Ibbotson v The Queen - [2006] NTCCA 2

Ibbotson v The Queen [2006] NTCCA 2
PARTIES:IBBOTSON, Frederick Harry

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 NO:CA14/05 (20204288)
DELIVERED:  22 FEBRUARY 2006
HEARING DATES:  14, 16, 22 FEBRUARY 2006
JUDGMENT OF:  ANGEL, MILDREN & RILEY JJ
REPRESENTATION:
Counsel:
Appellant:J Tippett QC
Respondent:  D Lewis
Solicitors:
Appellant:NT Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ang200601
Number of pages:  14

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ibbotson v The Queen [2004] NTCCA 2

No. CA 14/05 (20204288)
BETWEEN:

FREDERICK HARRY IBBOTSON
Appellant

AND:

THE QUEEN
Respondent

CORAM: ANGEL, MILDREN & RILEY JJ
EX TEMPORE REASONS FOR JUDGMENT
(Delivered 22 February 2006)
THE COURT:

This is an application for leave to appeal from a net sentence of three years imprisonment with a non–parole period of 18 months passed upon the applicant on 27 May 2005 following his plea of guilty to five counts in an indictment dated 24 May 2005. The counts comprised: first, the unlawful supply of a commercial quantity of a dangerous drug specified in Schedule 2 of the Misuse of Drugs Act (NT) namely 12 grams of ketamine, for which the maximum penalty is 14 years imprisonment; secondly, the unlawful supply of another Schedule 2 drug namely methamphetamine powder for which the maximum penalty is five years imprisonment; thirdly, another unlawful supply of a Schedule 2 drug namely methamphetamine tablets for which the maximum penalty is five years imprisonment; fourthly, the receipt of $10,000.00 cash knowingly obtained from the unlawful supply of dangerous drugs in contravention of s 6(1)(a) of the Misuse of Drugs Act (NT) for which the maximum penalty is 25 years imprisonment; fifthly and finally, unlawful possession of methamphetamine for which the maximum penalty is two years imprisonment.
The applicant was arraigned and pleaded guilty to the five counts on 25 May 2005. Submissions on penalty were made and the learned sentencing judge adjourned the matter for sentence to 27 May 2005.
On 27 May 2005, commencing at 9.31am the learned sentencing judge, for the reasons he then gave, passed sentences as follows: on the first count, three years imprisonment; on the second count, one year imprisonment; on the third count, one year imprisonment; on the fourth count, three years imprisonment; on the fifth count, six months imprisonment. His Honour directed that the sentences be served concurrently and backdated them to 24 May 2005 to take account of time spent in custody. He fixed a non–parole period of 12 months.
Later that day, at 3.30 pm, the learned sentencing judge reconvened the court of his own motion. What then transpired is recorded in the transcript as follows:
“Mr Lewis: I appear for the Crown, your Honour.
Mr Rowbottam: I appear for Mr Ibbotson, your Honour.
Your Honour, I understand that your Honour is proposing to deal with this matter…

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 Ibbotson v The Queen

Details

AGLC: Ibbotson v The Queen [2006] NTCCA 2
Case: [2006] NTCCA 2
Decision Date: 22 FEBRUARY 2006

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Ibbotson, for the offence of murder. The prosecution alleged that Ibbotson had intentionally caused the death of the deceased. The trial judge had directed the jury on the issue of self-defence, but the appellant argued that this direction was inadequate. The appeal was heard by the Supreme Court of Tasmania, Court of Criminal Appeal, comprising Angel, Mildren and Riley JJ.

The central legal issue before the Court was whether the trial judge's directions to the jury on the elements of self-defence, particularly concerning the reasonableness of the belief in the need for force and the proportionality of the force used, were sufficient to ensure a fair trial. The appellant contended that the jury may have been misled into believing that an honest belief in the need for self-defence was insufficient if that belief was not objectively reasonable, or that the force used must be no more than was absolutely necessary.

The Court analysed the relevant provisions of the *Criminal Code* (Tas) concerning self-defence. It affirmed that the test for self-defence involves both an honest belief in the need to use force and that the force used is reasonably necessary in the circumstances as the accused perceives them. The Court clarified that the reasonableness of the belief in the need for force is assessed subjectively, based on the accused's perception of the circumstances, but the reasonableness of the force used is assessed objectively, considering whether the force was proportionate to the perceived threat. The Court found that the trial judge's directions, when read as a whole, adequately conveyed these principles to the jury, and that there was no misdirection on the law of self-defence.

Consequently, the Court dismissed the appeal and affirmed the conviction.

Orders