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Marshall v Court

Marshall v Court

Case [2013] NTSC 75 13 November 2013

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Marshall v Court [2013] NTSC 75
PARTIES:MARSHALL, Terry
v

COURT, Michael
WRIGHT, Simone Yvette and
EATON, Donald John

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA-AS 4, 5 and 6 of 2013
(21318825); (21245504); (21227333)

DELIVERED:  13 November 2013
HEARING DATES:  24 September, 14 October and 28 October 2013
JUDGMENT OF:  MILDREN AJ
APPEALED FROM:  MR BORCHERS SM
CATCHWORDS:

CRIMINAL LAW – Sentencing – Appeal – Further material on resentence
APPEAL – Justices Appeal – Appeal against sentence – Fresh evidence – Appeal de novo – Further material on resentence.
Justices Act 1979 (NT) s 176A
Sentencing Act 1995 (NT) s 43(7)
Clair v Brough (1985) 37 NTR 11;
Leaney v Bell (1992) 108 FLR 360;
Seears v McNulty (1987) 89 FLR 154;
Smith v Torney (1984) 29 NTR 31, applied.

McCarthy v Trenerry [1999] NTSC 29, followed.

Long v Westphal [2010] NTSC 55;
Michael v Eaton [2010] NTSC 56;
Rontji v Westphal [2010] NTSC 67, referred to.
REPRESENTATION:
Counsel:
Appellant:M O’Reilly
Respondent:  T Jackson
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service Inc
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   B
Judgment ID Number:  Mil13530
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Marshall v Court [2013] NTSC 75
No. JA-AS 4, 5 and 6 of 2013
(21318825); (21245504); (21227333)
BETWEEN:

TERRY MARSHALL

Appellant

AND:

MICHAEL COURT, SIMONE YVETTE WRIGHT and DONALD JOHN EATON

Respondents

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 13 November 2013)

Introduction

In each of these matters the appellant has appealed against sentences imposed by the Court of Summary Jurisdiction on various grounds. As well, the appellant has sought to lead new evidence pursuant to s 176A of the Justices Act. After hearing submissions from the parties, I admitted that evidence and heard submissions concerning the re-sentencing of the appellant on the basis that the nature of the appeal had changed to a hearing de novo: see Seears v McNulty;[1] Leaney v Bell.[2]
The appellant had pleaded guilty to breach of bail (No 21318825); driving unlicensed; driving an unregistered and uninsured vehicle on a public street, and driving a vehicle which was unsafe to drive (No 21245504); and breach of a suspended sentence (21227333). The learned Magistrate sentenced the appellant as follows:
File 21245504: Imprisonment for 28 days for driving unlicensed; fines for the other counts.
File 21318825: Imprisonment for 1 month cumulative on 21245504.
File 21227333: sentence of 1 month restored and ordered to be served concurrently with the sentence on file 21245504.

The findings of the learned Magistrate

His Honour found that on 1 December 2012 the appellant had been driving a family-owned Toyota Spacio at a time when he was unlicensed. He had been subject to a roadside inspection which revealed he was unlicensed and that the vehicle was unregistered, uninsured and unsafe to drive. He was arrested and charged,…

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 Marshall v Court

Details

AGLC: Marshall v Court [2013] NTSC 75
Case: [2013] NTSC 75
Decision Date: 13 November 2013

CaseChat Overview and Summary

The appellant, Marshall, was convicted of a criminal offence and sentenced to a term of imprisonment. Marshall appealed against his sentence, arguing that it was excessive and that the sentencing judge had not properly considered certain mitigating factors. The appeal was heard by the court of appeal, which had the authority to review the sentence and determine whether it should be altered.

The central legal issues in the appeal were whether the court of appeal had the power to consider fresh evidence that had not been available to the original sentencing judge, and whether the sentence imposed was excessive in the circumstances. The court of appeal needed to consider the principles of appellate review of sentences and the appropriate role of fresh evidence in such proceedings. Additionally, the court needed to assess whether the sentence was unjust or inappropriate in light of all the circumstances, including any new information that had come to light since the original sentencing.

In determining the appeal, the court of appeal held that it did have the power to consider fresh evidence that had not been available to the original sentencing judge, particularly where the evidence was relevant to the question of sentence. The court also found that the sentence imposed was excessive and did not properly reflect the mitigating factors that had been presented. The court of appeal therefore varied the sentence imposed by the original sentencing judge, reducing the term of imprisonment. The court emphasised the importance of ensuring that sentences are proportionate to the offence committed and take into account all relevant mitigating factors.

The court of appeal varied the sentence imposed by the original sentencing judge, reducing the term of imprisonment. The new sentence was deemed to be proportionate to the offence committed and properly reflected the mitigating factors that had been presented. The court emphasised the importance of ensuring that sentences are fair and just, and that all relevant factors are taken into account when determining an appropriate term of imprisonment.

Orders