Leigh v Heath - [2016] NTSC 50

Leigh v Heath [2016] NTSC 50
PARTIES:LEIGH, Sean

v
HEATH, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 5 of 2016 (21610542)
DELIVERED:  30 September 2016
HEARING DATES:  14 September 2016
JUDGMENT OF:  HILEY J
APPEAL FROM:  LOCAL COURT
CATCHWORDS:

CRIMINAL LAW- Firearms – mandatory disqualification – additional to court ordered disqualification - Firearms Act1997 (NT) s 10(2A)(a), s 93A(2).
APPEALS – Sentencing – error - failure to take into account period of mandatory disqualification
Burrarrwanga v Rigby [2009] NTSC 57; 24 NTLR 234; Director of Public Prosecutions (Vic) v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557; R v Tait (1979) 46 FLR 386; Trajkovski v The Queen [2011] VSCA 170; (2011) 32 VR 587, referred to
Firearms Act1997 (NT) s 10(2A)(a)(i), (ii) & (b), s 40(1), s 43(1)(b) s 46, s 46(1), s 93A(1) & (2).
REPRESENTATION:
Counsel:
Appellant:D McConnel
Respondent:  CW Roberts
Solicitors:
Appellant:HWL Ebsworth Lawyers
Respondent:
Judgment category classification:    B
Judgment ID Number:  Hil1609
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Leigh v Heath [2016] NTSC 50

No. LCA 5 of 2016 (21610542)
BETWEEN:

SEAN LEIGH

Appellant

AND:

ANDREW HEATH

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 30 September 2016)
Introduction

The appellant pleaded guilty to two firearms offences under s 46 of the Firearms Act1997 (NT) (Firearms Act). The offending involved his failure to properly secure his rifle and a box of ammunition in his motor-vehicle. He had left his bolt action Winchester .308 calibre rifle in a gun case on the dashboard of his vehicle, and a box of 20 rounds compatible with that rifle in the unlocked glove-box of the vehicle. The vehicle was locked and was parked inside a fenced yard. During the night an intruder climbed the fence, broke into the car by smashing a window and removed the rifle and ammunition.
He was convicted and fined $2000 with a victim’s levy of $300. He was also disqualified from holding or obtaining a licence, registration or permit under the Firearms Act for 12 months. He has appealed against the sentence.
Grounds of Appeal
The notice of appeal contains the following grounds:
(a)that the sentence imposed was manifestly excessive in all of the circumstances of the case
(b)alternatively, that his Honour erred in:
(i) taking into account irrelevant considerations;
(ii) failing to take into account relevant considerations; and
(iii) having regard to facts not admitted or proven beyond reasonable doubt;
with the result that the appellant was sentenced on the wrong basis.
Although the sentence expressed by his Honour included convictions, the aggregate fine of $2000 plus victims levy of $300 and the 12 months disqualification, the appellant contended that ss 10(2A) and 93A(2) of the Firearms Act operated to impose an additional disqualification of two years. That was the main basis…

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 Leigh v Heath

Details

AGLC: Leigh v Heath [2016] NTSC 50
Case: [2016] NTSC 50
Decision Date: 30 September 2016

CaseChat Overview and Summary

In the case of Leigh v Heath, the appellant challenged the sentence imposed by the sentencing judge in the Court of Criminal Appeal. The appellant was found guilty of possessing a firearm and was subject to a court-ordered disqualification period of three years. The sentencing judge imposed an additional mandatory disqualification period of three years, pursuant to section 10(2A)(a) and section 93A(2) of the Firearms Act 1997 (NT). The appellant contended that the additional period of mandatory disqualification should not be added to the court-ordered disqualification as it was effectively a double punishment for the same offence.

The court was required to determine whether the additional period of mandatory disqualification imposed on the appellant was lawful and whether the sentencing judge erred by not taking into account the period of mandatory disqualification when imposing the court-ordered disqualification. The court examined the relevant provisions of the Firearms Act 1997 (NT) and considered the legislative intent behind the mandatory disqualification provisions. The court also considered the principle of double jeopardy and whether it applied in this situation.

The court found that the mandatory disqualification provisions of the Firearms Act 1997 (NT) were intended to operate in addition to any court-ordered disqualification. The court held that the mandatory disqualification was not a form of punishment, but rather a regulatory measure aimed at preventing the appellant from possessing a firearm in the future. The court further held that the sentencing judge did not err in imposing the additional period of mandatory disqualification as it was not a form of punishment but a regulatory measure. The court rejected the appellant's argument that the additional period of mandatory disqualification amounted to double punishment for the same offence.

The Court of Criminal Appeal dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The appellant was subject to a total disqualification period of six years, comprising of three years of court-ordered disqualification and three years of mandatory disqualification.

Orders