McDonald v Emmett - [2023] NTSC 57

CITATION:McDonald v Emmett [2023] NTSC 57
PARTIES:McDONALD, Ike
v

EMMETT, Phillip

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 3 of 2023 (22302962)
DELIVERED:  30 June 2023
HEARING DATE:  30 June 2023
JUDGMENT OF:  Brownhill J
CATCHWORDS:

Bara v The Queen [2016] NTCCA 5; Bugmy v The Queen (2013) 249 CLR 571; Edmond v The Queen [2017] NTCCA 9; Forrest v The Queen [2017] NTCCA 5; Nicholson v Andreou [2018] NTSC 40; Phan v Western Australia [2014] WASCA 144, referred to.
Criminal Code (NT) ss 213, 277, 278
Local Court (Criminal Procedure) Act 1928 (NT) ss 163, 177(2)
Sentencing Act 1995 (NT) s 78B

REPRESENTATION:
Counsel:
Appellant:S Moody
Respondent:  P Williams
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Bro2311
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
McDonald v Emmett [2023] NTSC 57

No. LCA 3 of 2023 (22302962)
BETWEEN:

IKE McDONALD

Appellant

AND:

PHILLIP EMMETT

Respondent

CORAM: BROWNHILL J
EX TEMPORE REASONS FOR DECISION
(Delivered 30 June 2023)

The issue in this appeal is whether the sentence imposed by the Local Court of 12 months’ imprisonment suspended after three months for an offence of attempting to unlawfully enter a dwelling house with intent to steal was manifestly excessive.
On 27 January 2023, in the Local Court, the appellant pleaded guilty to the charge of attempting to unlawfully enter a building with the intent to commit the offence of stealing, with the circumstance of aggravation that the building was a dwelling house, contrary to ss 277 and 213 of the Criminal Code (NT).
The appellant was sentenced to imprisonment for 12 months, backdated by two days (to reflect time in custody after arrest) and suspended after three months, with an operational period of 12 months from the date of release. The only condition of the suspended sentence was that the appellant be of good behaviour for the operational period.
Pursuant to s 163 of the Local Court (Criminal Procedure) Act 1928 (NT), the appellant has appealed against the sentence on the ground that it is manifestly excessive.
The facts agreed on the plea were that the appellant was 20 years old at the time of the offending. At approximately 2.00pm on 25 January 2023, he went to a dwelling house in Alice Springs with the intent to commit an offence of stealing. He opened the back gate to the rear of the property and entered the fenced back yard. He walked to the rear kitchen window and looked inside. He approached the back door of the dwelling house and tried to open it by the handle. At 2.17pm, the resident of the house was notified by his CCTV security system that the appellant was at the property and he called Police. The appellant moved a chair from the pool…

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 McDonald v Emmett

Details

AGLC: McDonald v Emmett [2023] NTSC 57
Case: [2023] NTSC 57
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the appeal by Ike McDonald against his sentence for attempting to unlawfully enter a dwelling house with intent to steal was heard. The Local Court had sentenced McDonald to 12 months’ imprisonment, suspended after three months. McDonald argued that this sentence was manifestly excessive. The appeal hinged on whether the sentence imposed was disproportionate to the objective seriousness of the offence, considering the maximum penalty, the appellant's criminal history, and his personal circumstances.

The court examined the principles governing appeals against sentences on the grounds of manifest excess, which include the presumption that the sentence is correct unless error is shown, and that appellate intervention is only warranted if the sentence is unreasonable or plainly unjust. The court noted that McDonald's offending was at the very low end of the scale of seriousness for such offences, with no violence or theft occurring. However, McDonald's extensive criminal history, including multiple instances of unlawful entry, was considered. The court acknowledged the need for specific deterrence but also recognised the importance of rehabilitation, particularly given McDonald's young age and troubled background.

After considering these factors, the court concluded that the sentence of 12 months’ imprisonment, suspended after three months, was manifestly excessive. The court set aside the Local Court's sentence and re-sentenced McDonald to imprisonment for five months, suspended after three months, reflecting the very low level of objective seriousness of the offence, McDonald's youth, and his prospects for rehabilitation.

Orders