Gration v ONeill and Gration v Davis - [2011] NTSC 41

Gration v O’Neill & Gration v Davis [2011] NTSC 41
PARTIES: RICHARD BARRY GRATION

v
WAYNE O’NEILL
AND
RICHARD BARRY GRATION
v
STUART AXTELL DAVIS

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 42 OF 2010 (21006152) &

JA 44 OF 2010 (20941207)
DELIVERED:   15 JUNE 2011
HEARING DATES:   29 APRIL 2011
JUDGMENT OF:   MILDREN J
APPEAL FROM:   MR CAVANAGH SM
CATCHWORDS:
Sentencing Act, s 43(6)
Weapons Control Act, s 3, s 7(1), s 7(3), s 7(4), s 7(5), s 20

Veen v The Queen (No 2) (1988) 164 CLR 465; applied
Presswell v Bourgoyne [2005] NTSC 67; followed
Moore v Materna (1996) 136 FLR 142; Parnell v Rigby (2008) 24 NTLR 1; Pepperill v Burgoyne [2005] NTSC 50; R v Downie & Dandy [1998] 2 VR 517; R v Lui [2009] QCA 366; R v Olbrich (1999) 199 CLR 270; Russell v Littman [2006] NTSC 50; Van Dang v Moore [2007] NTSC 68; referred to
R v Story [1998] 1 VR 359
REPRESENTATION:
Counsel:
Appellant:   E Armitage
Respondent:   D Dalrymple
Solicitors:
Appellant:   Northern Territory Legal Aid Commission
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    C
Number of pages:   20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gration v O’Neill & Gration v Davis [2011] NTSC 41

No. JA 42 of 2010 (21006152) & JA 44 of 2010 (20941207)
BETWEEN:

RICHARD BARRY GRATION

Appellant

AND:

WAYNE O’NEILL

Respondent

and

RICHARD BARRY GRATION

Appellant

AND:

STUART AXTELL DAVIS

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 15 June 2011)

These matters are appeals against sentences imposed by the Court of Summary Jurisdiction.
The Facts
On 7 January 2010, the appellant appeared in the Court of Summary Jurisdiction and was sentenced in relation to a number of offences all committed on 2 December 2009 as detailed below:

1 Possess Controlled Weapon
In public place at night
25cm knife Sentenced to 4 months imprisonment to commence 2 December 2009.

2 Possess Controlled Weapon
In public place at night
20cm folding knife

3 Possess prohibited firearm
Single barrel Boito Gauge shotgun with no stock, and shortened barrel

4 Possess firearm without license
Single barrel Boito Gauge shotgun with no stock, and shortened barrel

5 Unlawfully possess property suspected of being stolen or unlawfully obtained
Single barrel Boito Gauge shotgun with no stock, and shortened barrel

6 Resist police in execution of duty

7 Possess Dangerous Drug
In a public place
Methylamphetamine Sentenced to 1 month imprisonment to be served concurrently with the penalty imposed on Counts 1 to 6.

8 Possess Dangerous Drug
Traffickable quantity
4.2g Morphine

9 Possess Dangerous Drug
Opium Convicted and not further punished

All sentences were ordered to be suspended from 13 January 2010 for 12 months on conditions including supervision and requiring the appellant to obey all directions in relation to attendance at the Royal Darwin Hospital, Opiate Pharmacotherapy…

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 Gration v ONeill and Gration v Davis

Details

AGLC: Gration v O’Neill & Gration v Davis [2011] NTSC 41
Case: [2011] NTSC 41
Decision Date: 15/06/2011

CaseChat Overview and Summary

In Gration v ONeill and Gration v Davis, the appellant challenged the sentences imposed by the Court of Summary Jurisdiction in the Northern Territory of Australia. The appellant had been sentenced in relation to offences committed on 2 December 2009 and subsequently found guilty of possessing a controlled weapon on 20 February 2010. The primary issues before the court were whether the sentences imposed were manifestly excessive, whether the magistrate had erred in his sentencing approach, and whether procedural fairness had been maintained. The appeal raised several grounds, including that the sentences were disproportionate, that the magistrate had failed to consider the totality principle, and that the magistrate had erred in his findings of fact and sentencing principles.

The court examined the principles of sentencing and the magistrate's discretion in imposing sentences. It held that the magistrate had not erred in exercising his discretion and that the sentences were proportionate to the crimes committed. The court found that the magistrate had appropriately considered the totality principle and the appellant's prior criminal record. It also concluded that the magistrate's findings of fact were supported by evidence and that procedural fairness had been maintained. The court found no merit in the appeal and dismissed the grounds raised by the appellant.

The court's reasoning underscored the importance of judicial discretion in sentencing and the deference owed to the original sentencing magistrate. It confirmed that the sentences were within the permissible range and that the magistrate had appropriately balanced the need for punishment and deterrence with the principles of proportionality and rehabilitation. The appeal was dismissed, and the original sentences were upheld.

Orders

Orders of the court

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Background

Background to the litigation

These matters are appeals against sentences imposed by the Court of Summary Jurisdiction.The Facts On 7 January 2010, the appellant appeared in the Court of Summary Jurisdiction and was sentenced in relation to a number of offences all committed on 2 December 2009 as detailed below: All sentences were ordered to be suspended from 13 January 2010 for 12 months on conditions including supervision and requiring the appellant to obey all directions in relation to attendance at the Royal Darwin Hospital, Opiate Pharmacotherapy program. As at 13 January 2010 when the appellant was released from custody, there remained outstanding a period of two months and 19 days imprisonment left to serve should he subsequently be found in breach of the conditions of his suspended sentence. On 20 February 2010, the appellant committed the offence of possessing a controlled weapon namely a hunting knife with a folded blade at night and was sentenced on 15 September by Mr Cavangh SM to two months imprisonment backdated to 1 August 2010. In relation to the remaining term of the suspended sentence imposed on 7 January 2010, the Court ordered the appellant to serve the “remaining term of two months and two weeks” of the suspended sentence cumulatively upon the two months imprisonment ordered in relation to the offence of possession of a controlled weapon at night. The total aggregate period of imprisonment thereby ordered was effectively four months and two weeks which would have expired on 13 December 2010.Grounds of Appeal The grounds of appeal are set out in the original Notice of Appeal and as further amended are as follows:1.That the overall sentence imposed by the learned sentencing Magistrate was manifestly excessive.2.Placed too much weight on the defendant’s prior record.3.That the learned sentencing Magistrate, in ordering the whole of the restored sentence to be served cumulatively, failed to take into account the totality principle.4.That the learned sentencing Magistrate erred in sentencing the appellant on findings of fact which included certain findings that are said to be in error.5.That the learned sentencing Magistrate acted upon a wrong principle when he found that the offence was prevalent, such finding being unsupported by submissions, evidence or reasons.6.That the learned sentencing Magistrate failed to accord procedural fairness to the appellant as to his finding that “it is becoming a very prevalent thing for men to carry these kinds of weapons”.7.That the learned sentencing Magistrate erred in that he failed to give proper consideration or weight and failed to identify any discount for the appellant’s plea of guilty and other matters raised in mitigation.Weapons Control Act Sub-section 7(1) of the Weapons Control Act provides:A person must not, without lawful excuse, proof of which is on the person, possess, carry or use a controlled weapon in a public place or school.Penalty: If the offender is a natural person – 200 penalty units or imprisonment for 12 months.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, it has not been demonstrated that his Honour erred in the exercise of his discretion. I would therefore dismiss this ground of appeal.Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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1	Possess Controlled Weapon In public place at night 25cm knife	Sentenced to 4 months imprisonment to commence 2 December 2009.
2	Possess Controlled Weapon In public place at night 20cm folding knife
3	Possess prohibited firearm Single barrel Boito Gauge shotgun with no stock, and shortened barrel
4	Possess firearm without license Single barrel Boito Gauge shotgun with no stock, and shortened barrel
5	Unlawfully possess property suspected of being stolen or unlawfully obtained Single barrel Boito Gauge shotgun with no stock, and shortened barrel
6	Resist police in execution of duty
7	Possess Dangerous Drug In a public place Methylamphetamine	Sentenced to 1 month imprisonment to be served concurrently with the penalty imposed on Counts 1 to 6.
8	Possess Dangerous Drug Traffickable quantity 4.2g Morphine
9	Possess Dangerous Drug Opium	Convicted and not further punished