Flynn v Apuatimi - [2019] NTSC 1

CITATION:Flynn v Apuatimi [2019] NTSC 1
PARTIES:FLYNN, Steven
v

APUATIMI, Shaun Emmanuel

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 49 of 2018 (21813112)
DELIVERED ON:  2 January 2019
HEARING DATE:  20 December 2018
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Whether error in imposing community custody order – imposition of the community custody order not ancillary to suspension of a term of imprisonment or otherwise contrary to legislative scheme – whether sentence manifestly inadequate – appropriate head sentence cannot be reduced on basis that period to be served by way of community custody order – sentence imposed must reflect the objective seriousness of offence – there must be reasonable proportionality between the sentence passed and circumstances of the crime – mitigating subjective factors cannot operate to lead to sentence disproportionate to the crime – sentence manifestly inadequate – appeal allowed – matter remitted to Local Court for sentence in accordance with law.
Criminal Code (NT) s 210, s 213, s 241
Local Court (Criminal Procedure) Act (NT) s 163
Sentencing Act (NT) s 5, s 48A, s 48B, s 48E, s 48F, s 48L, s 48M, s 63, s 78B
Bara v The Queen [2016] NTCCA 5, Edmond & Moreen v The Queen [2017] NTCCA 9, Muldrock v The Queen (2011) 244 CLR 120, Pearce v The Queen (1998) 194 CLR 610, R v Dodd (1991) 57 A Crim R 349, R v Grant Moore (Unreported, Supreme Court of the Northern Territory, Martin J, 3 June 2016), R v McNaughton (2006) 66 NSWLR 566, R v Riley (2006) 161 A Crim R 414, R v Scott [2005] NSWCCA 152, referred to.
REPRESENTATION:
Counsel:
Appellant:DR Dalrymple
Respondent:  J Ker
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  GRA1901
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Flynn v Apuatimi [2019] NTSC 1

LCA 49 of 2018 (21813112)
BETWEEN:

STEVEN FLYNN

Appellant

AND:

SHAUN EMMANUEL APUATIMI

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 2 January 2019)
[1]This is an appeal brought by the complainant pursuant to s 163(1) of the Local Court (Criminal Procedure) Act (NT) from an order or adjudication of the Local Court involving sentence and an asserted error or mistake on the part of the Local Court on a question of law.
The sentence imposed
[2]On 29 August 2018 the Local Court convicted the respondent of the following offences:
(a)Unlawfully entering a building at night with the intent to commit an offence therein contrary to s 213 of the Criminal Code (NT). The maximum penalty for that offence is imprisonment for 14 years.
(b)Stealing $72,860 in Australian currency, prepaid phones, prepaid phone cards, prepaid fuel cards, groceries, clothing and sports bags, cheques, DVDs, video games and a quartz watch with a…

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 Flynn v Apuatimi

Details

AGLC: Flynn v Apuatimi [2019] NTSC 1
Case: [2019] NTSC 1
Decision Date: 2 January 2019

CaseChat Overview and Summary

In Flynn v Apuatimi, the Supreme Court of the Northern Territory considered an appeal by the complainant against the sentence imposed on the respondent by the Local Court. The respondent was convicted of unlawfully entering a building at night with intent to commit an offence, stealing property, and intentionally or recklessly causing damage to property. The Local Court sentenced the respondent to imprisonment for two months, backdated to the date of his arrest, to be served as a community custody order from the date of sentencing. The complainant appealed on the basis that the sentence was manifestly inadequate and that the imposition of a community custody order was in error.

The court first considered the contention that the imposition of a community custody order was in error. It found that the community custody order was not ancillary to the suspension of a term of imprisonment and did not otherwise contravene the legislative scheme for community custody orders. The court held that the community custody order was a permissible alternative to an order suspending sentence, and that the backdating of the sentence to account for time already served in custody was lawful.

The court then turned to the issue of manifest inadequacy. It noted that a community custody order is only available where the court decides to impose a sentence of imprisonment of no more than 12 months. The court must first assess the appropriate head sentence having regard to the circumstances of the offender and the offending, before determining whether to order the sentence to be served by way of community custody order. The court held that the sentence imposed on the respondent was manifestly inadequate, as it failed to reflect the objective seriousness of the offence and the need for reasonable proportionality between the sentence and the circumstances of the crime. The court concluded that the sentencing judge had placed an undue emphasis on subjective considerations, such as the respondent's youth and lack of a prior criminal record, and had failed to adequately consider the objective circumstances of the offending.

The court allowed the appeal on the basis of manifest inadequacy and quashed the sentence imposed by the Local Court. It remitted the matter to the Local Court for re-sentencing in accordance with the law, with appropriate regard to the particular circumstances of the case, including the fact that the respondent had breached the conditions of the community custody order and had been at large since the notice of appeal was filed. The court held that a head sentence of somewhere in the order of 12 months was warranted, appropriately backdated and suspended subject to conditions and supervision for the balance of the sentence, or to be served under a community custody order.

Orders