Qadir v Rigby

Case [2012] NTSC 90

Qadir v Rigby [2012] NTSC 90

PARTIES:   QADIR, Nasar

v

RIGBY, Kerry Leanne

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:   JA 3 of 2012 (21042598)

DELIVERED:   15 November 2012

HEARING DATES:   27 June 2012

JUDGMENT OF:   BARR J

APPEAL FROM:   TRIGG SM

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST RECORDING OF CONVICTION AND SENTENCE – Criminal Code (NT) s 294(2) – appellant pleaded guilty to single count of assisting his brother to enable him to escape prosecution for the crime of hit and run – magistrate concluded appellant made no attempt to alert police or ambulance to treat accident victim – conclusion not relevant to the charge – sentencing discretion affected by extraneous or irrelevant matter – appeal allowed in part – re-sentencing – having regard to appellant’s youth, lack of prior offending and rehabilitation, sentence of imprisonment inappropriate – sentence of imprisonment quashed and conviction bond substituted

CRIMINAL LAW – APPEAL AGAINST RECORDING OF CONVICTION AND SENTENCE – 19 year old offender with no prior criminal history – whether insufficient weight placed on youth and prospects of rehabilitation – whether insufficient weight placed on co-operation with police and guilty plea – youth, lack of prior convictions, co-operation and guilty plea acknowledged by magistrate – general deterrence an important factor – error not identified on grounds based on R v Mills (1998) 4 VR 235

CRIMINAL LAW – APPEAL AGAINST CONVICTION AND SENTENCE – Whether magistrate erred in characterising seriousness of the offence charged –whether appellant wrongly sentenced for conspiracy to pervert the course of justice – principle in R v De Simoni (1981) 147 CLR – magistrate did not take into account matters which would have warranted conviction for more serious offence – no mischaracterisation – no sentencing error established on this ground

Criminal Code (NT) s 13(1), s 174FA, s 286, s 294(2)
Justices Act (NT) s 177
Sentencing Act (NT) s 5, s 7(a), s 8, s 11(a), s 13, s 40
Criminal Records (Spent Convictions) Act (NT) s 11

Cranssen v R (1936) CLR 55 CLR 509; Dinsdale v R (2000) 202 CLR 321; House v R (1936) 55 CLR 499; Liddy v R [2005] NTCCA 8; Lo Castro v R [2011] NTCCA 1; Midjumbani v Moore [2009] NTSC 27, followed.

R v Bernath [1997] 1 VR 271, applied.

Carnese v The Queen [2009] NTCCA 8; DD v Cahill [2009] NTSC 62; Hales v Adams [2005] NTSC 86; Kelly v The Queen (2000) 10 NTLR 39; Nona v The Queen [2012] NTCCA 3; R v De Simoni (1981) 147 CLR 383; R v McInerney (1986) 42 SASR 125; R v Mills (1998) 4 VR 235; R v Rogerson (1992) 174 CLR 268; Yeomans v The Queen [2011] VSCA 277, considered.

REPRESENTATION:

Counsel:

Appellant:   K Roussos

Respondent:   D Jones

Solicitors:

Appellant:   Northern Territory Legal Aid Commission

Respondent:…

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Qadir v Rigby [2012] NTSC 90
Case
[2012] NTSC 90
Decision Date

CaseChat Overview and Summary

In the case of Qadir v Rigby, the appellant was convicted of assisting his brother to evade prosecution for a hit and run offence. The appellant pleaded guilty and the matter was sentenced by a magistrate. The appellant appealed the conviction and sentence, arguing that the magistrate had erred in various respects. The appeal was heard by the Supreme Court of the Northern Territory.

The legal issues before the court were whether the magistrate had erred in various respects in sentencing the appellant. The appellant argued that the magistrate had failed to give sufficient weight to the appellant's youth, lack of prior criminal history, and co-operation with police. The appellant also argued that the magistrate had erred in making findings which were unsupported by the evidence.

The court found that the appellant had not established error in the weight afforded by the magistrate to the appellant's guilty plea or co-operation with police. The court found that the magistrate had been justified in making findings that the appellant was aware of the potentially serious injuries suffered by the victim of his brother's hit and run accident, and that the appellant made no attempt to alert police or ambulance to the accident or otherwise ensure that the victim was being treated. The court found that the appellant's arguments on appeal were not supported by the evidence.

The court quashed the sentence of imprisonment and substituted a conviction bond in its place. The court noted that the appellant's youth, lack of prior offending and rehabilitation were relevant factors in determining the appropriate sentence. The court found that a sentence of imprisonment was inappropriate in the circumstances.

The court noted that the appellant's guilty plea and co-operation with police were relevant factors in determining the appropriate sentence. However, the court found that the appellant's admissions to police and his guilty plea were of little value, given that he was apprehended at the scene. The court found that the magistrate had not erred in sentencing the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I refer once more to my comment in par [16] above as to the need for caution where it is argued on appeal that a sentencing Judge failed to give sufficient weight to particular factors. The appellant has not established error in the weight afforded by the magistrate to the appellant’s guilty plea or co-operation with police. This ground of appeal must therefore fail. (d) Ground 4: the learned magistrate erred in making findings which were unsupported by the evidence in sentencing the appellant in accordance with those findings. The appellant argues that the magistrate fell into error by relying on the following findings, which it says were unsupported by the evidence: 1.That the appellant was aware that the victim of his brother’s hit and run accident could have been seriously injured or killed; and 2.The appellant made no attempt to alert police or ambulance to the accident or otherwise ensure that the victim was being treated. It is correct that the magistrate attributed to the appellant awareness of the potentially serious injuries suffered by the victim of his brother Mohammed’s hit and run accident. In my view, his Honour was justified in so doing. The appellant was aware of the damage to Mohammed’s vehicle, which included damage to the bonnet and a smashed windscreen. Moreover, as mentioned in par [8] above, Mohammed told the appellant what had happened when he returned home after the accident. This was an agreed fact. The magistrate was entitled to assume that the appellant thus became aware of the significant possibility of serious injury to the victim. Relevant to this ground, the magistrate’s sentencing remarks were as follows: It clearly was an impact of considerable force and it would have been obvious to anybody that the person hit was likely to have received possibly very serious injuries if not possibly fatal. The brother apparently went up the road for a short distance, then stopped, turned around and then drove off, back home. The brother did not seek to render any assistance to the person he had hit, did not ring 000, did not call for any ambulance, did not alert police; he simply drove home.Thereafter, the brother’s concern appears to have been for his own self rather than for the person he struck and he told the defendant about what had happened. The defendant then has joined in the brother’s concern and has then agreed to assist the brother to effectively alter the vehicle to try and hide the crime. There is no suggestion that the defendant took any steps to ring police or an ambulance or took any steps to ascertain whether the person hit was being attended to or treated by anybody else. The defendant’s concerns, as I say, were for his brother and to help his brother in the circumstances. Contrary to the appellant’s submissions, I find it was open to the learned magistrate to make finding 1 in par [34]. Moreover, the finding was relevant to the appellant’s sentencing. The appellant by his plea of guilty admitted that he knew at all relevant times that his brother Mohammed had committed the crime of hit and run. The known circumstances of the principal offence determine or are relevant to determining the seriousness of the offence constituted by the attempted cover-up. Knowledge of the seriousness of the principal offence is therefore relevant to the sentencing of the accessory after the fact.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Since there is no identified sentencing error in relation to the weight afforded by the magistrate to the appellant’s youth and/or prospects of rehabilitation, grounds 1 and 2 of the appeal must fail. (c) Ground 3: the learned magistrate erred in that he accorded insufficient weight to both the appellant’s cooperation with police and his guilty plea. The appellant does not complain that the magistrate failed to take into account the appellant’s guilty plea and co-operation with police, but contends that he placed insufficient weight on both. In support of this ground of appeal, the appellant relies on the following passage in the learned magistrate’s reasons: But once apprehended, the defendant did the right thing. He then went to the police station, he made full admissions in relation to his involvement, so he did not attempt to lie, which is good. It would have been a bit hard to lie because he was caught red-handed in relation to the windscreen, but in relation to the earlier activities with the numberplate, taxi light and bonnet, he hadn’t been caught in relation to that, so his subsequent honesty to police in relation to that is a good sign that maybe this is a one-off, but as I say, only time will tell.”[16] It can be seen that the magistrate was giving the appellant credit for his co-operation with police, particularly for having made full admissions in relation to his involvement in matters for which police did not have direct evidence (“the earlier activities”). On the hearing of the appeal, counsel for the appellant argued that the learned magistrate erred in treating the case against the defendant as strong; Ms Roussos argued that the appellant’s admissions to police, both at his home and in his formal interview, were significant and that he was not ‘caught red-handed’ in relation to any of the offending. I accept that the appellant’s admissions were helpful insofar as the police did not have to embark on DNA testing or fingerprinting to prove who had made alterations to the Tarago taxi van. The magistrate acknowledged that much. However, I do not accept that the police did not already know that the appellant had cut out part of the damaged windscreen. It was open to the magistrate to infer from the wording of the agreed facts that when police arrived, the appellant was still in the process of cutting out the windscreen,[17] and was observed by Police in that process. His Honour’s reference to the appellant being ‘caught red handed’ would therefore seem to be an accurate conclusion on the agreed facts. The appellant submits that the magistrate sentenced the appellant on the basis that his admissions to police and his guilty plea were of little value, given that he was apprehended at the scene.[18] However, it is not apparent that the learned magistrate regarded the appellant’s admissions as being of little value. Moreover, this was not a situation where the appellant was entitled to additional leniency in sentence, as might be expected in the case of an offender who incriminates himself (or others) by disclosing information to police about a crime of which the police are unaware, or where police do not have sufficient evidence to press charges in respect of a crime of which they are aware.[19]