JA v Nicholas - [2014] NTSC 10

JA v Nicholas & Ors [2014] NTSC 10

PARTIES:JA
v

NICHOLAS, Sally

and

MARSHALL, Wade Gordon

and

WOOD, Paul Jason

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 50 of 2013 (21320515),
JA 51 of 2013 (21330922) and
JA 52 of 2013 (21345781)

DELIVERED:  26 MARCH 2014
HEARING DATES:  18 MARCH 2014
JUDGMENT OF:  KELLY J
APPEAL FROM:  S OLIVER SM
REPRESENTATION:
Counsel:
Appellant:J Hunyor
Respondent:  D Jones
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of Director of Public Prosecutions
Judgment category classification:   C
Judgment ID Number:  Kel14002
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
JA v Nicholas & Ors [2014] NTSC 10

Nos. JA 50, 51 & 52 of 2013 (21320515, 21330922, 21345781)
BETWEEN:

JA
Appellant

AND:

SALLY NICHOLAS,
WADE GORDON MARSHALL
PAUL JASON WOOD
Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 26 March 2012)

The appellant is a 14 year old boy. From the age of 5, he grew up in and around the community of Daly River until the age of 12, when his family moved to Darwin. Before coming to Darwin, his family was living at the Woodygupildiyerr Outstation, where he was attending school with another 8 – 10 children.
In 2013, the appellant was enrolled at Rosebery Middle School, but was not attending school.
On the night of 7 May 2013 (between 11.00 pm and 3.00 am the next morning) the appellant and some co-offenders unlawfully entered a unit at 410 Vanderlin Drive, Wagaman and stole property including some alcohol and a set of car keys. (One of the co-offenders had jimmied open the front door.) They used the stolen car keys to take a car. They drove off in the car and abandoned it after driving it up onto a gutter and puncturing a tyre.
On the night of 8 May 2013 (between 11.00 pm and 1.00 am the next morning) the appellant and a number of co-offenders decided to unlawfully enter a unit in 28 Bradshaw Terrace and steal property. They saw the occupants turn off the lights and waited until they thought the occupants were asleep. The co-offenders cut the fly wire on the door, then they entered and stole some property including a wallet and two sets of car keys. The appellant and other co-offenders kept look out.
They used one set of keys to take one of the cars, and about two hours later returned and took the other car.
On the following evening (9 May 2013) the appellant and some co-offenders went to Mindil Beach Markets where they stole a woman’s handbag from one of the stalls. The appellant picked up some car keys that had fallen from the bag and got the others to help him look for the car to steal. When they found the car, one of the co-offenders drove it away with the others, including the appellant, as passengers. They…

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 JA v Nicholas

Details

AGLC: JA v Nicholas [2014] NTSC 10
Case: [2014] NTSC 10
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

The appellant, a 14-year-old boy, appealed against the sentence imposed on him by the Youth Court. The appellant had a history of offending behaviour, including unlawful entry, theft, and dangerous driving. The magistrate imposed a sentence of seven months detention, backdated to take into account time already spent in custody, and suspended from a future date. The appellant appealed on several grounds, including that the magistrate failed to consider detention as an option of last resort and did not give sufficient weight to his prospects of rehabilitation. The court considered the appellant's arguments and found that the magistrate had not erred in her sentencing decision. The magistrate had considered the seriousness of the offending, the appellant's lack of rehabilitation, and the need to protect the community. The court also found that the magistrate had not neglected to consider the appellant's early guilty pleas and cooperation with police.

The court dismissed the appeal and upheld the sentence imposed by the magistrate. The court found that the magistrate had considered all relevant factors in imposing the sentence and had not erred in her decision. The court noted that the appellant had a history of offending behaviour and had breached his good behaviour bonds multiple times. The court also found that the magistrate had considered the principle of totality in imposing the sentence and had not neglected to consider the appellant's prospects of rehabilitation. The court concluded that the sentence was appropriate and did not interfere with the sentence imposed by the magistrate.

Orders