Marks v McLeay - [2023] NTSC 85

CITATION:Marks v McLeay [2023] NTSC 85
PARTIES:MARKS, Joseph

and
MCLEAY, Ross

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 15 of 2023 (22211722),
LCA 16 of 2023 (22215302) and
LCA 17 of 2023 (22219408)

DELIVERED:  27 September 2023
HEARING DATE:  15 August and 5 September 2023
JUDGMENT OF:  Barr J

CATCHWORDS:
CRIMINAL LAW – Sentencing – Youth Justice Act 2005 – Appeal against severity of sentence – Appellant re-offended while subject to good behaviour orders – Breach of order – Sentencing options in s 121(6) Youth Justice Act 2005 include varying order, alternatively revoking order/re-sentencing – Statutory alternatives – Youth Justice Court purportedly made orders varying and re-sentencing – Error of law – Proposed that appeal be allowed on ground not relied on by appellant – Proposed that consideration of breach of orders be remitted to Youth Justice Court for further hearing – Circumstances require parties to given opportunity to make further submissions before final orders made

Local Court (Criminal Procedure) Act 1928 (NT) s 165, s 172, s 177
Youth Justice Act 2005 (NT) s 83, s 121, s 144
R v McInerney (1986) 42 SASR 125; Carnese v The Queen [2009] NTCCA 8; Verity v SB [2011] NTSC 26, applied
REPRESENTATION:
Counsel:
Appellant:C Leonard
Respondent:  P Williams
Solicitors:
Appellants:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar2311
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Marks v McLeay [2023] NTSC 85

No. LCA 15 of 2023 (22211722),
No. LCA 16 of 2023 (22215302) and
No. LCA 17 of 2023 (22219408)
BETWEEN:

JOSEPH MARKS

Appellant

AND:

ROSS MCLEAY

Respondent

CORAM: BARR J
REASONS FOR DECISION
(Delivered 27 September 2023)

These are appeals against the severity of a number of sentences imposed for offences committed by the appellant as a 17 year old. On the first ground, the sentences are said to be manifestly excessive because convictions were recorded. On the second ground, it is contended that the learned sentencing judge acted beyond power as a judge of the Youth Justice Court dealing with an offender pursuant to s 121 Youth Justice Act 2005 for the breach of good behaviour orders.
On 7 July 2022, Judge Bamber sitting in the Youth Justice Court in Alice Springs imposed non-conviction good behaviour orders for the appellant’s offending on 17 April 2022 (file 22211722), on 20 May 2022 (file 22215302) and on 27 June 2022 (file 22219408).
The offences committed on 17 April 2022 were (1) contravening a domestic violence order (DVO), and (2) resisting a member of the police force in the execution of his duty. It may be noted that the appellant was born in January 2005 and so was 17 years and three months old at the time of offending.
According to the statement of facts provided to the Youth Justice Court, police officers observed…

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 Marks v McLeay

Details

AGLC: Marks v McLeay [2023] NTSC 85
Case: [2023] NTSC 85
Decision Date: 27 September 2023

CaseChat Overview and Summary

In Marks v McLeay, the appellant Joseph Marks appealed against sentences imposed for breaches of good behaviour orders, as well as the recording of convictions. The appeal was heard by Barr J in the Supreme Court of the Northern Territory. The key legal issues before the court were whether the sentences were manifestly excessive and whether the Youth Justice Court had acted beyond its powers when it recorded convictions and varied the good behaviour orders. The court found that the Youth Justice Court had erred in law by both recording convictions and varying the good behaviour orders, as these actions were mutually exclusive under the Youth Justice Act 2005. The court allowed the appeals on the ground that the Youth Justice Court had acted beyond its powers. The convictions were set aside, and the orders varying the good behaviour orders were also set aside. The breaches of order were remitted to the Youth Justice Court for further hearing, providing an opportunity for the court to reconsider the sentences and orders without the constraints of its earlier decisions.

Orders