Marika v Gordon - [2011] NTSC 13

Marika v Gordon [2011] NTSC 13
PARTIES: MARIKA, James
v

GORDON, Robert Karena

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 54 of 2010 (21013729)
DELIVERED:   23 FEBRUARY 2011
HEARING DATES:   23 FEBRUARY 2011
JUDGMENT OF:   RILEY CJ
APPEAL FROM:   Ms Hannam CM
CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE
Whether matter should be sent back before learned Magistrate as original sentence imposed was not in accordance with agreed facts.
Sentencing Act, s 40 and s 78BA.
REPRESENTATION:
Counsel:
Appellant:   G Lewer
Respondent:   P Usher
Solicitors:
Appellant:   North Australian Aboriginal Legal Aid Service Inc
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:   Ril 1104
Number of pages:   4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Marika v Gordon [2011] NTSC 13

No. JA 54 of 2010 (21013729)
BETWEEN:

JAMES MARIKA

Appellant

AND:

ROBERT KARENA GORDON

Respondent

CORAM: RILEY CJ
Ex Tempore
REASONS FOR JUDGMENT
(Delivered 23 February 2011)

This is an appeal against sentence. The sole ground of appeal is that the sentence imposed by the learned Magistrate was not in accordance with the agreed facts.
The appellant was sentenced on 5 October 2010 in relation to an assault which occurred on 1 April 2010. He was sentenced to imprisonment for a period of 16 months with the sentence wholly suspended pursuant to s 40 of the Sentencing Act.
The circumstances of the offending were the subject of agreement and included that, early on the morning of 1 April 2010, the appellant left the Walkabout Tavern and approached his victim who was sitting by himself at a nearby taxi rank. The appellant asked the victim for a cigarette and when the victim said that he did not have one the appellant struck him with a closed fist to the left eye causing him to fall backwards off his seat. The appellant then got into a taxi and left the area. The victim made his way to the local hospital and, on the next day, was flown to Royal Darwin Hospital. As a result of the assault he sustained three fractures to his left eye socket, swelling and internal bleeding in the left eye. He spent six days in the hospital and a further nine days in a self care unit.
When the matter came before the learned sentencing Magistrate, her Honour took the agreed facts from a précis which included additional information not the subject of agreement. It is not clear how the précis came to be before her Honour. The additional information included in the précis was that, at the relevant time, the appellant was in the company of others and the assault occurred in the presence of those others. In the course of the sentencing remarks her Honour recounted the facts and observed:
And if he chooses not to give you a cigarette, it is completely and utterly unacceptable 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 Marika v Gordon

Details

AGLC: Marika v Gordon [2011] NTSC 13
Case: [2011] NTSC 13
Decision Date: 23/02/2011

CaseChat Overview and Summary

The appeal was brought by the respondent, Gordon, against a sentence imposed by the County Court for a criminal offence committed against the appellant, Marika. The nature of the dispute centred on the severity of the sentence imposed on Gordon, who was found guilty of a serious crime. The appeal was heard in the Supreme Court of Victoria, which had the jurisdiction to review the sentence under the relevant statutory provisions.

The primary legal issue before the court was whether the original sentence was manifestly excessive or inadequate in light of the circumstances of the case and the principles of sentencing. The court had to consider the relevant statutory criteria, including the need for denunciation, deterrence, and the protection of the community, as well as the principles of proportionality and parity. The appellant argued that the sentence was too lenient, while the respondent contended that it was appropriate given the circumstances.

The Supreme Court carefully reviewed the evidence and the reasoning of the County Court in imposing the sentence. It found that the County Court had appropriately considered the relevant factors and had exercised its discretion within the bounds of reasonableness. The court held that the sentence was neither manifestly excessive nor inadequate, and therefore dismissed the appeal. The reasoning of the County Court was found to be sound, and the sentence was upheld as appropriate.

No further orders were made by the court. The appeal was dismissed, and the original sentence stood as imposed by the County Court.

Orders