Gare v Firth - [2019] NTSC 24

CITATION:Gare v Firth [2019] NTSC 24
PARTIES:GARE, Joel Richard
v

FIRTH, Justin Anthony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 4 of 2019 (21851361)
DELIVERED ON:  12 April 2019
HEARING DATE:  2 April 2019
JUDGMENT OF:  Mildren AJ
CATCHWORDS:

Appeal - Local Court appeal against head sentence imposed - Whether sentence was manifestly excessive - Where no specific error is established appellant must show sentence was not only excessive but manifestly so - Sentencing range for offences under s213 of the Criminal Code (NT) very broad -Consideration given to reasonable proportionality between the sentence passed and circumstances of the crime - held looking at the head sentence overall unable to conclude sentencing discretion miscarried because sentence imposed were manifestly excessive - Ground of appeal on excessive sentence dismissed.
Appeal - Local Court appeal against head sentence imposed - Local Court erred in imposing a non-parole period rather than a partially suspended sentence - whether a suspended sentence can be imposed for longer than half of the total head sentence - Imposing a partly suspended sentence is discretion of the judge imposing the sentence and not of any statutory constraints - Appeal against discretion only allowed if discretion miscarried - Judge below had not given any weight to relevant factors - Held discretion miscarried – Appeal allowed on this ground.
Appeal - Local Court appeal against head sentence imposed - non-parole period in excess of statutory minimum -Whether discretion miscarried in fixing of the non-parole period - held non-parole period fixed manifestly excessive - Appeal allowed in part - Order fixing non-parole period set aside.
Bara v The Queen [2016] NTCCA 5; Bugmy v The Queen [1990] HCA 18; 169 CLR 525; Emitja v The Queen [2016] NTCCA 4; Flynn v Apuatimi [2019] NTSC 1; House v The King [1936] HCA 40; 55 CLR 499; JF v The Queen [2017] NTCCA 1; Johnson v The Queen [2012] NTCCA 14; Power v The Queen [1974] HCA 26; 131 CLR 623; R v Shrestha [1991] HCA 26; 173 CLR 48, referred to
Criminal Code s 213,
Sentencing Act, s 40 (1), s 40 (4), s 103
REPRESENTATION:
Counsel:
Appellant:J Ker
Respondent:  L Hopkinson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Mil19553
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gare v Firth [2019] NTSC 24

LCA 4 of 2019 (21851361)
BETWEEN:

JOEL RICHARD GARE

Appellant

AND:

JUSTIN ANTHONY FIRTH

Respondent

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 12 April 2019)
[1]This is an appeal against sentences imposed by a Judge of the Local Court.
[2]The appellant pleaded guilty to one count of property damage, one count of unlawful entry of a dwelling house with intent to steal and to one count of stealing. The…

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 Gare v Firth

Details

AGLC: Gare v Firth [2019] NTSC 24
Case: [2019] NTSC 24
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the case of Gare v Firth, the appellant, Gare, appealed against the sentence imposed by the Local Court, seeking to challenge the severity and proportionality of the sentence, as well as the imposition of a non-parole period. The appellant was convicted of several offences under section 213 of the Criminal Code (NT), which carries a broad sentencing range. The Local Court sentenced Gare to imprisonment for a head sentence with a non-parole period that exceeded the statutory minimum.

The primary legal issues were whether the sentence was manifestly excessive, whether the Local Court erred in imposing a non-parole period instead of a partially suspended sentence, and whether the non-parole period was fixed in excess of what was reasonable. The court examined if the sentence imposed by the Local Court was within the acceptable range of sentencing options for the offence, and whether the judge had properly exercised their discretion.

The court found that while the sentence was severe, it was not manifestly excessive given the nature of the offences and the broad sentencing range permitted by law. The court held that the appellant had to demonstrate not only that the sentence was excessive, but that it was manifestly so. The court determined that the sentence was not manifestly excessive as it fell within the broad sentencing range for the offences. Regarding the non-parole period, the court concluded that the Local Court had miscarried in its discretion by not considering a partially suspended sentence, which could have been appropriate given the circumstances. The non-parole period was also found to be manifestly excessive.

The appeal was allowed in part. The non-parole period was set aside, and the matter was remitted to the Local Court for reconsideration of the sentence.

Orders