R v Brancourt - [2013] NTSC 56

The Queen v Brancourt [2013] NTSC 56
PARTIES:The Queen

v
Brancourt, Scott

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21249123
DELIVERED:  3 SEPTEMBER 2013
HEARING DATES:  22 AUGUST 2013
JUDGMENT OF:  KELLY J
CATCHWORDS:

CRIMINAL LAW—Sentencing—Mandatory sentencing provision repealed—Whether able to be sentenced under repealed provision— Whether defendant subject to a “liability” under repealed provision—Whether liability to a punishment incurred before repeal—Held that liability incurred at time offence committed —Held that liable for sentence under previous provision.
STATUTORY INTERPRETATION—Transitional provisions—Sentencing—Whether Interpretation Act preserved penalties under repealed sections—Held that liability to punishment occurs at time offence committed—Held that penalties under repealed section apply to defendant.
Criminal Code (NT) s 14
Interpretation Act (NT) s 12(c), s 12(d)
Sentencing Act (NT) s 78BA
Commissioner of Taxation v Price [2006] 2 Qd R 319; R v White [2006] NTSC 95, applied.
REPRESENTATION:
Counsel:
Plaintiff:D Dalrymple
Defendant:P Maley
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:Maley & Burrows Barristers & Solicitors
Judgment category classification:   B
Judgment ID Number:  KEL13012
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Brancourt [2013] NTSC 56
No. 21249123
BETWEEN:

THE QUEEN

Plaintiff

AND:

SCOTT BRANCOURT

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 3 September 2013)

The defendant Scott Brancourt has pleaded guilty to a charge of aggravated assault against his wife, Bianca Brancourt, on 23 December 2012, contrary to s 188 of the Criminal Code.
As at the date of commission of the offence the provisions of s 78BA of the Sentencing Act applied to a range of crimes of violence including the offence to which Mr Brancourt has pleaded guilty. It provided, in sub-section (2):
(2)If a court finds an offender guilty of an offence to which this section applies, the court must record a conviction and must order that the offender serve:
(a)a term of actual imprisonment; or
(b)a term of imprisonment that is partly, but not wholly, suspended.
That provision of the Sentencing Act (indeed the whole of Part 3 Division 6A in which s 78BA was contained) was repealed by the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 which introduced a new Part 3, Division 6A containing a complicated mandatory sentencing regime for certain violent offences, including the offence to which the defendant has pleaded guilty. The amending Act commenced on 1 May 2013: it also introduced into the Sentencing Act a new s 78EA which provides:
This Division does not apply in relation to an offence committed before the commencement of s 6 of the Amendment (Mandatory Minimum Sentences) Act 2013. (ie 1 May 2013)
There are no other transitional provisions.
As the offence to which the defendant has pleaded guilty was committed before 1 May 2013, the Crown argues that the old s 78BA applies. The Defence on the other hand contends that s 78EA creates a lacuna: s 78BA has been repealed and the new Division…

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 R v Brancourt

Details

AGLC: The Queen v Brancourt [2013] NTSC 56
Case: [2013] NTSC 56
Decision Date: 3 SEPTEMBER 2013

CaseChat Overview and Summary

In the case before the court, the defendant, Brancourt, was charged with an offence that occurred prior to the repeal of a particular mandatory sentencing provision. The central issue was whether the defendant could be sentenced under the repealed provision, or if the repeal meant that he was only subject to sentencing under the current legislation. The court was also required to determine whether the defendant was subject to a liability for a punishment under the repealed provision, and if this liability had been incurred before the repeal of the law.

The court considered the timing of the defendant's liability to punishment. It found that the liability to punishment occurred at the time the offence was committed, rather than at the time of sentencing. Given that the offence was committed before the repeal of the mandatory sentencing provision, the court held that the defendant was indeed subject to a liability for a punishment under the repealed section. The court further held that the repeal of the provision did not affect the defendant's liability to punishment, as this liability had already been incurred at the time of the offence.

In light of these findings, the court concluded that the defendant was liable for sentencing under the previous provision, as his liability for punishment had been incurred before the repeal. The transitional provisions of the Interpretation Act did not preserve penalties under the repealed sections, reinforcing the court's decision that the penalties under the repealed section applied to the defendant. The court thus ruled that the defendant must be sentenced under the provision that was in force at the time of the offence. This decision underscores the importance of the timing of the offence in relation to the application of sentencing provisions.

Orders