TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:CA (AS) 1 of 2016 (21549310)
DELIVERED ON: 14 July 2017
DELIVERED AT: Darwin
HEARING DATES: 2 December 2016
JUDGMENT OF: Grant CJ, Blokland & Barr JJ
APPEAL FROM: Mildren AJ
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether applicant’s intoxication was properly taken into account as an aggravating circumstance – information before the sentencing court not sufficient to establish applicant had foreknowledge of how he was likely to behave when affected by alcohol – nothing to indicate applicant presented as more violent, fierce or implacable than an assailant ordinarily would – sentencing court may draw inferences from the agreed facts and materials – inferential finding not available on the materials – if specific error established Court of Criminal Appeal may proceed to resentence if it reaches the further conclusion that a less severe sentence is warranted and should have been passed – less severe sentence warranted given applicant's relative youth, antecedents and prior criminal history, and objective circumstances of offending in terms of inception, duration and nature of the violence perpetrated on the victim – leave granted, appeal allowed and appellant resentenced.
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Alleged failure to accord procedural fairness in relation to the finding that intoxication was an aggravating circumstance – no agreed position between the parties on matter of law – no failure to give the parties notification of departure from agreed position – sentencing judge had no general duty to advise counsel how to present the case – the court’s duty was to give both the applicant and the Crown a reasonable opportunity to present their respective cases – a finding by a sentencing judge in relation to an aggravating or mitigating circumstance will not constitute a breach of procedural fairness by reason only that the matter was not the subject of express treatment in the course of sentencing submissions – sentencing court was entitled to assume that counsel would address intoxication to the extent considered necessary and appropriate – leave to appeal refused.
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether sentence manifestly excessive – difficult to conclude sentence was unreasonable or plainly unjust in the relevant sense – unnecessary to decide given re-sentence on the basis of specific error.
Criminal…
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.
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Details
AGLC
Forrest v The Queen [2017] NTCCA 5
Case
[2017] NTCCA 5
Decision Date
CaseChat Overview and Summary
In *Forrest v The Queen*, the applicant, Forrest, appealed against a sentence imposed by the sentencing court for offences against the person. The appeal was heard by Grant CJ, Blokland and Barr JJ of the Court of Criminal Appeal. The dispute centred on whether the sentencing judge had erred in treating the applicant's intoxication as an aggravating circumstance and whether this error had led to a manifestly excessive sentence.
The legal issues before the Court of Criminal Appeal were whether the sentencing judge had erred in finding that the applicant's intoxication was an aggravating circumstance, and whether the applicant had been accorded procedural fairness in relation to this finding. The Court was also required to determine if the sentence imposed was manifestly excessive and, if a specific error was established, whether a less severe sentence was warranted and should have been passed.
The Court found that the sentencing judge had erred in treating the applicant's intoxication as an aggravating factor. The materials before the sentencing court were insufficient to establish that the applicant had foreknowledge of how he was likely to behave when affected by alcohol, nor was there anything to indicate he presented as more violent than an ordinary assailant. While sentencing courts can draw inferences from agreed facts, such an inferential finding regarding intoxication as an aggravating circumstance was not available on the materials presented. Consequently, the Court concluded that a less severe sentence was warranted, taking into account the applicant's relative youth, antecedents, prior criminal history, and the objective circumstances of the offending. Leave to appeal was granted, the appeal was allowed, and the applicant was resentenced.
Orders
Orders of the court
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Background
Background to the litigation
The grounds argued before this Court were: that the sentence imposed was manifestly excessive; that the sentencing judge was in error to find intoxication was an aggravating circumstance; and that the sentencing judge did not accord the applicant procedural fairness in relation to the finding that intoxication was an aggravating circumstance. The sentencing facts The agreed facts may be summarised as follows.[2] The applicant was 18 years old at the time of the offending and the victim was 36 years of age. The applicant and the victim were unknown to each other. The offending took place in Alice Springs. The victim consumed alcohol in the bed of Charles Creek on the evening of 1 September 2015 and became intoxicated to the point of being “unsteady on her feet”. She commenced walking through some vacant land between Charles Creek and business premises on Schwarz Crescent. The applicant was sitting on concrete pipes situated on the vacant land and watching the victim’s progress. He called out to her, “Hey, come over and join me for a drink”. She replied, “I’m going home”. The applicant said, “Just help me out for one drink”. The applicant had two bottles of wine in his possession. The victim approached him and sat down on the pipes. Together they consumed the wine. The applicant said, “Sleep with me”. The victim stood up and said, “I haven’t got any blanket” and began walking away. The applicant chased the victim and forced her back to the pipes. He pushed her to the ground onto her back and removed her shorts. He pulled his shorts down and had rough, unprotected penile-vaginal sexual intercourse with her. The victim felt pain to her vagina and bottom. The applicant also touched the victim on her breasts with his hands and sucked her nipples. The victim tried to push him off, but he restrained her. She repeatedly screamed for help. The applicant held his left hand over her mouth to silence her. He ejaculated and withdrew his penis. The victim began walking away and the applicant again chased after her. He pushed her back against the pipes and inserted his penis into her mouth and had unprotected oral sexual intercourse. He again had rough, unprotected penile-vaginal sexual intercourse with her. She again felt pain to her vagina. On seeing the headlights of a car travelling along Schwarz Crescent, the applicant ran from the scene. The victim dressed herself, walked to the Alice Springs police station and reported the offending. A forensic examination of the victim at the Sexual Assault Referral Centre identified the following injuries constituting harm: a superficial linear abrasion to the right buttock; a bruise to the left scapula region; a swollen urethral opening with a split in the lower surface; five lacerations on the vaginal walls; and three red linear marks on the left vaginal wall and three red linear marks on the right vaginal wall consistent with superficial tears or lacerations.[3] A small amount of blood was present in the vaginal fornices.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the application of those principles it is difficult to conclude that the sentence imposed by the sentencing judge in this case was unreasonable or plainly unjust in the relevant sense. However, it is unnecessary to do so in the circumstances. As already observed, if specific error is established this Court may proceed to resentence an appellant if it reaches the further conclusion that a less severe sentence is warranted and should have been passed. Conclusion For the reasons already given in the context of the second ground of appeal, the sentencing court fell into error by treating the applicant’s intoxication as an aggravating factor. It may be assumed that the severity of the sentence imposed was influenced by the sentencing judge's treatment of the applicant’s intoxication. Having regard to the applicant's relative youth, antecedents and prior criminal history, and to the objective circumstances of this offending in terms of inception, duration and the nature of the violence perpetrated on the victim, we are of the opinion that a less severe sentence was warranted in the circumstances and should have been passed. We will proceed to re-sentence the applicant accordingly.Re-sentence We grant leave to appeal on the second ground and find that the sentencing judge fell into error in his treatment of the applicant’s intoxication as an aggravating circumstance. The sentence of imprisonment for ten years and six months is quashed. We sentence the applicant to nine years’ imprisonment (after allowing a 25 per cent discount in recognition of the guilty plea), and fix a non-parole period of six years and four months.