Meneri v Court - [2017] NTSC 89

CITATIONMeneri v Court [2017] NTSC 89
PARTIES:MENERI, Joshua

v
COURT, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 17 of 2017 (21637013)
DELIVERED ON:  12 December 2017
DELIVERED AT:  ALICE SPRINGS
HEARING DATE:  7 December 2017
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  THE LOCAL COURT EXERCISING ITS CRIMINAL JURISDICTION
CATCHWORDS:

CRIMINAL LAW – SENTENCING - SUSPENDED SENTENCE – FAILURE TO SIGN ORDER – APPLICATION FOR BREACH OF SUSPENDED SENTENCE - APPEAL AGAINST FINDING OF BREACH PROVEN – Suspended sentence with conditions – whether s 102A of the Sentencing Act (NT) is a condition precedent to the order having operational effect – s 101 and s 102 complied with – appeal dismissed

Sentencing Act (NT) s 40(1), s 40(2), s 40 (3), s 40(6), s 41, s 42(1), s 42(1)(b), s 42(2), s 43, s 43(5)(b) to (f), s 43(7), s 100, s 101, s 102, s 102A, s 102A(2), s 102A(3), s 103
Dinsdale v The Queen [2000] HCA 54; R v Ford (2008) 100 SASR 94; 181 A Crim R 398; Griffiths v The Queen (1977) 137 CLR 293; R v Palliaer (1983) 35 SASR 569; R v Simmons [1998] 2 VR 14; R v Warfield (1994) 34 NSWLR 200, referred to
REPRESENTATION:
Counsel:
Appellant:G Dooley
Respondent:  S Robson
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou1707
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Meneri v Court [2017] NTSC 89

No. LCA 17 of 2017 (21637013)
BETWEEN:

JOSHUA MENERI

Appellant

AND:

MICHAEL COURT

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 12 December 2017)
Background

On 29 August 2016 his Honour Borchers J, presiding in the Local Court at Alice Springs, convicted the appellant of the crime of aggravated assault and sentenced him to a term of 21 days’ imprisonment. The sentence was suspended on the rising of the court on conditions. Under s 40(6) of the Sentencing Act (NT), an operational period of 12 months was fixed.
Contrary to s 102A(2) of the Sentencing Act, the appellant left the precincts of the court without signing the notice of suspended sentence of imprisonment. He did so despite being told to remain in court until he had signed the notice. Under s 102A(3) of the Act, upon leaving the court the appellant became liable to be arrested without warrant.
Prior to sentencing the appellant, the sentencing Judge received a supervision assessment under s 103 of the Sentencing Act. The assessment report is dated 22 August 2016. The author of the report, Ms Shantel Klarenbeek, stated: “The general conditions associated with a supervision order were clearly explained to [the appellant], as well as the consequences of failing to abide by them. The offender agreed he understood and was prepared to comply.”
It is the invariable practice of…

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 Meneri v Court

Details

AGLC: Meneri v Court [2017] NTSC 89
Case: [2017] NTSC 89
Decision Date: 12 December 2017

CaseChat Overview and Summary

In the case of Meneri v Court, the appellant, Meneri, contested the validity of a suspended sentence imposed by the Local Court. The dispute reached the court after Meneri failed to sign the order, leading to an application for breach of the suspended sentence. The primary issue before the court was whether the failure to sign the order rendered the suspended sentence invalid, thereby affecting the subsequent application for breach. The court had to determine if section 102A of the Sentencing Act (NT) was a condition precedent to the order having operational effect and if the Local Court correctly handled the breach application.

The court examined the statutory framework provided by sections 101 and 102 of the Sentencing Act, which outline the procedures for imposing a suspended sentence. It found that even though Meneri did not sign the order, the court had the authority to bring him before it under section 42(1)(b). The court assessed whether Meneri's failure to sign indicated a refusal to comply with the conditions attached to the sentence. The court concluded that the failure to sign did not necessarily mean Meneri was unwilling to comply, and the court could still require him to sign the order before release. Additionally, the court had the discretion to address any concerns Meneri had about the conditions.

The court ruled that the terms of sections 101 and 102 of the Sentencing Act were correctly applied, and the orders made by the Local Court were valid. The court dismissed the appeal and the application for an extension of time to appeal. It found that the Local Court's decision to hear and determine the breach application was justified, and there was no basis to dismiss it. The orders made by the Local Court on 29 August 2016 were upheld as valid, and the subsequent order by his Honour Birch J on 5 December 2016 was also deemed valid.

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 fact that an offender is amenable to arrest without a warrant if an offender does not sign the order, does not require a different construction of s 102A of the Sentencing Act. If an offender is arrested under s 102A, the offender is to be brought before the court and dealt with under s 42(1)(b) of the Sentencing Act. Once the offender is before the court, the court will determine if the offender’s failure to sign the order means the offender is no longer willing to comply with the conditions attached to the order suspending the sentence of imprisonment. If so, the sentencing court is able to vary or cancel the sentence or deal with the offender as if the court had just convicted the offender. If not, the court can require the offender to sign the order before being released from the court. The court may also deal with any concerns the offender has about the conditions. The operation of s 42 of the Act is also predicated on a valid order being made in the first instance.Conclusion The application for an extension of time to appeal and, to the extent necessary, the appeal are dismissed. The terms of s 101 and s 102 of the Sentencing Act were complied with in this case. The orders made by the Local Court on 29 August 2016 are valid and were valid and took effect at the time they were pronounced. It follows that the order made by his Honour Birch J on 5 December 2016 is also valid. There was no basis for the Local Court to dismiss the application for breach which was heard and determined on 19 June 2017.

Ratio Decidendi

Legal Principle Established

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