R v Duncan

Case [2015] NTCCA 2

The Queen v Duncan [2015] NTCCA 2

PARTIES:  THE QUEEN

v

DUNCAN, Sharay

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 14 of 2014 (21419073)

DELIVERED:  9 February 2015

HEARING DATES:  9 February 2015

JUDGMENT OF:  RILEY CJ, SOUTHWOOD & HILEY JJ

APPEALED FROM:  BLOKLAND J

CATCHWORDS:

CRIMINAL LAW – sentencing – Crown appeals against sentence – manifest inadequacy – whether sentence reflects objective seriousness of offending. 

CRIMINAL LAW – sentencing – exceptional circumstances – exercise of discretion – s 78DI Sentencing Act 1995 (NT)

Sentencing Act 1995 (NT), ss 78CA; 78DI.

Whitehurst v The Queen [2011] NTCCA 11; R v Cavenagh-Novelli [2014] NTCCA 21; R v Kelly [2000]1 QB 198; Griffiths v The Queen (1989) 167 CLR 372; Baker v The Queen (2004) 223 CLR 513, applied.

Northern Territory, Parliamentary Debates, Legislative Assembly, 29 November 2012; Owens v Stevens [1991] VSC 91 (3 May 1991); R v Tootell [2012] QCA 273, referred to.

Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290, followed.

REPRESENTATION:

Counsel:

Appellant:MN Nathan

Respondent:  GA Georgiou SC and J Hunyor

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    B

Number of pages:  12

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Duncan [2015] NTCCA 2

No. CA 14 of 2014 (21419073)

BETWEEN:

THE QUEEN

Appellant

AND:

SHARAY DUNCAN

Respondent

CORAM:     RILEY CJ; SOUTHWOOD AND HILEY JJ

REASONS FOR JUDGMENT
Ex Tempore
(Delivered 9 February 2015)

THE COURT:

Introduction

  1. This was a Crown appeal against sentence. On 9 February 2015 the Court allowed the appeal and resentenced the respondent. These are the reasons for so doing.

  2. On 17 September 2014 the sentencing Judge sentenced the respondent to 18 months imprisonment for the offence of unlawfully causing serious harm. The sentence was back dated to 15 September 2014 and suspended forthwith.

  3. The offence committed by the respondent was a level 5 offence under s 78CA(1) of the Sentencing Act 1995 (NT). It carried a maximum penalty of 14 years imprisonment and, unless there were exceptional circumstances, the Court was required to impose a minimum sentence of three months actual imprisonment.

  4. The Crown appealed against the sentence on the following grounds:

    1. the sentencing Judge erred in finding that the circumstances of the case were ‘exceptional’ pursuant to s 78DI of the Sentencing Act so as to displace the minimum mandatory term of imprisonment;

    2.   the sentencing Judge erred by imposing a sentence which was manifestly inadequate in all the circumstances of the case.

    The main issue – manifest inadequacy

  5. The main issue was whether the sentence imposed on the respondent was manifestly inadequate. In our opinion, it was. The appeal was allowed and the respondent was resentenced.

  6. In all Crown appeals, the primary consideration for the Crown should be whether the sentence is manifestly inadequate. If…

Continue reading R v Duncan

Sign in free to access the full text

Details
AGLC
R v Duncan [2015] NTCCA 2
Case
[2015] NTCCA 2
Decision Date

CaseChat Overview and Summary

This case concerned a Crown appeal against a sentence imposed on the respondent, who had been convicted of a violent offence. The dispute centred on whether the original sentence was manifestly inadequate, failing to reflect the objective seriousness of the offending. The appeal was heard by Riley CJ, Southwood and Hiley JJ.

The legal issues before the Court were whether the sentence imposed was manifestly inadequate and, in light of the mandatory minimum sentencing provisions in the *Sentencing Act 1995* (NT), whether there were exceptional circumstances justifying a departure from such a minimum. The Court was required to determine if the original sentence was so disproportionate to the gravity of the offence that it shocked the public conscience.

The Court reasoned that while the respondent's subjective circumstances, including her youth, remorse, early guilty plea, and responsibility for her child, warranted considerable leniency, the objective seriousness of the stabbing offence was undeniable. The respondent had stabbed the victim with a knife, causing a life-threatening injury that required emergency surgery. The Court found that the original sentence was so disproportionate to the objective seriousness of the offending that it was manifestly inadequate and shocked the public conscience. Consequently, the appeal was allowed, the original sentence was set aside, and the respondent was resentenced. The Court noted that the mandatory minimum sentencing regime only applied if the otherwise appropriate sentence fell below the prescribed minimum, and in this instance, the need to consider exceptional circumstances did not arise as the appropriate sentence involved actual imprisonment.

Orders

Orders of the court

Resentence:

In determining an appropriate sentence this Court took into account the youth of the respondent, her responsibility for her child and the other mitigatory factors referred to in the court below.

The respondent was convicted and sentenced to a term of imprisonment of three years backdated to 7 February 2015 to take account of time spent in custody. It was directed that the sentence be suspended after six months. An operational period of two years and six months from the date of her release from prison was set.

Background

Background to the litigation

In all Crown appeals, the primary consideration for the Crown should be whether the sentence is manifestly inadequate. If a sentence is not manifestly inadequate the Crown should be very reluctant to exercise its right of appeal. While the principle of double jeopardy has been abrogated for Crown appeals against sentence, little is gained from subjecting an offender to a Crown appeal against sentence if the sentence imposed is not manifestly inadequate. The facts The respondent and the victim lived at Kalkarindji. They were in a domestic relationship and have a one year old daughter. On 14 April 2014 the respondent, the victim and some of their friends were drinking alcohol at a drinking spot seven kilometres from Kalkarindji, and they got drunk. The alcohol was purchased from the Top Springs Hotel. After drinking for some time, the respondent asked the victim to return home with her. He refused. She became very angry and they had an argument. During the course of the argument the respondent threatened to stab the victim with a pen. The victim kicked her in the chest to prevent her from doing so. The respondent then turned away from the victim and asked her friend for a knife which the respondent had brought with her. As the victim started moving away, the respondent raised the knife to shoulder height, closed her eyes, and stabbed him once in the back. The knife handle broke off in her hand and the full length of the blade remained embedded in the victim’s back. The victim then grabbed the respondent by her hair, pulled her to the ground and punched her to the head. She dropped the knife handle and bystanders stopped the victim from continuing to punch the respondent. The blade of the knife was 11 centimetres long. The respondent then called the police and an ambulance. The victim was taken to Katherine Hospital for assessment and was then medically evacuated to the Royal Darwin Hospital. He underwent emergency surgery to remove the knife blade which had penetrated deeply into his back and chest. The blade missed his heart but pierced his right lung. Fortunately no major blood vessel was severed. The blade was removed and chest drains were put in place to drain the chest cavity of blood. The victim was given a blood transfusion. He was treated in the intensive care unit and discharged from the Royal Darwin Hospital on 28 April 2014. The victim suffered a life threatening injury. If the victim did not receive medical treatment, he could have died. However, after the victim received treatment, his injuries resolved and he has no ongoing disability. Such violent drunken assaults are prevalent in the Northern Territory.Subjective circumstances The respondent was 19 years of age at the time of the offending. She is an Aboriginal woman who speaks Gurindji. She went to school in Kalkarindji and attended school until the end of year 6. She has never been in employment. The respondent lives with the victim, their child, and her brother and sister in law. She receives a Centrelink parenting payment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The sentencing Judge made the following important findings. The respondent was immediately remorseful following the incident. She waited with the victim until the police and ambulance arrived. Her remorse was genuine and sincere. The respondent made spontaneous admissions to police when they arrived at the drinking spot and she subsequently made full formal admissions of her offending. The respondent’s plea of guilty was an early plea of guilty. The respondent performed a useful role by looking after her young child who was still being breast fed at the time of sentencing. The respondent had not consumed alcohol since she committed the offence. The respondent and the victim were still together and the victim had forgiven her. The respondent had reasonable to good prospects of rehabilitation.Consideration The offending is objectively very serious. Knives are very dangerous weapons. The respondent threatened to stab the victim with a pen and then stabbed him with the knife with such force that the whole blade went into the victim’s body, and remained embedded in his back. It is fortunate that the victim did not die. Such crimes are a great drain on the medical resources of the Northern Territory and are an enormous cost to the community. The victim had to be medically evacuated to the Royal Darwin Hospital, where he remained for 14 days. The blade of the knife had to be surgically removed and the victim required a blood transfusion. While the objective seriousness of the offending is qualified by the fact that it was spontaneous and unplanned, the respondent’s reaction was utterly disproportionate to the victim’s conduct which gave rise to the domestic argument. Further, it was the respondent’s conduct which escalated the argument from a verbal argument to a physical altercation. There is no apparent reason why she could not have gone home by herself. In our opinion, the sentence imposed on the respondent was manifestly disproportionate to the objective seriousness of her offending. While the subjective circumstances do entitle the respondent to considerable leniency, such factors cannot result in a sentence which is not justly proportionate to the respondent’s offending. The sentence imposed on the respondent was so manifestly disproportionate to the seriousness of the offending that it shocks the public conscience.[1] In those circumstances the appeal was allowed, the sentence was set aside and the respondent was resentenced. The mandatory minimum sentencing scheme Because we have upheld ground 2, and imposed a sentence that involves actual imprisonment for a period exceeding three months, we do not need to consider ground 1. However, as there was extensive argument concerning the expression “exceptional circumstances” in s 78DI of the Sentencing Act we add the following observations. In 2013, the Sentencing Act was amended to provide a regime of mandatory minimum terms of actual imprisonment for violent offences. It is important to appreciate that the regime has application only where the sentence which would otherwise have been imposed is less than the legislatively prescribed mandatory minimum. If, having regard to all of the surrounding circumstances, including: the circumstances of the offending; the circumstances of the offender; the maximum penalty and the terms of any other statutory requirement, the appropriate sentence exceeds the mandatory minimum sentence, then the need to consider exceptional circumstances does not arise.