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 11Cranssen 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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- AGLC
- Qadir v Rigby [2012] NTSC 90
- Case
- [2012] NTSC 90
- Decision Date
CaseChat Overview and Summary
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
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]