Karui v The Queen - [2013] NTCCA 13

Karui v The Queen [2013] NTCCA 13

PARTIES: KARUI, Sylvester

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 16 of 2013 (21136852)
DELIVERED:  12 September 2013
HEARING DATES:  4 September 2013
JUDGMENT OF:  RILEY CJ, SOUTHWOOD and HILEY JJ
APPEALED FROM:  KELLY J
CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – Attempted sexual intercourse with 15-year-old-girl – Manifest excess – Appeal allowed – Appellant re-sentenced.
JUDGMENTS AND ORDERS – Power to amend sentence to correct arithmetical error – Exercise of power after leave to appeal has been granted – Inherent or implied jurisdiction of the Court – ‘Slip’ rule – Sentencing Act 1995 (NT) s 112.
Criminal Code 1983 (NT) s 192; Sentencing Act 1995 (NT) s 5, s 112
Burrell v The Queen (2008) 238 CLR 218; Hampton v The Queen [2008] NTCCA 5; House v The King (1936) 55 CLR 499; Jovanovic v The Queen (1999) 106 A Crim R 548; Liddy v The Queen [2005] NTCCA 4; Morrow v The Queen [2013] NTCCA 07; R v AN (No 2) (2006) 66 NSWLR 523; R v Carrion (2002) 128 A Crim R 29; R v Melville (1999) 9 NTLR 29; R v Bradbury (SCC 21106092, 21106091, 22 September 2011), referred to.
REPRESENTATION:
Counsel:
Appellant:R Wild QC with J Hunyor
Respondent:  D Morters
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    A
Judgment ID Number:  Hil1309
Number of pages:  13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Karui v The Queen [2013] NTCCA 13

No. CA 16 of 2013 (21136852)
BETWEEN:

SYLVESTER KARUI

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY CJ, SOUTHWOOD and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 12 September 2013)
THE COURT:
Introduction

On 19 June 2012, the appellant pleaded guilty to the offence of attempting to have sexual intercourse with a child aged 15 years without her consent and knowing about her lack of consent. The maximum penalty for the offence is imprisonment for 14 years. Investigations regarding the mental capacity of the appellant followed. On 26 March 2013, the appellant was sentenced to imprisonment for a period of eight years and 10 months with a non-parole period of six years. The sentence was backdated to 1 November 2011 on account of the fact that the appellant had been in custody since then.
The sentencing judge indicated a starting point of imprisonment for nine-and-a-half years and purported to reduce that figure by 15% to reflect the plea. It is not in dispute that her Honour made an arithmetical error in calculating the reduction and the sentence should have been to imprisonment for a period of eight years and one month. The matter came back before her Honour on 19 June 2013 for the purpose of correcting the error by amending the sentence. The appellant opposed…

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 Karui v The Queen

Details

AGLC: Karui v The Queen [2013] NTCCA 13
Case: [2013] NTCCA 13
Decision Date: 12 September 2013

CaseChat Overview and Summary

The appeal in *Karui v The Queen* was brought by the appellant against a sentence imposed by the Supreme Court of the Northern Territory. The appellant had been convicted of attempted sexual intercourse with a 15-year-old girl. The grounds of appeal included that the sentence was manifestly excessive.

The Court of Criminal Appeal was required to determine whether the original sentence was demonstrably too severe, constituting a manifest excess. Additionally, the Court considered its power to amend a sentence to correct an arithmetical error, particularly after leave to appeal had been granted, and whether such a power was derived from inherent or implied jurisdiction or the 'slip' rule under section 112 of the *Sentencing Act 1995* (NT).

The Court found that the original sentence was indeed a manifest excess and allowed the appeal. In re-sentencing, the Court applied principles of sentencing, considering the gravity of the offence and the need for deterrence and punishment, while also taking into account mitigating factors. The Court exercised its power to amend the sentence, effectively correcting what it perceived as an error in the original sentencing determination.

Consequently, the Court of Criminal Appeal allowed the appeal, set aside the original sentence of eight years and one month imprisonment with a non-parole period of six years, and imposed a new sentence of six years and four months imprisonment with a non-parole period of four years, backdated to 1 November 2011.

Orders

Orders of the court

Accordingly the orders of the Court are as follows:(a) The appeal is allowed.

(b) The sentence of eight years and one month imprisonment with a non-parole period of six years is set aside.

(c) The appellant is sentenced to six years and four months imprisonment with a non-parole period of four years, from 1 November 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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