Kuiper v Brennan - [2006] NTSC 54

Kuiper v Brennan [2006] NTSC 54
PARTIES:KUIPER, Mark Jason

v
BRENNAN, Michael David

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 10 of 2006 (20512508)
DELIVERED:  5 July 2006
HEARING DATES:  4 July 2006
JUDGMENT OF:  RILEY J
APPEAL FROM:  Court of Summary Jurisdiction sentence, Mr G. Cavanagh SM, 3 March 2006
REPRESENTATION:
Counsel:
Appellant:P Saraf
Respondent:  C Heske
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0610
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Kuiper v Brennan [2006] NTSC 54
No JA 10 of 2006 (20512508)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:
KUIPER, Mark Jason

Appellant
AND:
BRENNAN, Michael David

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 5 July 2006)

On 3 March 2006 the appellant pleaded guilty to the offence of unlawfully entering a building in Winnellie with intent to commit a crime therein, namely stealing, contrary to s 213 of the Criminal Code. The maximum penalty for the offence is imprisonment for seven years. He was sentenced to imprisonment for a period of six months suspended after he had served two months.

The offending occurred on 8 June 2002 when the appellant went to the business premises at Winnellie. He gained entry to the premises through the back doors and, when inside, searched through drawers looking for money. He then emptied the contents of a fire extinguisher within the office causing damage to the carpets and furniture. He avoided detection for some time but was subsequently identified through DNA comparisons. Police first spoke with him in May 2005.
On 25 May 2005 he was arrested and taken to the Darwin Police Station where he participated in an electronically recorded interview. In that interview he was asked why he had unlawfully entered the premises and he responded: “I was desperate”. He was asked why he caused criminal damage and he responded: “It was the wrong thing”. The value of the damage done was $12,000. The appellant was not alone at the time of the offending. Notwithstanding his admissions to police in the record of interview the appellant did not plead guilty until the morning of the trial. It had previously been indicated to the court that the admissions in the interview would be the subject of challenge.
Counsel appearing on behalf of the appellant acknowledged to the learned sentencing magistrate that his client had a history of offending by way of unlawful entry of premises. His last conviction for such offending was in 1997 when he received a significant period of imprisonment. He was sentenced to imprisonment for a period of two years with a non-parole period of 15 months. It was put to the court that on that…

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 Kuiper v Brennan

Details

AGLC: Kuiper v Brennan [2006] NTSC 54
Case: [2006] NTSC 54
Decision Date: 5 July 2006

CaseChat Overview and Summary

Kuiper was the appellant and Brennan was the respondent in this case that was heard in the Supreme Court of the Northern Territory. The appellant was appealing against his conviction and sentence imposed by the Magistrates Court. The central issue was whether the magistrate erred in his consideration of certain factors when sentencing the appellant. These factors included the appellant's criminal history, his rehabilitation prospects, and the potential hardship his imprisonment would cause his children.

The court considered whether the magistrate erred in his consideration of the appellant's criminal history and rehabilitation prospects. The court found that the magistrate's remarks about the appellant's criminal history and the need to deter further offending were appropriate. The appellant's argument that the magistrate placed too much emphasis on his criminal history and not enough on his rehabilitation was rejected. The court also found that the appellant's submissions about the hardship his imprisonment would cause his children were insufficient to establish that the hardship was exceptional.

The court further examined the magistrate's consideration of the plea of guilty. The court found that the magistrate appropriately took into account the appellant's guilty plea, which was a mitigating factor, but also balanced it against the seriousness of the offence and the need for deterrence. The court concluded that the magistrate did not err in his sentencing decision.

The court dismissed the appeal, affirming the conviction and sentence imposed by the magistrate. The court held that the magistrate appropriately balanced the various factors and did not err in his consideration of the appellant's criminal history, rehabilitation prospects, and the plea of guilty.

Orders

Orders of the court

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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

In my view his Honour did not fall into error in dealing with the delay in sentencing.Ground 7 – Rehabilitation and considerations of mercy It was submitted that his Honour fell into error by placing too much emphasis on the appellant’s criminal history and insufficient emphasis on his rehabilitation. In this regard reference was made to observations by his Honour that the appellant had been to gaol on more than one occasion for this kind of offending and that:“You’ve just got too many convictions of burglary and you should just realise this, you get caught again and again and again, you will be going to gaol again and again and again, and almost certainly for longer and longer.”Those remarks are unexceptional. Indeed it would be surprising if something along those lines was not said to the appellant at the time of sentencing. Again the appellant emphasised the fact that there had been no offending for offences of dishonesty for several years but ignored the reality that the appellant continued to offend throughout the same period. There was no merit in this submission.Ground 8 – Hardship The submissions made on behalf of the appellant informed the learned magistrate that the appellant was wishing to “focus” on his children and it was submitted that “if he is removed from his children, then there is no-one to care for them, well there is his in-laws who do provide support, but he very much wishes to be in their life …”. The submissions put to his Honour did not go beyond that point. He had been a carer for his three children during part of the period of the illness suffered by his wife. His parents-in-law were also involved. His Honour was not informed of the arrangements that had prevailed in relation to the children in the period leading up to sentence, nor what was to occur in the event of him being imprisoned. It was not submitted that his children would suffer any exceptional hardship in the circumstances. The hardship caused to an offender’s family is not normally a circumstance which the sentencer must take into account. However there are exceptions to this policy including where the particular circumstances of the family are such that the degree of hardship is exceptional and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of imprisonment. Such circumstances include where children may be deprived of parental care by virtue of imprisonment: R v Nagas (1995) 5 NTLR 45. In Mawson v Nayda (1995) 5 NTLR 56 Kearney J observed that for the exception to the usual rule to be established it is necessary for the defendant to produce cogent evidence to the sentencing court to establish that his imprisonment would impose exceptional hardship upon his family or that his imprisonment would effectively deprive the children of parental care. Although the imprisonment of the appellant will necessarily deprive the children of parental care from the appellant, the circumstances of the children were not addressed and there was no basis for his Honour to treat hardship to the family as exceptional. This was not a case where it was submitted that the imprisonment would result in the children being left to fend for themselves without supervision or support: Boyle (1987) 34 A Crim R 202 at 205. Other sources of care such as from the parents-in-law of the appellant or from those who cared for the older children whilst the appellant was interstate were not addressed.Ground 9 – Plea of guilty