Harding v Kendrick - [2013] NTSC 52

Harding v Kendrick [2013] NTSC 52
PARTIES:HARDING, Marc

v
KENDRICK, Suzanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 29 of 2013 (21314126)
DELIVERED:  22 August 2013
HEARING DATES:  29 July 2013
JUDGMENT OF:  HILEY J
CATCHWORDS:

CRIMINAL LAW – sentencing - justices appeal - unlawful possession of cannabis – whether conviction should have been recorded – whether sentence manifestly excessive – Sentencing Act (NT) s 8 – consequences of recording a conviction – no error - appeal dismissed.
Misuse of Drugs Act (NT) s 9, s 23.
Sentencing Act (NT) s 8.
Hesseen v Burgoyne [2003] NTSC 47; The Queen v Briese (1997) 92 A Crim R 75, applied.
Clarke v The Queen [2009] NTCCA 5; Dinsdale v The Queen (2000) 202 CLR 321, Hampton v The Queen [2008] NTCCA 5, referred to.
REPRESENTATION:
Counsel:
AppellantKoulla Roussos
Respondent:  Imogen Taylor
Solicitors:
Appellant:
Respondent:  Director of Public Prosecutions
Judgment category classification:   B
Judgment ID Number:  Hil1308
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Harding v Kendrick [2013] NTSC 52
No JA 29 of 2013 (21314126)
BETWEEN:

MARC HARDING

Appellant

AND:

SUZANNE KENDRICK

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 22 August 2013)

This is an appeal against a sentence imposed by the Court of Summary Jurisdiction on 17th April 2013 for an offence committed on 2nd April 2013 at Alice Springs, namely, the unlawful possession of cannabis plant material, a dangerous drug specified in Schedule 2 of the Misuse of Drugs Act (the Act), contrary to s 9(1)(f)(ii) of that Act. The learned magistrate convicted the appellant and imposed a $400 fine with a victims levy of $40.
The appellant was riding his motorcycle on the Stuart Highway near Alice Springs when he was apprehended at a vehicle checkpoint. His motorcycle was searched by police, and 14 grams of cannabis was found in his back pack.
The appellant pleaded guilty at the first opportunity and submissions were made on his behalf on 17th April.
The appellant appeals on two grounds:
(a)that the learned magistrate erred in law in recording a conviction; and
(b)that the sentence was manifestly excessive.
The appellant’s primary contention was that no conviction should have been entered.
Section 8 of the Sentencing Act 1995 (NT) provides as follows:
"(1)In deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including -
(a)the character, antecedents, age, health or mental condition of the offender;
(b)the extent, if any, to which the offence is of a trivial nature; or
(c)the extent, if any, to which the offence was committed under extenuating circumstances."

Hearing on 17 April 2013

The appellant was represented at the hearing by counsel. Counsel submitted that the matter should be dealt with “on a parallel with an infringement notice." Counsel pointed out that in many cases the police officer…

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 Harding v Kendrick

Details

AGLC: Harding v Kendrick [2013] NTSC 52
Case: [2013] NTSC 52
Decision Date: 22 August 2013

CaseChat Overview and Summary

In Harding v Kendrick, the matter before the court involved an appeal by the respondent, Kendrick, against his sentencing for unlawful possession of cannabis. The appeal was heard in the Northern Territory Court of Appeal, with the appellant, Harding, seeking to uphold the original sentence. The central issue before the court was whether the conviction should have been recorded and if the sentence was manifestly excessive under the Sentencing Act (NT).

The court was required to determine if there was any error in the lower court's decision to record a conviction and to assess whether the sentence imposed was manifestly excessive. The appeal hinged on the interpretation of the consequences of recording a conviction as outlined in section 8 of the Sentencing Act (NT). The appellant argued that the conviction should not have been recorded due to the respondent's minimal culpability and the absence of aggravating factors. The appellant also contended that the sentence was excessively harsh, given the respondent's circumstances.

The court examined the statutory provisions and concluded that there was no error in the lower court's decision to record a conviction. The court found that the respondent's culpability warranted a conviction and that the sentence imposed was not manifestly excessive. The appeal was dismissed, affirming the original sentencing decision. The court held that the sentencing judge had appropriately considered all relevant factors and had not erred in imposing the sentence.

Orders