Icely v O'Brien - [2003] NTSC 105

Icely v O’Brien [2003] NTSC 105
PARTIES:IAN ROSS ICELY

v
JAMIE THOMAS O’BRIEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:20308726 (JA 31/2003)
DELIVERED:  30 OCTOBER 2003
HEARING DATES:  14 OCTOBER 2003
JUDGMENT OF:  MILDREN J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:R Goldflam
Respondent:  C Roberts
Solicitors:
Appellant:NTLAC
Respondent:  DPP
Judgment category classification:    C
Judgment ID Number:
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Icely v O’Brien [2003] NTSC 105

No. 20308726 (JA 31/2003)
BETWEEN:

IAN ROSS ICELY

Appellant

AND:

JAMIE THOMAS O’BRIEN

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 30 October 2003)

This is an appeal against sentence from the Court of Summary Jurisdiction. The appellant pleaded guilty to two counts of assaulting police in the execution of their duty, contrary to s 189A of the Criminal Code; going armed in public within the boundaries of a town, contrary to s 78(2) of the Firearms Act; having in his possession a firearm he was not licensed to possess, contrary to s 58 of the Firearms Act; possessing an unregistered firearm, contrary to s 59 of the Firearms Act; and, being in possession of a firearm, failed to comply with the storage and safekeeping requirements of that firearm, contrary to s 46 of the Firearms Act. The maximum penalties applicable were as follows:
(a)For the breaches of s 189A of the Criminal Code, 5 years’ imprisonment, but with a jurisdictional limit of 2 years if tried summarily.
(b)For the breach of s 78(2) of the Firearms Act, 20 penalty units or 6 months’ imprisonment.
(c)For the other breaches of the Firearms Act, 50 penalty units or 12 months’ imprisonment.
A penalty unit is defined by the Penalty Units Act to be an amount of $110. Therefore, 50 penalty units amount to $5,500 and 20 penalty units to $2,200.
The learned Deputy Chief Magistrate imposed an aggregate sentence of imprisonment for 12 months on the assault police charges, and ordered that that sentence be suspended after 6 months and be subject to supervision after his release. On the firearms charges, the appellant was convicted without further penalty.
The grounds of appeal are:
1.That the sentence was manifestly excessive.
2.That the learned magistrate erred in failing to comply with s 103 of the Sentencing Act.
3.That the learned magistrate erred in speculating that the offender caused substantial psychological damage to the victims.
Ground 2 – failure to comply with s 103 of the Sentencing Act
It is not in dispute that the learned magistrate did not have the benefit of any report from the Director of Correctional Services as to the appellant’s suitability for supervision. Section 103 of the Sentencing Act provides:
“(1)A court shall, before imposing a sentence on an offender that requires the offender to be under the supervision of a probation officer, have regard to a report of the Director as to the suitability of the offender to be…

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 Icely v O'Brien

Details

AGLC: Icely v O'Brien [2003] NTSC 105
Case: [2003] NTSC 105
Decision Date: 30 OCTOBER 2003

CaseChat Overview and Summary

The appellant, Icely, appealed against his conviction and sentence imposed by the Northern Territory Magistrates Court. The incident involved the appellant approaching police officers with a cocked pump-action shotgun during a domestic dispute in Tennant Creek. The appellant pleaded guilty, but he contested the severity of the sentence. The court was tasked with determining whether the sentence was manifestly excessive and whether there were any errors in the sentencing process.

The primary legal issue was whether the sentence imposed by the magistrate was manifestly excessive, taking into account the appellant's criminal history and the circumstances of the offence. The appellant argued that the sentence was too harsh, particularly considering he had no prior convictions for assaulting police. The court also had to address whether the magistrate's comments about the potential psychological impact on the police officers constituted an error.

The court found that the appellant's criminal history, which included convictions for resisting arrest, obstructing police, and breaching domestic violence orders, justified a severe sentence. The court emphasised that the legislature expected courts to comply with procedural requirements, but the failure to do so does not invalidate the sentence. The court held that the sentence was not manifestly excessive given the appellant's history and the seriousness of the offence. The court also concluded that the magistrate's comments about the potential psychological impact on the police officers did not constitute a significant error in the sentencing process.

The appeal was dismissed, and the original sentence imposed by the magistrate was upheld. The court affirmed that the sentence was appropriate given the appellant's criminal history and the circumstances of the offence.

Orders

Orders of the court

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Background

Background to the litigation

There is no substance to this ground. Despite the use of the word “shall” in s 103(1), it is clear that the failure to comply with the requirements of s 103(1) has no legal consequences. None are prescribed by the Act. The requirements of s 103 are purely procedural. Section 110 of the Act provides that the failure to comply with a procedural requirement of the Act does not invalidate any sentence imposed by it. Furthermore, the matter of the obtaining of a report has now been attended to, so that no injustice has been done. Of course, this does not mean that courts can deliberately fail to comply with s 103(1). Clearly, the legislature expects that the courts will do their best to comply.Facts Before dealing with the remaining grounds, it is necessary to outline the facts. They were summarised by his Worship as follows:“The facts in short compass are that following a domestic situation that had arisen on 8 June of this year in Tennant Creek, the defendant was ordered to leave the house of the person with whom he had been living for the last few months. He apparently declined to do so and the police were called. When the police arrived the defendant approached them brandishing a pump-action shotgun.And, in the presence of the police and while it was pointed at them in their direction, he cocked the weapon and placed his finger upon the trigger. The police officers ran for safety. Ultimately the defendant left the premises, carried the firearm through the streets of Tennant Creek and ultimately got rid of it in a nearby paddock and then returned to surrender to the police.The defendant is aged about 30. He is an under-performer in society with substantial offending in four States, but no real history of assault. In Queensland he has obstructed the police in the execution of their duty in the year 2000. In New South Wales he resisted arrest and has four convictions for that in 1992 on two separate occasions.He has had a domestic violence order against him in Queensland and in the year 2000 has breached it. He has also obstructed the police in the execution of their duty in Queensland in the year 2000 and breached a domestic violence order in the year 2001. He has convictions suggesting he is a drug user.” His Worship accepted that the appellant intended no harm to the police. The weapon was not loaded. No victim impact statement was tendered by the prosecutor, the only evidence being that, at the time the weapon was cocked and pointed in their direction, the two police officers feared for their lives and, believing that the appellant was about to shoot, took cover.Ground 3 – the learned magistrate speculated about the damage to the victims During his sentencing remarks, his Worship said:“The police involved must have had a huge shock when confronted with a firearm capable of killing them. It was cocked in their presence and the defendant’s finger was on the trigger, it would be surprising if the police officers concerned did not suffer substantial psychological problems as a result.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case, the appellant had pleaded guilty, but he also had a number of prior convictions in New South Wales, Queensland and Western Australia, albeit none for assaulting police. Nevertheless, he has priors for resisting arrest, obstructing police and for breaching domestic violence orders. I consider that, in the circumstances, it has not been shown that the sentences imposed were manifestly excessive.Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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