Heath v Armstrong - [2017] NTSC 35

Heath v Armstrong [2017] NTSC 35
PARTIES:HEATH, Andrew
v

ARMSTRONG, Floyd

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 32 of 2016 (21643281)
DELIVERED:  8 May 2017
HEARING DATE:  13 April 2017
JUDGMENT OF:  BARR J
APPEAL FROM:  LOCAL COURT
CATCHWORDS:

CRIMINAL LAW – Sentencing – mandatory sentencing – aggravated assault – second or subsequent violent offence – mandatory minimum sentence of three months’ imprisonment – exceptional circumstances exception – Judge found ‘exceptional circumstances’ enlivened on the basis that, but for the mandatory sentencing regime, respondent’s sentence would have been suspended after one month only – Judge applied incorrect test – appeal allowed – sentence quashed – case remitted for further hearing in Local Court
Sentencing Act (NT) s 78CA(3), s 78 DD(2), s 78DI(1)(b), s 78DG
Local Court (Criminal Procedure) Act s 177(2)(c), s 177(2)(d)
R v Kelly [2001] 1 QB 198; R v Duncan [2015] NTCCA 2, 34 NTLR 201 applied
Wright v Valladares [2015] NTSC 59 referred to
REPRESENTATION:
Counsel:
Appellant:M Brennan
Respondent:  No appearance
Amicus Curiae:  D Butani
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Not applicable
Judgment category classification:    B
Judgment ID Number:  Bar1704
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Heath v Armstrong [2017] NTSC 35

No. LCA 32 of 2016 (21643281)
BETWEEN:

ANDREW HEATH

Appellant

AND:

FLOYD ARMSTRONG

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 8 May 2017)

This is a prosecution appeal against a sentence imposed by the Local Court on 21 September 2016. The grounds relied on are (1) error of law in the exercise of the sentencing discretion and (2) manifest inadequacy. Because I propose to uphold the appeal on the first ground, and remit the matter to the Local Court, it is unnecessary to decide the second ground.
On 21 September 2016, the respondent entered a plea of guilty to a male on female aggravated assault in which the victim suffered harm. The offending took place on 12 September 2016. The respondent was 25 years old at the time. The maximum penalty for the offence, with the admitted circumstances of aggravation, was a term of imprisonment of five years.
The facts in brief were as follows. The respondent and the victim had been in a domestic relationship for approximately seven years. On 12 September 2016, the respondent and the victim discussed ongoing problems in their relationship. The victim told the respondent she did not wish to continue in that relationship. Without warning, the respondent punched the victim once in the face, causing her lip to split and bleed. The respondent then left the scene.
The respondent had a number of relevant prior convictions. In November 2009, at the age of 18, he had committed a male on female aggravated assault in which the victim had been threatened with a weapon and suffered harm. He had also engaged in conduct in contravention of…

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 Heath v Armstrong

Details

AGLC: Heath v Armstrong [2017] NTSC 35
Case: [2017] NTSC 35
Decision Date: 8 May 2017

CaseChat Overview and Summary

In the case of Heath v Armstrong, the respondent was sentenced by a Magistrate of the Local Court to three months imprisonment for an offence of aggravated assault, with four weeks of the sentence suspended. The respondent appealed against the sentence, arguing that the Magistrate applied an incorrect test in finding that exceptional circumstances existed to permit the suspension of part of the mandatory minimum sentence. The appeal was heard in the Supreme Court of New South Wales, which found in favour of the respondent and quashed the sentence, remitting the matter to the Local Court for further hearing.

The legal issue before the Court was whether the Magistrate had applied the correct test in finding that exceptional circumstances existed to permit the suspension of part of the mandatory minimum sentence. The Court found that the Magistrate had indeed applied an incorrect test, as the test is not whether the court would, but for the operation of the mandatory sentencing provisions, impose a suspended sentence requiring an offender to serve a shorter period of actual imprisonment than the mandatory minimum. Nor is the test whether the court would, but for the operation of the mandatory sentencing provisions, consider the option of such a suspended sentence. The Court held that the word ‘exceptional’ describes a circumstance “which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon”. To qualify as ‘exceptional’, a circumstance “need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

The Court quashed the sentence and remitted the matter to the Local Court for further hearing, finding that the Magistrate had applied an incorrect test in finding that exceptional circumstances existed to permit the suspension of part of the mandatory minimum sentence. The Court emphasised that the test is not whether the court would, but for the operation of the mandatory sentencing provisions, impose a suspended sentence requiring an offender to serve a shorter period of actual imprisonment than the mandatory minimum. Nor is the test whether the court would, but for the operation of the mandatory sentencing provisions, consider the option of such a suspended sentence. The Court found that the Magistrate’s approach was tantamount to ignoring the clear statutory provisions of the mandatory minimum sentencing regime.

No final orders have been made in this case as the matter has been remitted to the Local Court for further hearing.

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

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Ratio Decidendi

Legal Principle Established

After her Honour obtained a report pursuant to s 103 of the Sentencing Act as to the suitability of the respondent to be under supervision on a suspended sentence, she proceeded to sentence. Her Honour’s remarks read, relevantly, as follows (underline emphasis added):[4]… You pleaded guilty to one count of aggravated assault. You have been before the court previously on an assault matter, but the last one was in 2011, so it has been some time. That is a significant gap in offending. You are young for sentencing purposes, and that is to be acknowledged in sentencing you today.Violence against women is just not acceptable. You need to get a clear understanding of that … You are young, and so rehabilitation is a particular focus of my sentence for you today.Ordinarily, something like this would straight away get three months imprisonment, without any suspension. But in your circumstances, taking into account your plea of guilty, your young age, the gap in your offending, the circumstances of this offence – which was a single punch, and while serious, it is not at the high end of what we see. …Taking into account all of that, but for the mandatory sentencing provisions I would ordinarily consider a suspended sentence for someone in your position, albeit a three month disposition, an appropriate one in my view. So that fact alone, the fact … that I would otherwise give you a suspended sentence but for the operation of the mandatory sentencing provisions, does enliven exceptional circumstances in accordance with previous decisions of the Supreme Court.I did indicate this morning that I considered exceptional circumstances to have been proven, and so for that reason I will sentence you and allow for a portion of your sentence to be suspended to allow you an opportunity to participate in some violent offender rehabilitation program. Her Honour then sentenced the respondent to 3 months imprisonment, backdated to 16 September 2016. Her Honour ordered that the sentence be suspended after four weeks, subject to a number of conditions, including supervision of the respondent by a Probation and Parole Officer. She fixed an operational period of 12 months from the date of the respondent’s release from prison. The learned Acting Judge applied an incorrect test for the ‘exceptional circumstances’ exemption in s 78DI Sentencing Act. The test is not whether the court would, but for the operation of the mandatory sentencing provisions, impose a suspended sentence requiring an offender to serve a shorter period of actual imprisonment than the mandatory minimum. Nor is the test whether the court would, but for the operation of the mandatory sentencing provisions, consider the option of such a suspended sentence. An approach relying on such tests would be tantamount to ignoring the clear statutory provisions of the mandatory minimum sentencing regime.[5] While the ‘exceptional circumstances’ exemption is intended to be broad, and the court may consider any matters it considers relevant,[6] the word ‘exceptional’ describes a circumstance “which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon”. To qualify as ‘exceptional’, a circumstance “need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.[7]