JNB v The Queen - [2011] NTCCA 5

JNB v The Queen [2011] NTCCA 5
PARTIES: JNB

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:   CA 26 of 2010 (20807446)
DELIVERED:   19 May 2011
HEARING DATES:   4 April 2011
JUDGMENT OF:   MILDREN, SOUTHWOOD, BLOKLAND JJ
APPEAL FROM:   KELLY J
CATCHWORDS:

CRIMINAL LAW – SENTENCING – Appeal against sentence – assessment of value of plea prior to a re-trial – plea to lesser charge – 3 grounds of Appeal – Failure to give adequate recognition to guilty plea – appropriate weight not given to prospects of rehabilitation – sentence manifestly excessive – Appeal Dismissed.
Criminal Code (NT) ss 131(A)(2) & (4), 132(1)(a), 410(c)
Sentencing Act (NT) ss 106A, 106B

R v Damaso (2000) 130 A Crim R 206; followed

Atholwood v The Queen (1999) 109 A Crim R 465; Cameron v The Queen [2001-2002] 209 CLR 339; Gilligan v The Queen [2007] NTCCA 08; Kelly v The Queen (2000) 10 NTLR 39; NJB v The Queen [2010] NTCCA 05; Siganto v The Queen (1998) 194 CLR 656; Spencer v R [2005] NTCCA 3; referred to.

REPRESENTATION:
Counsel:
Appellant:   Ian Read
Respondent:   Matthew Nathan
Solicitors:
Appellant:   Northern Territory Legal Aid Commission
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   Blo1105
Number of pages:   16

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
JNB v The Queen [2011] NTCCA 5

CA 26 of 2010 (20807446)
BETWEEN:

JNB

Appellant

AND:

THE QUEEN

Respondent

CORAM: Mildren, Southwood, Blokland JJ
REASONS FOR JUDGMENT
(Delivered 19 May 2011)

The Court:
Introduction

This appeal raises the question of the assessment of the value of the Appellant’s plea of guilty entered just prior to a retrial on a reduced charge. On 1 November 2010 the Appellant pleaded guilty to one count of maintaining a relationship of a sexual nature with a child under the age of 16 years,[1] with an attendant circumstance of aggravation, that he indecently dealt with the child.[2] The offending took place between 1 January 2007 and 8 March 2008.
The Appellant was sentenced to seven and a half years imprisonment commencing from 5 June 2010. A non parole period of five years and three months was set. The sentence was ordered to be served concurrently to the extent of six months with a sentence previously imposed on the Appellant.
Leave was granted by a Judge of this Court[3] to argue the first ground of appeal: “That the learned sentencing judge failed to give adequate recognition to the plea of guilty”. The Appellant sought a re-hearing of a refusal to grant leave to argue two further grounds: “That the learned sentencing judge did not give appropriate weight to the applicant’s prospects of rehabilitation” and “That in all the circumstances the sentence was manifestly excessive”.[4]
Material before the learned Sentencing Judge
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 JNB v The Queen

Details

AGLC: JNB v The Queen [2011] NTCCA 5
Case: [2011] NTCCA 5
Decision Date: 19/05/2011

CaseChat Overview and Summary

The case of JNB v The Queen concerned an appeal against a conviction for a sexual offence. The appellant, JNB, was convicted in the Supreme Court of the Northern Territory following a trial by jury. The appeal was heard by the Court of Criminal Appeal of the Northern Territory.

The primary legal issue before the Court of Criminal Appeal was whether the trial judge had erred in law by failing to direct the jury adequately on the issue of consent, specifically in relation to the appellant's belief that the complainant had consented. The court was required to consider the nature and scope of the defence of honest and reasonable belief in consent under the relevant provisions of the Northern Territory criminal law.

The Court of Criminal Appeal analysed the evidence presented at trial and the judge's summing up. It applied established principles regarding the direction on consent, noting that a jury must be instructed that if they find the accused honestly believed the complainant consented, even if that belief was unreasonable, they must acquit. However, the court also considered the requirement that such a belief must be reasonably held in the circumstances. The court found that the trial judge's directions, when viewed in their entirety, did not adequately convey the legal test for the defence of consent, particularly the distinction between an honest belief and an honest and reasonable belief.

The Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders