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Lovegrove v The Queen

Lovegrove v The Queen

Case [2018] NTCCA 3 13 March 2018

Sentencing

Jurisdiction

Appeal

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Criminal Law

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CITATION:Lovegrove v The Queen [2018] NTCCA 3
PARTIES:LOVEGROVE, Stephen

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:CA 1 of 2018 (21728714)
DELIVERED:  13 March 2018
HEARING DATES:  9 March 2018
JUDGMENT OF:  Grant CJ, Blokland J and Mildren AJ
CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT
Whether s 63(5) of the Sentencing Act (NT) permits a court to backdate sentence to take into account time on bail in the circumstances described in s 5(2)(k) of the Sentencing Act – bail on electronic monitoring does not equate with “custody” within the meaning of s 63(5) – for s 63(5) to have application (a) the offender must have been in custody in relation to arrest for an offence (b) the offender is convicted of that offence and (c) the offender is sentenced to imprisonment in respect of that offence – the provisions of s 63(5) vest discretionary power to backdate sentence to date of arrest or any other date from that time – discretion not confined to the time spent in actual custody – discretion must be exercised judicially – court has discretion to backdate sentence to take into account the time spent on bail in the circumstances contemplated by s 5(2)(k) – no substantial miscarriage of justice – no lesser sentence warranted – appeal dismissed.

Bail Act (NT) s 27, s 27A
Criminal Code (NT) s 411
Sentencing Act (NT) s 5, s 63
Akoka v The Queen [2017] VSCA 214, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Alimudin v McCarthy; Nurdin v Bravos (2008) 23 NTLR 102, Brown v The Queen [2013] NSWCCA 44, Gilligan v The Queen [2007] NTCCA 8, Hughes v The Queen (2008) 185 A Crim R 155, Markarian v The Queen (2005) 228 CLR 357, Nottle v Trenerry (1993) 3 NTLR 68, Okwechime v Sindel (2009) 235 FLR 299, Pappin v The Queen [2005] NTCCA 2, R v Douglas (Unreported, New South Wales Court of Criminal Appeal, 4 March 1997), R v Eastway (Unreported, New South Wales Court of Criminal Appeal, 19 May 1992), R v Elphick (No 2) [2015] ACTSC 23, R v Eyles (No 3) [2017] ACTSC 1, The Queen v Zainudin and Ho [2005] NTSC 14, Wronski v Raue [2012] ACTSC 87, referred to.
REPRESENTATION:
Counsel:
Appellant:I Read SC and F Kepert
Respondent:  WJ Karczewski QC and C Ingles
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  23

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lovegrove v The Queen [2018] NTCCA 3

No. CA 1 of 2018 (21728714)
BETWEEN:

STEPHEN LOVEGROVE

Appellant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, BLOKLAND J and MILDREN AJ
REASONS FOR JUDGMENT
(Delivered…

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 Lovegrove v The Queen

Details

AGLC: Lovegrove v The Queen [2018] NTCCA 3
Case: [2018] NTCCA 3
Decision Date: 13 March 2018

CaseChat Overview and Summary

The appeal in *Lovegrove v The Queen* concerned the interpretation of section 63(5) of the *Sentencing Act* (NT) and its application to time spent on bail. The appellant, Lovegrove, sought to have his sentence backdated to include the period he was on bail with electronic monitoring. The case was heard by Grant CJ, Blokland J, and Mildren AJ.

The central legal issue before the court was whether section 63(5) of the *Sentencing Act* (NT) permitted a court to backdate a sentence to take into account time spent on bail, specifically in circumstances where the bail involved electronic monitoring as contemplated by section 5(2)(k) of the Act. This required the court to determine whether "custody" within the meaning of section 63(5) encompassed being on bail under electronic monitoring.

The court reasoned that for section 63(5) to apply, three conditions must be met: the offender must have been in custody in relation to an arrest for an offence, convicted of that offence, and sentenced to imprisonment for that offence. The court held that bail on electronic monitoring does not equate to "custody" for the purposes of section 63(5). However, the court clarified that the discretionary power to backdate a sentence under section 63(5) is not confined to the period of actual custody but can extend to any date from the time of arrest. Crucially, the court found that this discretion must be exercised judicially and that the court *does* have the discretion to backdate a sentence to take into account time spent on bail in the circumstances contemplated by section 5(2)(k). Despite this, the court concluded that no substantial miscarriage of justice had occurred and that no lesser sentence was warranted.

Consequently, the appeal was dismissed.

Orders