Grivell v Mackley - [2008] NTCCA 6

Grivell v Mackley [2008] NTCCA 06
PARTIES:GRIVELL, Dion John
v

THE QUEEN

AND

MACKLEY, Shaun Edward

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NOS:CA 16 of 2007 (20606303) and
CA 2 of 2008 (20605878)

DELIVERED:  15 MAY 2008
HEARING DATES:  22 APRIL 2008
JUDGMENT OF:  MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ
APPEAL FROM:  ANGEL J, 27 SEPTEMBER 2007
CATCHWORDS:

APPEAL – CRIMINAL LAW
Appeal against sentence – whether sentence manifestly excessive – assault causing harm - worst category of the offence of this type – personal circumstances in mitigation – non-parole period – appeal allowed – re-sentenced.
Criminal Code Act 2002 (NT), s 188(1), (2)(a)(d)(m); Sentencing Act 1995 (NT)
CEV v The Queen [2005] NTCCA 10, distinguished.
Bugmy v The Queen (1990) 169 CLR 525; Deakin v The Queen (1984) 58 ALJR 367; Power v The Queen (1973) 131 CLR 623; The Queen v Shrestha (1991) 173 CLR 48, followed.
REPRESENTATION:
Counsel in Grivell v The Queen SCC No: 20606303
Appellant:R Goldflam
Respondent:  N Rogers
Solicitors:
Appellant:NT Legal Aid Commission
Respondent:  Northern Territory Director of Public Prosecutions
Counsel in Mackley v The Queen SCC No: 20605878
Appellant:C McDonald QC
Respondent:  N Rogers
Solicitors:
Appellant:NT Legal Aid Commission
Respondent:  Northern Territory Director of Public Prosecutions
Judgment category classification:      B
Judgment ID Number:  Mar0805
Number of pages:  25

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Grivell & Mackley v R [2008] NTCCA 06

SCC Nos. CA 16 of 2007 (20606303) and CA 2 of 2008 (20605878)
CA 16 of 2007 BETWEEN:
(20606303)
DION JOHN GRIVELL

Appellant
AND:
THE QUEEN

Respondent
CA 2 of 2008
(20605878)
BETWEEN:
SHAUN EDWARD MACKLEY

Appellant
AND:
THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ
REASONS FOR JUDGMENT
(Delivered 15 May 2008)
Martin (BR) CJ:
Introduction

The appellants pleaded guilty to two offences of assault, both of which occurred in circumstances of aggravation. The appellant Mackley was sentenced to four years imprisonment on each count with one year of the sentence on count 2 to be served concurrently with the sentence on count 1. The total head sentence was seven years in respect of which a non-parole period of four years and six months was fixed.
The appellant Grivell was sentenced to three years and six months imprisonment on each count with one year of the sentence on count 2 to be served concurrently with the sentence imposed on count 1. The total head sentence was six years imprisonment in respect of which a non-parole period of three years and six months was fixed.
Each appellant appeals on the basis that the individual sentences and periods to be served were manifestly excessive and the learned sentencing Judge erred in giving insufficient weight to matters such as totality and time spent in custody prior to being sentenced. In addition, each appellant complains that the Judge…

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 Grivell v Mackley

Details

AGLC: Grivell v Mackley [2008] NTCCA 6
Case: [2008] NTCCA 6
Decision Date: 15 MAY 2008

CaseChat Overview and Summary

This case concerned an appeal against sentence by two appellants, Grivell and Mackley, who had been convicted of assault causing harm. The appellants argued that their sentences and the imposed non-parole periods were manifestly excessive, and that the sentencing judge had failed to adequately consider the totality of their offending and the time they had already spent in custody. The offences involved a joint intention to assault a victim, followed by repeated assaults with kicks and a metal baton at an abandoned residence in Alice Springs.

The primary legal issues before the court were whether the sentences imposed were demonstrably too severe, and whether the non-parole periods exceeded the statutory minimum of fifty percent of the total head sentence. The court was required to assess the severity of the assault, considering the nature of the injuries sustained by the victim, and to weigh these against any mitigating factors presented by the appellants. The court also had to determine if the sentencing judge had given sufficient weight to the principle of totality and the pre-sentence custody.

The court found that while the injuries were not life-threatening, the victim had endured severe and painful beatings. The court applied established sentencing principles, including those from cases such as *Bugmy v The Queen* and *The Queen v Shrestha*, to assess the proportionality of the sentence. The court determined that the sentencing judge had erred in imposing sentences that were manifestly excessive, particularly in light of the mitigating circumstances and the totality of the offending. The court also found that the non-parole periods were incorrectly calculated.

Consequently, the appeal was allowed. The court quashed the original sentences and imposed new, reduced sentences and non-parole periods, reflecting a more appropriate assessment of the offending and the appellants' circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Each appellant appeals on the basis that the individual sentences and periods to be served were manifestly excessive and the learned sentencing Judge erred in giving insufficient weight to matters such as totality and time spent in custody prior to being sentenced. In addition, each appellant complains that the Judge erred in imposing a non-parole period which exceeded the statutory minimum of fifty percent of the total head sentence. Facts of Offences During the evening of Friday 27 January 2006 both appellants communicated several times via mobile telephone. They discussed and formed a joint intention to go out and assault someone. Grivell armed himself with an extendable metal baton. The appellants met in the vicinity of Kurrajong Drive in Alice Springs and walked through the centre of the city to McDonalds where they purchased food. They then walked to an abandoned house at North Stuart Highway known as the old Elder’s staff quarters. The house was a well known drinking location for Aboriginal people. The appellants entered the residence and walked through it until they located the middle aged Aboriginal male victim who was lying on the floor of a bedroom. The appellants then took turns assaulting the victim by kicking him in the chest, body and head area and by striking him with the metal baton. Mackley subsequently told a psychologist that Grivell used the baton to strike the victim repeatedly around the arms and legs. He said he was not sure if the baton made contact with the victim’s head. According to the Crown facts with which the appellants agreed, after attacking the victim they left the area and, a short time later, they returned to the same residence and again entered the bedroom of the victim. They took turns in assaulting the victim by kicking him and striking him with the baton before again leaving the area. Mackley told the psychologist that after the first assault they walked around the block and Grivell wanted to return and check the status of the victim. He said he followed Grivell into the premises where, unprovoked, Grivell began attacking the victim with the baton. Mackley told the psychologist that he, Mackley, then “stomped” on the victim “a few times”. Later that night after returning to his home residence, Grivell removed the shoes and trousers worn during the assault and threw them into the rubbish. The sentencing Judge correctly found that while the injuries sustained by the victim were not life threatening, the victim had been subjected to severe and painful beatings. His Honour summarised the injuries as follows:“… [T]he victim sustained two superficial abrasions, one measuring approximately two centimetres in diameter, the other three by one centimetre just above the outer margin of the left eyebrow. There was a ragged abrasion on the bridge of the nose measuring approximately three by two centimetres. Immediately below the midline of the lower lip there was a ragged transverse two centimetre laceration extending into the superficial tissue only.In the midline of the forehead approximately six centimetres above the bridge of the nose there was an oblique one centimetre ragged superficial laceration. On the left anterior parietal scalp just to the left of the midline and approximately 13 centimetres posterior to the left eyebrow there was a three centimetre laceration. Immediately above the right breast there was an oval area of poorly defined purple bruising measuring approximately nine centimetres by three centimetres. On the left upper flank just below the medial wall of the axilla there was a seven centimetre vertical superficial laceration.On the right mid postero lateral flank there were three abrasions. The upper most was linear measuring approximately five centimetres in length. Approximately eight centimetres below this there was a further abrasion being somewhat cruciform in shape surrounded by purple bruising. Just lateral to the spinal midline there was a third two centimetre diameter superficial abrasion. There was an oblique one centimetre superficial laceration to the right-hand. On the outer upper tibial surface of the lower right leg there were three crusted abrasions. The uppermost of these was approximately ten centimetres below the knee joint. The other two areas of abrasion being present approximately five centimetres and seven centimetres respectively below the uppermost.In short, attributable to your assaults the victim suffered abrasions around the left eye and on the bridge of the nose, lacerations to the forehead, lower lip, left side of the head, bruising to the right upper chest, abrasions on the right flank, and laceration to the left flank, and a laceration at the base of the thumb on the right-hand.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.