Narjic v Hocking - [2001] NTSC 75

Narjic v Hocking & Anor [2001] NTSC 75
PARTIES:IGNATIUS NARJIC

v
ANDREW JAMES HOCKING and
PETER HALES

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION exercising Territory jurisdiction
FILE NO:JA 97/2000 (9918555)
JA 98/2000 (20003893)

DELIVERED:  22 August 2001, Darwin
HEARING DATES:  15 June 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL AGAINST SENTENCE
Appeal from Court of Summary Jurisdiction – notice of appeal filed out of time – dispense with requirements of s 172(2) of the Justices Act – appeal on grounds that magistrate failed to give sufficient weight to mitigating circumstances – leading to an excessive sentence – application of principal of totality – appeal dismissed
Justices Act 1928 (NT), s 165 and s 171(2)
Criminal Code 1983 (NT), s 210, s 213(4) and s 251(2)(c)
Nottle v Trenerry (1993) 89 NTR 7; Brown v Lynch (1982) 5 A Crim R 404; The Queen v Scanlon (1987) 89 FLR 77, cited
R v Raggett (1990) 50 A Crim R 41; R v Tait (1979) 46 FLR 386; Mill v The Queen (1988) 166 CLR 59, referred to.

REPRESENTATION:
Counsel:
Appellant:S Johns
Respondent:  P Tiffin
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200125
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Narjic v Hocking & Anor [2001] NTSC 75
JA 97/2000 (9918555), JA98/2000 (20003893)

BETWEEN:
IGNATIUS NARJIC

Appellant
AND:
ANDREW JAMES HOCKING
and
PETER HALES

Respondents

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 22 August 2001)

This is an appeal against sentence imposed by a stipendiary magistrate in Darwin on 3 November 2000. The appellant entered a plea of guilty and was sentenced as follows:
File 9918555 Count 1: Unlawfully damaging property on 14 August 1999 sentenced to 14 days imprisonment (aggregate with the sentences imposed on Counts 1, 2, 3, 5 and 7 on file 20003893) and 40 hours community service.
This offence involved unlawful damage to a motor vehicle the damage being to the car windscreen and roof. This damage was occasioned when the appellant threw a rock at the motor vehicle, a Magna sedan parked outside 26 Snadden Street. He was in an agitated condition following an argument with his wife. The amount to repair the damage was $940.97. There were no orders made for restitution.
Further the appellant entered a plea of guilty to each of the following charges on file 20003893:
Count 1:
Between 27 December 1999 and 29 December 1999 at Nguiu in the Northern Territory of Australia
1. unlawfully entered a building, namely, MCS Girls School Nguiu with intent to commit therein a crime, namely, stealing
Sentence: 14 days imprisonment (aggregate with the sentence imposed on Count 1 on file 9918555 and Counts 2, 3, 5 and 7 on file 20003893) and 120 hours community service.
Count 2:
Between 27 December 1999 and 29 December 1999, at Nguiu…

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 Narjic v Hocking

Details

AGLC: Narjic v Hocking [2001] NTSC 75
Case: [2001] NTSC 75
Decision Date: 22 August 2001, Darwin

CaseChat Overview and Summary

Ignatius Narjic appealed against the sentence imposed on him by the magistrate in Darwin. The appellant pleaded guilty to various charges, including unlawful damage to property, unlawful entry with intent to commit a crime, and assault. The magistrate sentenced the appellant to imprisonment and community service. The appeal was filed outside the one-month time limit stipulated under s 171(2) of the Justices Act. The appellant applied for the court to dispense with the requirement to lodge a notice of appeal within one month of the date of conviction. The court accepted that the appellant had done whatever was reasonably practicable to comply with the provisions of s 171(2) of the Act and made an order dispensing with the requirements of s 171(2) of the Justices Act.

The appellant argued that the magistrate erred in failing to give sufficient weight to the mitigating circumstances of the appellant leading to an excessive sentence on certain charges and erred in the application of the totality principle. The court found that the magistrate had given consideration to the appellant's youth, plea of guilty, prospects of rehabilitation, and lack of recent criminal antecedents. The court also found that the magistrate had applied the totality principle correctly by balancing the seriousness of the offending with the personal circumstances of the appellant. The court dismissed the appeal.

Orders