George v O'Neil - [2009] NTSC 41

George v O’Neil [2009] NTSC 41
PARTIES:GEORGE, PRESTON LEE

v
O’NEIL, WAYNE JEFFREY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 26 of 2009 (20910679)
DELIVERED:  5 August 2009
HEARING DATES:  17 July 2009
JUDGMENT OF:  THOMAS J
APPEAL FROM:  Court of Summary Jurisdiction
REPRESENTATION:
Counsel:
Appellant:G Lewer
Respondent:   R Coates
Solicitors:
Appellant: North Australian Aboriginal Justice Agency
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:       C
Judgment ID Number:  tho200907
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
George v O’Neil [2009] NTSC 41

No. JA 26 of 2009 (20910679)

BETWEEN:
GEORGE, PRESTON LEE

Appellant
AND:
O’NEIL, WAYNE JEFFREY

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 5 August 2009)
Thomas J:

This is an appeal from an order made by a stipendiary magistrate in the Court of Summary Jurisdiction on 25 May 2009 issuing a warrant of commitment that the appellant serve seven days imprisonment.
On the application of Ms Lewer for the appellant, and with the consent of Mr Coates for the respondent, the Court granted leave to amend the existing ground of appeal by replacing it with the following three grounds:
1.The learned magistrate erred in finding that the warrant of commitment issued by the Court of Summary Jurisdiction on 27 March 2009 and executed on 25 May 2009 provided lawful authority for the Appellant’s imprisonment on 25 May 2009 or for any period thereafter.
2.The learned magistrate erred in finding he had power to make an order for a further warrant of commitment that the appellant served 7 days imprisonment.
3.In the alternative, if the learned magistrate did have power to make such an order, that the learned magistrate’s discretion about whether he should make such order miscarried.
At the commencement of the hearing of this appeal, Mr Coates on behalf of the respondent, conceded that the learned stipendiary magistrate had no power to make the order. Accordingly, the respondent conceded the appeal should be allowed and the order of the magistrate made on 25 May 2009 be quashed.
I stated I would nevertheless provide written reasons for decision as the point is of significance.
The background to this matter is set out in the written submissions of Ms Lewer for the appellant as follows:
“History
Proceedings on 27 March 2009
On 27 March 2009 the Appellant appeared in the Darwin Court of Summary Jurisdiction and pleaded guilty to one count of breaching a Domestic Violence Order. The learned Magistrate convicted and sentenced the Appellant to 10 days imprisonment ordered to commence on 26 March 2009. This sentence was backdated by one day to take account of the prior period in custody (when the Appellant was first arrested and taken into custody). Accordingly, the Appellant could have expected to be released on 5 April 2009 at the expiration of the 10 days.
Events between 27/09/09 and 25/05/09
The Appellant relies on…

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 George v O'Neil

Details

AGLC: George v O'Neil [2009] NTSC 41
Case: [2009] NTSC 41
Decision Date: 5 August 2009

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Thomas J heard an appeal from Preston Lee George against Wayne Jeffrey O'Neil. The appellant, George, had been sentenced to 10 days imprisonment for breaching a Domestic Violence Order, backdated to 26 March 2009. Due to an administrative error, George was released immediately after sentencing on 27 March 2009. The appellant was subsequently re-arrested and brought before the Court of Summary Jurisdiction on 25 May 2009. At this hearing, a warrant of commitment was issued for George to serve a further 7 days imprisonment. George appealed this decision, arguing that the Court of Summary Jurisdiction lacked the authority to issue a new warrant of commitment after the original sentence had expired.

The legal issues before the court were whether the magistrate had the power to issue a new warrant of commitment after the original 10-day sentence had expired, and whether the magistrate's discretion about whether to make such an order had miscarried. The court considered whether the principles established in Whan v McConaghy applied, which held that a term of imprisonment continues to run even if the prisoner is not actually in custody. The court also examined the relevant provisions of the Justices Act, the Interpretation Act, and the Sentencing Act.

The court found that the magistrate did not have the power to issue a new warrant of commitment after the original sentence had expired on 5 April 2009. The sentence continued to run despite George not being in custody, and once the sentence had expired, the magistrate could not lawfully order further imprisonment. The court noted that the magistrate was functus officio and that issuing a new warrant would amount to re-sentencing. The respondent conceded the appeal should be allowed, and the court quashed the order of the magistrate. The appellant was discharged.

Orders