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Horrigan v Rowbottam & Ors [2005] NTSC 60

PARTIES: HORRIGAN, Dennis

v

ROWBOTTAM, Helen
AND:
McKINNEY, Tania
AND:
CARLON, Lorraine Joy

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION exercising Territory jurisdiction

FILE NO: No JA 61/04 (20405389)
No JA 62/04 (20406231)
No JA 95/04 (20407785)
No JA 82/04 (20408286)

DELIVERED: 4 October 2005

HEARING DATE: 1 June 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

MAGISTRATES – Appeals from Magistrates
CRIMINAL LAW – Offences against the person – property offences

Appeals against sentence – whether there was a failure to comply with the totality principle – whether sentences were manifestly excessive – appeal dismissed

Criminal Code; Domestic Violence Act
Thomas, Principles of Sentencing, 2nd ed (1979)
Ellis v The Queen [2005] NTCCA 1; R v Gordon (1994) 71 A Crim R 459; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Regina v The Queen [2004] NTCCA 9; Whitlam v R [1993] NTCA 19, applied

REPRESENTATION:

Counsel:
Appellant: L McDade
Respondents: S Geary

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondents: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Sou0509
Number of pages: 26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Horrigan v Rowbottam & Ors [2005] NTSC 60
No. JA 61/04 (20405389); No. JA 62/04 (20406231);
No. JA 95/04 (20407785); No. JA 82/04 (20408286)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentences handed down in the Court of Summary Jurisdiction in Darwin
BETWEEN:

DALLAS HORRIGAN
Appellant

AND:

HELEN ROWBOTTAM
AND:
TANIA McKINNEY
AND:
LORRAINE JOY CARLON
Respondents

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 4 October 2005)

Introduction

[1] Dallas Horrigan, the appellant, has filed four appeals against a number of sentences of imprisonment that were imposed on him by the Court of Summary Jurisdiction during 2004. The appeals are brought in respect of Court of Summary Jurisdiction proceedings numbered 20405389, 20406231, 20407785 and 20408286. The sentences of imprisonment were imposed on the appellant for a number of offences that he committed against Karen Richardson, the victim, between 15 February 2005 and 2 April 2005. The appeals were heard together.

[2] On 15 February 2004 the appellant unlawfully assaulted the victim. On 5 May 2004 the appellant was charged on information for an indictable offence with aggravated assault (Court of Summary Jurisdiction proceeding number 20408286). On 3 June 2004 following a trial in the Court of Summary Jurisdiction the appellant was convicted of the aggravated assault. At the request of the appellant his sentencing for the offence was adjourned until 3 September 2004. On that date the appellant was sentenced to eight months imprisonment back dated to 24 March 2004. The sentence of imprisonment was ordered to be suspended immediately on 3 September 2004.

[3] On 1 March 2004 the…

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 Horrigan v Rowbottam

Details

AGLC: Horrigan v Rowbottam [2005] NTSC 060
Case: [2005] NTSC 60
Decision Date: 04 October 2005

CaseChat Overview and Summary

The appellant, Dallas Horrigan, brought four appeals against sentences of imprisonment imposed by the Court of Summary Jurisdiction in respect of a series of offences against the same victim, Karen Richardson, over a period of two months. The appeals were heard together in the Supreme Court of the Northern Territory. The principal grounds of appeal were that the sentences imposed by the Court of Summary Jurisdiction contravened the totality principle, or alternatively, were manifestly excessive. The court was required to determine whether the sentences complied with the totality principle and whether they were manifestly excessive.

The court found that the aggregate sentence of imprisonment imposed on the appellant was just and appropriate to his criminal conduct as a whole. The principle of totality was not offended and none of the individual sentences were manifestly excessive. Each sentencing magistrate had properly considered the principle of totality and had imposed sentences that were appropriate to the nature and seriousness of the offending. The court emphasised that the principle of totality does not require a sentencing court to adjourn sentencing until all outstanding matters involving an offender have been dealt with by the court. Instead, the principle requires each sentencing court to consider what would have been the likely effective sentence if the offender had been sentenced for all offences at one time, and if necessary, the latter sentencing court should reduce the sentence to ensure that the aggregate sentence properly reflects the totality of the offender’s criminal behaviour.

The court concluded that the aggregate sentence of imprisonment was appropriate to the whole of the appellant’s criminal conduct. The offending occurred over a period of about two months and escalated in nature and seriousness. The appellant attempted to physically impose his will on the victim, assaulted her on multiple occasions, invaded her home, and breached restraining orders. The court found that the total aggregate sentence imposed was not such as to deprive the appellant of the opportunity to be rehabilitated, and the main sentencing considerations were deterrence, including specific deterrence, punishment, denunciation, and protection of the community.

The court dismissed all four appeals and will hear the parties as to costs.

Orders