Lloyd v The Queen - [2013] NTCCA 11

Lloyd v The Queen [2013] NTCCA 11

PARTIES: LLOYD, Kane

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:CCA 17 of 2013 (21239373)
DELIVERED:  4 September 2013
HEARING DATE:  4 September 2013
JUDGMENT OF:  RILEY CJ, SOUTHWOOD and HILEY JJ
APPEALED FROM:  KELLY J
CATCHWORDS:

APPEAL AGAINST SENTENCE – Manifestly excessive – argument that sentence outside the range of sentences of comparable nature with similar antecedent – sentence of three years imprisonment to be suspended after nine months – appellant unable to demonstrate the sentencing discretion has miscarried – no tariff of penalties for crime of assault given the infinite variety of circumstances to offending and offender – significant weight to punishment, community protection and general deterrence appropriate – sentence by no means crushing – appellant did not show that sentence was clearly and obviously, and not just arguably excessive – no striking disparity with the customary standards of sentencing for assault - appeal dismissed.
Hedgecock v The Queen [2008] NTCCA 1
Morrow v The Queen [2013] NTCCA 7
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent:  W J Karczewski QC and D Jones
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou1310
Number of pages:  6

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lloyd v The Queen [2013] NTCCA 11

No. CCA 17 of 2013 (21239373)
BETWEEN:

KANE LLOYD

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY CJ, SOUTHWOOD and HILEY JJ
REASONS FOR JUDGMENT
Ex Tempore
(Delivered 4 September 2013)
THE COURT:
Introduction

On 20 March 2013 the appellant pleaded guilty to committing the crime of unlawfully cause serious harm to Paul Levaillant contrary to s 181 of the Criminal Code on 29 September 2012. He was sentenced to a term of imprisonment of three years to be suspended after he had served nine months in prison on condition that he place himself under the supervision of the Director of Community Corrections for a period of three years. The head sentence was reduced from four years to three years to reflect the appellant’s plea of guilty.
The appellant now appeals the sentence. He relies on two grounds of appeal. First, in the circumstances of this offending a starting point of four years was disproportionate to the offending. Second, the sentence was manifestly excessive.
The appellant’s principal submission is that the sentence imposed on him was outside the relevant range of sentences for offending of a comparable nature with similar antecedents. In this regard, the appellant was particularly concerned with the term of actual imprisonment of nine months. The first ground of appeal is really an argument in respect of the second ground of appeal. In support of the appellant’s principal submission Senior Counsel for the appellant relied on a table of 17 sentences where the victim suffered a broken jaw.
The facts
The admitted facts were as…

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 Lloyd v The Queen

Details

AGLC: Lloyd v The Queen [2013] NTCCA 11
Case: [2013] NTCCA 11
Decision Date: 4 September 2013

CaseChat Overview and Summary

The appeal before the Supreme Court of the Northern Territory, heard by Riley CJ, Southwood and Hiley JJ, concerned an appeal against sentence. The appellant argued that the sentence imposed for an assault, which included nine months imprisonment to be suspended after that period, was manifestly excessive and fell outside the appropriate range for comparable offences and offenders.

The central legal issue was whether the sentencing discretion had miscarried. The appellant contended that the nine-month period of actual imprisonment was too severe, relying on a table of sentences for similar assaults where victims suffered broken jaws. The court was required to consider whether this period was demonstrably outside the accepted sentencing range for such an offence, taking into account the appellant's antecedents and the objective seriousness of the assault.

The Court reasoned that there is no fixed tariff for assault offences due to the infinite variety of circumstances surrounding both the offending and the offender. While acknowledging the appellant's personal circumstances, including his role as a primary breadwinner and the impending birth of his second child, the court found that significant weight was appropriately given to punishment, community protection, and general deterrence. The sentence was not considered crushing, and the appellant failed to demonstrate that it was clearly and obviously, rather than merely arguably, excessive. The court found no striking disparity between the imposed sentence and customary sentencing standards for assault.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant’s principal submission is that the sentence imposed on him was outside the relevant range of sentences for offending of a comparable nature with similar antecedents. In this regard, the appellant was particularly concerned with the term of actual imprisonment of nine months. The first ground of appeal is really an argument in respect of the second ground of appeal. In support of the appellant’s principal submission Senior Counsel for the appellant relied on a table of 17 sentences where the victim suffered a broken jaw.The facts The admitted facts were as follows. At the time of the offending the appellant was 30 years of age. He had lived in the Northern Territory for seven years. He is a carpenter by trade and he worked as a self employed sub-contractor. The appellant is in a de facto relationship. At the time of sentencing he and his partner had one child who was five months old and they were expecting their second child. The appellant was the primary bread winner for his family and they had a mortgage to pay. He was a hard worker who was held in high regard by his workmates. The appellant has a criminal record which includes traffic offences. He committed an offence of recklessly causing injury in 2003 where no conviction was recorded and he was required to perform community service and undertake an anger management course. In 2010 he was convicted of common assault for which he was fined $1000. At the time of the offending the victim was 20 years of age. He worked as a tree lopper. On Saturday 29 September 2012 the victim and a friend attended the Howard Springs Tavern to watch the AFL Grand Final. The appellant was also at the tavern. The offender and the victim were unknown to each other. Both the victim and his friend decided to play a game of pool. The appellant was sitting on a bar stool watching the game. At one point the victim played a bad shot and he struck the pool table with the cue in frustration. The appellant yelled out to him, “Oi we all have to use those cues”. The victim replied, “Fair enough”. The appellant continued to remonstrate with the victim about his use of the cue. Eventually, the victim said, “It is not even your cue, so what do you care, so fuck off.” At this point the appellant got off his chair and moved towards the victim who thought he was going to the front door of the tavern. The appellant then punched the victim multiple times about the head and body. Other patrons and security personnel had to physically intervene to prevent the assault on the victim from continuing. After the assault the victim and his friend left the tavern. The victim went home and took some panadol and rested. The next day his jaw was still sore and his bite was misaligned. He went to the Royal Darwin Hospital where he was diagnosed as having suffered comminuted fractures of the right and left angle of the chin. He was asked to re-attend the hospital on 2 October 2012 when he was treated by way of internal fixation of the fractures with screws and plates.Objective seriousness

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.