Gordon v Hales - [2006] NTSC 22

Gordon v Hales [2006] NTSC 22
PARTIES:GORDON, Pepperina

v
HALES, Peter William

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 1 of 2006 (20312908)
DELIVERED:  31 March 2006
HEARING DATES:  15 March 2006
JUDGMENT OF:  OLSSON AJ
CATCHWORDS:

MAGISTRATES – Appeal against sentence - whether sentence manifestly excessive - whether appropriate to have recorded conviction - whether criteria expressed in s 8(1) of Sentencing Act given due consideration - whether irrelevant consideration taken into account - appeal allowed.
Domestic Violence Act s 4; Sentencing Act s 8(1)

Davis v Hayward No JA 64/1996 (reproduced at [1997] 1 NTSC 203); Hesseen v Burgoyne [2003] NTSC 47, applied

Pillage v Coyne (2000) 113 A Crim R 27; Piva v Brinkworth (1992) 59 SASR 92, considered
REPRESENTATION:
Counsel:
Appellant:P Dwyer
Respondent:  E Armitage
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ols 0603
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Pepperina v Hales [2006] NTSC 22

No. JA 1 of 2006 (20312908)
BETWEEN:

PEPPERINA GORDON

Appellant

AND:

PETER WILLIAM HALES

Respondent

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 31 March 2006)
Introduction

This is an appeal against an order of the Chief Magistrate made on 4 January 2006, whereby he recorded a conviction against the appellant for an offence of, on 17 June 2003 at Darwin, having failed to comply with the terms of a restraining order issued in accordance with the Domestic Violence Act.
Having received submissions from the prosecutor and counsel for the appellant, the learned Chief Magistrate elected to record a conviction, but discharged the appellant without further penalty. He ordered her to pay a victim’s levy of $40.
The appellant appeals against that disposition on the ground that it is said that the learned Chief Magistrate erred in recording a conviction, having regard to the provisions of s 8(1) of the Sentencing Act.
Relevant narrative history

This was a somewhat stale matter.
It is not clear from the file when the appellant was charged with the offence to which I have referred. I infer that she was, at some stage, summoned to appear before the Court of Summary Jurisdiction at Darwin in respect of it.
The file endorsements indicate that she failed to appear when the matter was listed on 25 November 2003. A warrant for her apprehension was issued. She was eventually arrested on the warrant on 3 January 2006 and held in custody overnight prior to her appearance before the Court of Summary Jurisdiction. It is not clear why she failed to appear in 2003. No information seems to have been given to the learned Chief Magistrate in that regard.
When the matter came before the Court on 4 January 2006, the appellant was represented by counsel (Mr McGorey) and she pleaded guilty.
The learned Chief Magistrate was then informed…

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 Gordon v Hales

Details

AGLC: Gordon v Hales [2006] NTSC 22
Case: [2006] NTSC 22
Decision Date: 31 March 2006

CaseChat Overview and Summary

In the case of Gordon v Hales, the appellant challenged the sentencing decision made by the Chief Magistrate, arguing that the recorded conviction was manifestly excessive and that relevant statutory criteria were not properly considered. The appellant contended that the decision to record a conviction was influenced by irrelevant factors and that critical sentencing considerations under the Sentencing Act were overlooked. The appeal was heard and determined in the relevant court.

The primary legal issues before the court were whether the sentence was manifestly excessive and whether the appropriate criteria outlined in section 8(1) of the Sentencing Act were given due consideration. Additionally, the court had to determine if any irrelevant factors were taken into account during sentencing. These issues were central to the appellant's contention that the sentencing process contained errors that warranted appellate intervention.

The court found that the Chief Magistrate's decision to record a conviction was influenced by factors that were not pertinent to the proper application of section 8(1) of the Sentencing Act. Specifically, the Magistrate appeared to be unduly influenced by the appellant's failure to attend court in 2003, which was considered an irrelevant concern. Furthermore, the Magistrate did not adequately address the significant mitigating factors, such as the appellant's good character, the minor role she played in the incident, and the fact that she had been seriously assaulted and injured. The court concluded that these omissions constituted errors in the sentencing process. Therefore, the appeal was allowed, and the conviction recorded by the Chief Magistrate was set aside.

The final orders of the court were to allow the appeal and set aside the conviction recorded by the Chief Magistrate. This decision underscored the importance of adhering to statutory sentencing criteria and avoiding the consideration of irrelevant factors when determining an appropriate sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Armitage contended that, bearing in mind the foregoing considerations, no error had been demonstrated by the appellant. Conclusion A major difficulty that I have with the submissions made by Ms Armitage is that I find myself unable to accept the construction that she seeks to place on the sentencing remarks expressed by the learned Chief Magistrate. It seems to me that the only reasonable interpretation that can be placed on those reasons is that he based his decision to record a conviction on two principal matters, namely, first, what appeared to be a deliberate breach of the domestic violence order and the inherent seriousness of any such breach and, secondly, the appellant's failure to attend Court in 2003. In fact, he devoted no less than two out of the six short paragraphs of his sentencing remarks to the latter topic. Having announced that he was recording a conviction, he then separately and subsequently adverted to the appellant's good record and that she had spent a day in gaol as justifying a non imposition of any further penalty. It is significant that, in relation to the decision to record a conviction, he made no mention of the relevant s 8(1) considerations, specifically the prior good character of the appellant, the minor part that she had played in the overall incident and the important circumstance that she had been seriously assaulted and injured by White. Nor does he appear to have reflected on, or give due weight to, the fact that, in the two and a half years since the offence incident, the appellant had led a blameless existence. She had amply demonstrated rehabilitation and it was obvious that the likelihood of any re-offending was minimal. It seems to me, with respect, that, in approaching this matter, the learned Chief Magistrate may well have allowed his consideration of what was put to him to be diverted by what was, for present purposes, an irrelevant concern. He appears to have been preoccupied by the failure of the appellant to appear before the Court when originally summoned and to have allowed that aspect to assume some prominence in his thinking. Of course, the reason for that non-appearance did not ever emerge and there may have been a quite plausible explanation for it. Whether that be so or not, it was scarcely pertinent to a proper evaluation of the objective facts relevant to the potential application of s 8(1), in all the circumstances. Given the foregoing situation, I am compelled to the conclusion that error in the sentencing process has been demonstrated by the appellant, in that the decision to record a conviction was, at least in part, the product of the taking into account of an irrelevant consideration and also that it does not appear that due consideration was given to important s 8(1) factors that, in reality, strongly indicated the desirability of an approach under that section. Quite frankly, one would have thought that, if ever there was a situation that cried aloud for the application of those statutory provisions this was it, having regard to the very powerful factors identified by counsel for the appellant. Accordingly, I allow the appeal and set aside the conviction recorded.

Ratio Decidendi

Legal Principle Established

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