Orsto v Grotherr [2015] NTSC 18
PARTIES:ORSTO, Kristelle
v
GROTHERR, Christopher Paul
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 30 of 2014 (21341612)
DELIVERED: 31 MARCH 2015
HEARING DATES: 24 OCTOBER 2014
APPEAL FROM: COURT OF SUMMARY JURISDICTION
JUDGMENT OF: BLOKLAND J
CATCHWORDS:
CRIMINAL LAW – Sentencing – Mandatory minimum sentence – exceptional circumstances – Relevance of Magistrate’s comments – Proportionality – Instinctual synthesis approach to exceptional circumstances – Appeal allowed – Appellant re-sentenced
Criminal Code (NT) ss 188(1), 188(2)(a)
Domestic and Family Violence Act (NT)
Sentencing Act (NT) ss 5(1), 5(1)(a), 78, 78D, 78BA, 78DI, 78DI(1), 78DI(3)(b) and Division 6A Part 3
Sentencing Amendment (Mandatory Minimum Sentences) Act 2012 (NT)
The Queen v Duncan [2015] NTCCA 2, applied
Dhamarrandji v Curtis [2014] NTSC 39; Fergusson v Setter and Gokel (1997) 7 NTLR 118; Hasim and Ors v Attorney General (Cth) (2013) 218 FCR 25; House v The King (1936) 55 CLR 499; Karim v The Queen (2013) 83 NSWLR 268; Magaming v The Queen (2013) 87 ALJR 1060; Olsen v Sims (2010) 28 NTLR 116; Reid v Rowbottam (2005) 15 NTLR 1 and Rory v Sanderson [2012] NTSC 6, referred to
REPRESENTATION:
Counsel:
Appellant:J Hunyor
Respondent: D Dalrymple
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Blo1506
Number of pages: 29
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINOrsto v Grotherr [2015] NTSC 18
No. JA 30 of 2014 (21341612)
BETWEEN:
KRISTELLE ORSTO
Plaintiff
AND:
CHRISTOPHER PAUL GROTHERR
Defendant
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 31 March 2015)
Introduction
This is an appeal from a sentence imposed by a Magistrate in the Court of Summary Jurisdiction sitting at Wurrumiyanga, Bathurst Island.[1]
The appellant pleaded guilty to one count of unlawful assault with a circumstance of aggravation that the victim suffered harm.[2]
The maximum penalty is five years imprisonment. It is common ground that a mandatory minimum term of three months actual imprisonment applied, pursuant to s 78D of the Sentencing Act. The appellant was convicted and sentenced to the minimum three month term of imprisonment. The appellant served a short period of time in custody before being released on appeal bail by the Magistrate on the day she was sentenced.
The single ground of appeal is: “that the learned Magistrate was wrong in finding that the circumstances of the case were not exceptional for the purposes of s 78DI of the Sentencing Act (NT)”.
Material Before the Court of Summary Jurisdiction
(i) Facts of the Offending
On 20 June 2013, the appellant was served with a court confirmed domestic violence order that contained a condition not to harm the protected person/victim. The order was to be in force until 17 June 2014. On 20 September 2013, the day of the offending, the appellant was at…
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- AGLC
- Orsto v Grotherr [2015] NTSC 18
- Case
- [2015] NTSC 18
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered whether the Magistrate had erred in their application of the Sentencing Act and the common law principles of proportionality and exceptional circumstances. The appellant argued that the Magistrate had failed to properly consider the purpose of sentencing outlined in s 5(1)(a) of the Sentencing Act, which includes the principle of proportionality, when determining whether there were exceptional circumstances. The Court of Appeal noted that while the meaning of "exceptional circumstances" was ultimately a question of mixed fact and law, the decision of the sentencer was presumed to be correct unless an error could be demonstrated.
The Court of Appeal allowed the appeal and re-sentenced the appellant to a three-month imprisonment sentence suspended at the rising of the court. The Court noted that while the assault had taken place in the context of a heated discussion and in the presence of the parties' four-year-old daughter, there was a cycle of violence and the victim had wanted the appellant to have some counselling. The Court also noted that a sentencer not fettered by the mandatory minimum sentence would likely have imposed a fully suspended sentence. However, given the time that had already been served, the operational period of the suspended sentence was reduced to six months.
In conclusion, the Court of Appeal allowed the appeal and re-sentenced the appellant to a three-month imprisonment sentence suspended at the rising of the court, with an operational period of six months. The Court emphasised the importance of properly considering the purpose of sentencing and the principle of proportionality when determining whether there are exceptional circumstances that warrant a departure from a mandatory minimum sentence.
Orders
Orders of the court
The order will be that the appeal against sentence will be allowed. The sentence of three months imprisonment to actually be served will be quashed. Instead the appellant will be sentenced to three months imprisonment suspended at the rising of the court. I note time in custody was served at the time the original sentence was imposed. The time has already been served. Given the effluxion of time, the operational period will be reduced from what might ordinarily be expected. There will be an operational period of six months from today during which the appellant is not to commit another offence punishable by imprisonment and is to continue under the supervision of Correctional Services as previously set or she may be called upon to serve some or all of the three month term.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
His Honour noted the assault took place in the context of a heated discussion, the victim was struck from behind and it was in the presence, or near the vicinity of, their four year old daughter. There was a cycle of violence and the victim wanted the appellant to have some counselling. His Honour then stated: “I can indicate this for the record, that having regard to the factors that will be considered at common law and our inherent system, a court not fettered by s 78 of the Sentencing Act would deal with your matter by a fully suspended sentence. However, the provisions of the Act are clear and in circumstances it’s a matter which you will be convicted, you’ll be in prison for three months”. Consideration of the Arguments on Appeal Detailed and thought provoking submissions were made on appeal, primarily directed to the question of whether or not his Honour was in error in relation to the question of “exceptional circumstances”. More particularly, whether the “purposes for which sentences may be imposed” provided in s 5(1) of the Sentencing Act are relevant when a court is considering the “exceptional circumstances” exemption, especially the purpose provided in s 5(1)(a) of the Sentencing Act, “to punish the offender to an extent or in a way that is just in all the circumstances”. The ‘purpose’ or ‘guideline’ in s 5(1)(a) of the Sentencing Act is broadly understood to reflect or at least include the principle of proportionality as that concept is recognized as part of the common law of the sentencing.[5] Counsel for the respondent argued the assessment of factors to be taken into account in determining “exceptional circumstances” should be regarded as analogous to the taking into account of “considerations” by an administrative decision maker when required to exercise a discretion in a judicial manner. In support of this approach the Court was referred to Hasim and Ors v Attorney-General (Cth)[6] and the “organising principles” Greenwood J stated were relevant to the grounds challenging the exercise of a discretion, itself reliant on a finding of “exceptional circumstances” to justify its exercise. Greenwood J, for example set out the following items:6. The meaning however, to be attributed to the term “exceptional circumstances” is a question of law. 7. Similarly, where the ground relied upon is a failure to take into account a relevant consideration and the discretion is conferred in an unconfined way, a decision-maker is not bound to take a particular matter into account unless an implication can be drawn from the subject matter, scope and purpose of the conferring Act that such a consideration is to be taken into account.[7] In my view, the meaning attributed to the term “exceptional circumstances” within the context of the Sentencing Act is a question of mixed fact and law, dependent on the factors relied on, said to constitute “exceptional circumstances” that are consistent with the meaning attributed to that term discussed recently in The Queen v Duncan.[8] The sentencer must be satisfied “exceptional circumstances” are made out before the discretion can be exercised; however, if the question of whether the sentencer was correctly “satisfied” (or not) is subject to appeal, the question is to be dealt with within the usual confines of sentencing appeals. That includes the well-known principles as set out in House v The King.[9] The decision is presumed to be correct. It is not a question of whether another sentencer, including an appellate court, would take a different course. It must appear that some error has been made in exercising the direction.