: 26 November 2003

CaseChat Overview and Summary

In the case of FG v Peach, the appellant, FG, was convicted of five counts of aggravated indecent dealing with a child under 16 years of age, as well as six counts of administering dangerous drugs to herself. She appealed against the sentence imposed by the Court of Summary Jurisdiction, which was an aggregate term of imprisonment of 2 years and 6 months, with 9 months to be served and the balance to be suspended. The appellant argued that the sentence was manifestly excessive, and that the magistrate failed to give sufficient discount for her plea, remorse and assistance to the authorities, as well as failing to properly consider the effect of incarceration on the victim and other children of the family.

The court found that the offences were serious and merited a sentence of imprisonment, but the appellant's complaint was that the length of the custodial part of the sentence was excessive. The court found that the magistrate had considered all relevant circumstances and had given sufficient weight to the appellant's plea, remorse and assistance to the authorities, as well as the effect of incarceration on her children. The court also found that the appellant's submission that the Legislature intended for sentences of this nature to be suspended almost entirely was not supported by the evidence. The appeal was dismissed, and the sentence upheld.

In summary, the court found that the sentence imposed on the appellant was appropriate and not manifestly excessive, taking into account all relevant circumstances, including the gravity of the offences and the need for general deterrence, as well as the appellant's plea, remorse and assistance to the authorities, and the effect of incarceration on her children. The appeal was dismissed, and the sentence upheld.

Orders