Mansray v Rigby

Case [2014] NTSC 62

Mansray v Rigby [2014] NTSC 62

PARTIES:MANSRAY, Mohammed

v

RIGBY, Kerry Anne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 5 of 2014 (21311682)

DELIVERED:  30 December 2014

HEARING DATES:  11 July 2014

JUDGMENT OF:  BARR J

APPEAL FROM:  COURT OF SUMMARY JURISDICTION

CATCHWORDS:

SENTENCING – Repealed mandatory sentencing provision for violent offences – section 12(c) Interpretation Act preserved offender's liability notwithstanding repeal of s 78BA Sentencing Act – liability incurred at time offence committed – liability included punishment under mandatory sentencing provision in place at time of offence – appeal dismissed.

Criminal Code 1983 (NT) s 14(2), s 188
Interpretation Act 1978 (NT) s 12(c)
Justices Act 1928 (NT) s 177(2)(b)
Sentencing Act 1995 (NT) s 78BA, s 78BA(2), s 78CA(3), s 78DC(2), s 78DG
Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 (NT) s 6, s 78EA
Supreme Court Act 1979 (NT) s 21(1)
Manning v Howlett [1971] Tas SR 85; The Queen v Scott Brancourt (2013) 280 FLR 356, applied.

Byrne v Garrisson [1965] VR 523; R v Olbrich (1999) 199 CLR 270; R v White (2006) 206 FLR 51; R v Storey [1998] 1 VR 359; Snedden v Minister for Justice (Cth) and Another (2013) 306 ALR 452; Undershaft (No 1) Limited v Commissioner of Taxation (2009) 175 FCR 150, referred to.

REPRESENTATION:

Counsel:

Appellant:R Goldflam

Respondent:  D Jones

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Bar1416

Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Mansray v Rigby [2014] NTSC 62

No. JA 5 of 2014 (21311682)

BETWEEN:

MOHAMMED MANSRAY

Appellant

AND:

KERRY ANN RIGBY

Respondent

CORAM:     BARR J

REASONS FOR JUDGMENT

(Delivered 30 December 2014)

  1. The appellant was charged on information laid on 9 April 2013 that, on 12 March 2013 at Darwin, he unlawfully assaulted NM, with the alleged circumstances of aggravation that NM suffered harm and that NM was unable to effectually defend himself due to the situation.

  2. When the matter came before the Court of Summary Jurisdiction on 4 September 2013, the appellant pleaded guilty to the offence of assault and to the first circumstance of aggravation (harm), but not guilty to the second circumstance of aggravation (victim unable to effectually defend himself).

  3. After the plea had been entered, the agreed facts were tendered and read to the court by the prosecutor, as follows:

    The defendant and the victim are known to each other. On Tuesday, 12 March 2013, about 3:35 PM, the defendant was at the Casuarina Shopping Complex outside Kmart when he approached the victim from behind, punching him to the back of the head, causing him to stumble forward. The defendant then attempted to coerce the victim into a fight, saying ‘come on fight me, you pussy’.

    The victim informed the defendant that he was not going to fight…

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Mansray v Rigby [2014] NTSC 62
Case
[2014] NTSC 62
Decision Date

CaseChat Overview and Summary

The case of Mansray v Rigby involved the appellant appealing against his sentencing, which had been determined under a repealed mandatory sentencing provision for violent offences. The appellant argued that his punishment was greater than what was authorised by the subsequently enacted provisions in place at the time of his sentencing. The Court of Appeal was tasked with determining whether the repealed sentencing provision had been applied correctly and whether the appellant's rights under the Criminal Code had been breached.

The central legal issue in this case was whether the appellant's punishment under the repealed sentencing provision was greater than what was authorised by the subsequently enacted provisions. The Court had to consider the provisions of the Interpretation Act and decide whether the appellant's liability for the offence was incurred at the time the offence was committed, thereby including the punishment under the mandatory sentencing provision in place at that time. The Court also needed to assess whether the appellant's appeal against the magistrate's decision to apply the repealed sentencing provision was valid.

The Court of Appeal dismissed the appellant's appeal, holding that he was not punished to a greater extent than authorised by the subsequently enacted provisions. The Court concluded that the appellant's liability for the offence, including the punishment under the mandatory sentencing provision, was incurred at the time of the offence. The Court found that the decision of Kelly J in Brancourt was correct and that the appellant had not established that the magistrate had erred in applying the repealed sentencing provision. The Court further commented that a non-custodial sentence, such as a good behaviour bond, would not have been appropriate given the nature and severity of the assault. The Court emphasised that the assault was a violent attack committed in a public place without provocation, and the appellant had not provided a satisfactory explanation for his actions. The Court ultimately dismissed the appeal, upholding the magistrate's sentencing decision.

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

The appellant was not punished by the application of the repealed s 78BA to a greater extent than was authorised by the subsequently enacted provisions of Part 3, Division 6A referred to in the previous paragraph, in force at the time of his sentencing. The contention based on s 14(2) Criminal Code is therefore not made out. Conclusion The appellant has not established that the decision of Kelly J in Brancourt was wrong. Contrary to the appellant’s submissions, I consider that the decision was correct. It follows that the appellant has not established that the magistrate erred in applying the repealed s 78BA Sentencing Act in the sentencing of the appellant. The appeal must therefore be dismissed.Additional matters I wish to add some further comments. This appeal seems to have been brought on the assumption that, if the appeal were successful, this Court would impose the non-custodial sentence which the magistrate indicated was appropriate, that is, a good behaviour bond. In my view, however, that was not an appropriate sentence. The offence was a violent assault committed in a public place. The young male victim was walking in the Casuarina Shopping Centre with two friends, one a female. The appellant approached from behind and punched the victim to the back of the head. There was no provocation and there was no warning. After that initial punch, and notwithstanding that the victim did not respond aggressively and in fact said that he did not want to fight, the appellant punched him to the forehead, just above the eye. Then, when the victim was on the ground, the appellant punched him to the nose with sufficient force to cause a deviated septum which required surgery. The nose bled profusely.[10] The victim subsequently suffered bouts of breathlessness at night and pain on sneezing,[11] as well as psychological sequelae. The learned magistrate described the assault as “the sort of impulsive behaviour that young men sometimes seem to get caught up in, where there is some physical aggression”. In my view, however, that description does not fully and accurately characterise the offending. Moreover, the appellant did not explain to the court below why he attacked the victim. He said in evidence that he knew the victim because they had worked at McDonald’s together, for about a year.[12] He admitted in giving evidence that he saw the victim, went towards him, that the victim was not expecting him and that he hit him from the back.[13] He admitted that he was angry at that point, but did not say why: Yeah coz, there’s a story that happened but I couldn’t say.[14] On 12 September 2013, Mr Read, senior counsel for the appellant, made submissions in mitigation. He referred to a disfigurement to the appellant’s eye resulting from a childhood accident, which had caused severely impaired vision and weeping from the eye. Senior counsel continued:But the physical aspect has not been the real issue. The real issue has been the attention he has received from the kids at school and on my instructions that was part of a sort of a lead up to what is this very unfortunate and serious assault – and it is a serious assault – that led up to him being involved in this.One of the things he has said in his instructions is that McDonalds and his employment was one of the places that he didn’t get that sort of attention in relation to his disfigurement.[15] ……. in my submission this incident would appear to be quite out of character and if there is any truth in the suggestion that it was something that built up out of being perhaps bullied at school by other people and then some remark in relation to this incident, then it does perhaps give an explanation, because there can’t be really an explanation for a young boy, just – who appears to be of such good character to react in such a savage way.HER HONOUR: This seems very random, unless there is something that sparked the confrontation.MR READ: Yes, but there had been some bad blood between he and the victim and it is not now the time to denigrate the victim, but there is something there that caused this to happen.[16]

Ratio Decidendi

Legal Principle Established

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