Price v Guerin - [2021] NTSC 98

CITATION:Price v Guerin [2021] NTSC 98
PARTIES:PRICE, Jonathon
v

GUERIN, Malcolm

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 24 of 2021 (22120936)
DELIVERED:  14 December 2021
HEARING DATE:  14 December 2021
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Appellant:S Rumbewas
Respondent:  S Lapinski
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Kel2121
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Price v Guerin [2021] NTSC 98

No. LCA 24 of 2021 (22120936)

IN THE MATTER of an appeal under s 163 of the Local Court (Criminal Procedure) Act 1928 (NT)
BETWEEN:

JONATHON PRICE

Appellant

AND:

MALCOLM GUERIN

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 14 December 2021)

Jonathon Price is 38 years old. On 7 July 2021, he got drunk and forced his way into his cousin’s house by damaging a lock on the front gate and smashing a sliding door and screen. His cousin, Ms Hayward, is a 39 year old lady. She was not at home when Mr Price broke in and the house was empty. When he got inside, Mr Price damaged the refrigerator and microwave and threw food around the kitchen and lounge. Then he went to sleep in one of the bedrooms.
Ms Hayward reported to police that when she came home she found her house had been smashed up and an unknown man was asleep inside. Police arrived and found Mr Price asleep. When Mr Price woke up Ms Hayward realised it was her cousin. She asked him to leave and he did.
However, when Mr Price was out of sight of police, he walked back to the back of Ms Hayward’s house. He waited there for police to leave. Then he jumped the fence, went back inside the house and assaulted Ms Hayward. He punched and kicked her about ten times in the face and on the side of her body. Another cousin was there at the house and pushed Mr Price away.
Police heard screaming and went back to Ms Hayward’s house. They found her lying on the ground bleeding from her head. Mr Price was trying to jump the side fence. Police arrested him and took him to the Alice Springs Watch house.
As he was being escorted out of Ms Hayward’s yard by police, Mr Price tried to kick Ms Hayward while she was lying on the ground, but police pushed him away. At the Alice Springs Watch house, Mr Price spat in a police officer’s face.
On 8 July 2021, Jonathon Price pleaded guilty in the Local Court in Alice Springs to:
(a)unlawfully entering a dwelling house, the maximum penalty for which is imprisonment for 10 years (count 1);
(b)intentionally damaging property, the maximum penalty for which is imprisonment for 14 years (count 2);
(c)aggravated assault on Ms Hayward, the maximum penalty for which is imprisonment for…

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 Price v Guerin

Details

AGLC: Price v Guerin [2021] NTSC 98
Case: [2021] NTSC 98
Decision Date: 14 December 2021

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Jonathon Price appealed against a sentence imposed on him by the Local Court for unlawful entry and causing damage to property, aggravated assault, and assaulting a police officer. The appellant argued that the aggregate sentence of 18 months imprisonment for the first two counts was manifestly excessive, as well as the total effective sentence of 33 months imprisonment with a non-parole period of 17 months. The appellant's counsel clarified that the only complaint was with the sentence for counts 1 and 2. The appellant made three complaints about the sentence for counts 1 and 2, contending that it was not proportionate to the objective seriousness of the offences, that the Local Court erred by misapplying the totality principle when imposing an aggregate sentence, and that undue regard was given to the appellant's early plea. The court found that the sentencing judge did not mischaracterise the seriousness of the offending on count 1, and that the appellant's submissions about the objective seriousness of the offending on count 2 were rejected. The court also found that the sentencing judge did not misapply the totality principle in imposing an aggregate sentence, and that the sentence was not manifestly excessive. The court dismissed the appeal.

The court considered the principles governing manifest excess, which require the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive. The court noted that the sentencing judge assessed all of the offences as falling in the mid-range of seriousness for offences of this nature, and that the appellant had not shown any specific and identifiable error. The court also considered the maximum penalties prescribed by the legislature for the two offences (10 years and 14 years), as well as the appellant's age, prior criminal history and personal circumstances. The court found that an aggregate sentence of 18 months imprisonment for counts 1 and 2 could not be said to be excessive, let alone manifestly so. The court also found that the appellant's submission about undue regard to his early plea did not make sense, as there was not a sentence of 18 months for each of counts 1 and 2, but an aggregate sentence of 18 months for counts 1 and 2. The court emphasised that determining an appropriate sentence is a matter of instinctive synthesis, and that the appropriate sentence depends on the whole of the circumstances of the offending including the subjective circumstances of the offender.

Orders