Hales v O'Neill - [2000] NTSC 31

Hales v O’Neill [2000] NTSC 31
PARTIES:PETER WILLIAM HALES

v
SHANE ROBERT O’NEILL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 21/00 JA22/00   (9928774 & 20004246)
DELIVERED:  22 May 2000
HEARING DATES:  12 May 2000
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL – APPEAL AGAINST SENTENCE
Appeal from Court of Summary Jurisdiction – sentenced respondent to six months imprisonment – suspended after three months – appeal – on grounds that manifestly inadequate and failure to take into account period in custody for breach of bail – basis of appeal is that Magistrate’s sentencing discretion miscarried – took into account subjective features – inadequacy of the sentence is apparent or plain – appeal allowed
Sentencing Act1995 (NT), s 40 (1), (2) and (6), s 43
Thompson v Mamarika Supreme Court of the Northern Territory Martin CJ unreported 23 December 1993; Leaney v Bell (1992) 108 FLR 360; R v Mulholland (1991) 1 NTLR 1 ; Lade v Mamarika (1986) 83 FLR 312; Blackman v Police Supreme Court of South Australia Bleby J unreported 1 6 March 1998; R v Henry (1999) 46 NSWLR 346; Everett v The Queen (1994) 181 CLR 295, referred to.
Gokel v Silverthorne Supreme Court of the Northern Territory Martin CJ unreported 14 April 2000, considered.
R v Tait (1979) 24 ALR 473, applied.

REPRESENTATION:
Counsel:
Appellant:I Rowbottam
Respondent:  D Conidi
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:        C
Judgment ID Number:  tho20009
Number of pages:  18

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hales v O’Neill [2000] NTSC 31
JA22/00 (9928774 & 20004246)

BETWEEN:
PETER WILLIAM HALES

Appellant
AND:
SHANE ROBERT O’NEILL

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 22 May 2000)

[1] This is an appeal from a decision of Mr Loadman SM who on 31 March 2000 sentenced the respondent to a total period of six months imprisonment backdated to 25 February 2000. The sentence of six months imprisonment was suspended after the respondent had served three months and his Worship specified a period of two years during which the offender was not to commit an offence punishable by imprisonment if the offender was to avoid being sentenced to serve the balance of the three months imprisonment.

[2]The appeal by the Crown is on the following grounds:
(1)that the sentence was manifestly inadequate.
(2)that there was a failure to properly take into account period in custody for breach of bail.

[3]A third ground of appeal – that the learned stipendiary magistrate failed to comply with s 52 of the Sentencing Act 1995 (NT) was withdrawn on the day of the hearing of the appeal.
[4]A schedule of the actual charges was usefully prepared by counsel for the appellant as part of the Crown’s written summary of submissions on behalf of the appellant. I reproduce that schedule hereunder:

“File 9928774

Count

Date

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 Hales v O'Neill

Details

AGLC: Hales v O'Neill [2000] NTSC 31
Case: [2000] NTSC 31
Decision Date: 22 May 2000

CaseChat Overview and Summary

This is an appeal from a decision of the Court of Summary Jurisdiction where the respondent was sentenced to six months imprisonment, suspended after three months. The appeal by the Crown is on the grounds that the sentence was manifestly inadequate and that there was a failure to properly take into account the period in custody for breach of bail. The appeal court agreed that the inadequacy of the sentence was apparent or plain. The court held that the sentencing magistrate's discretion miscarried by placing too great an emphasis on the issue of rehabilitation and too little emphasis on the need for general and specific deterrence. The appeal was allowed, and the respondent was re-sentenced to 12 months imprisonment, suspended after six months, with a two-year non-re-offending condition.

Orders