R v Hopkins

Case [2008] NTSC 15

The Queen v Hopkins [2008] NTSC 15

PARTIES:THE QUEEN

v

LANCE MARTIN HOPKINS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:SCC 20630071, 20701927, 20701930, 20701932 and 20701937

DELIVERED:  18 March 2008

HEARING DATES:  15 February 2008

JUDGMENT OF:  SOUTHWOOD J

CATCHWORDS:

CRIMINAL LAW – Sentencing – Crown application to reopen sentencing proceedings – non-parole period – aggregate sentence - the relationship between s 53(2) and s 55A of the Sentencing Act (NT) – whether the non-parole period fixed under s 53(2) of the Sentencing Act is subject to the provisions of s 55A of the Sentencing Act – Application allowed

Sentencing Act 1995 (NT)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Bugmy v R (1990) 169 CLR 525; R v Chan (1994) 76 A Crim R 252; Clinch (1994) 72 A Crim R 301; Deakin v R (1984) 11 A Crim R 88; R v EO (2004) 8 VR 154; CEV v The Queen [2005] NTCCA 10; Inkemala v The Queen [2005] NTCCA 6; Kotis v The Queen [2005] NTCCA 13; R v Oancea (1990) 51 A Crim R 141; Power (1974) 131 CLR 623; R v Rajacic [1973] VR 636;

R v Stewart [1984] 35 SASR 477; Tutchell [1979] VR 248, referred to

Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471, followed

REPRESENTATION:

Counsel:

Applicant:R Coates

Respondent:  J Lawrence

Solicitors:

Applicant:Office of the Director of Public Prosecutions

Defendant:North Australian Aboriginal Justice Agency

Judgment category classification:    B

Judgment ID Number:  Sou0803

Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Hopkins [2008] NTSC 15

Nos 20630071, 20701927, 20701930, 20701932 and 20701937

BETWEEN:

THE QUEEN

Applicant

AND:

HOPKINS, Lance Martin

Respondent

CORAM:     SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 18 March 2008)

The sentences imposed on the respondent

  1. On 30 January 2008 the respondent was convicted of four sexual offences and two drug offences and the court passed the following sentences of imprisonment on the respondent: for the crime of unlawful penile/vaginal sexual intercourse with SS, a child under the age of 16 years, which was committed between 14 December 2005 and 30 August 2006 at Borroloola, the respondent was sentenced to three years imprisonment; for the crime of unlawful penile/vaginal sexual intercourse with SY, a child under the age of 16 years, which was committed between 19 August 2006 and 6 November 2006 at Borroloola, the respondent was sentenced to three years imprisonment; one year of the sentence of three years imprisonment was ordered to be served concurrently with the sentence of three years imprisonment that was imposed on the respondent for the crime of unlawful penile/vaginal sexual intercourse with SS; for the crime of having unlawful digital/vaginal sexual intercourse with SY, a child under the age of 16 years, which was committed between 19 August 2006 and 6 November 2006 at Borroloola, the respondent was sentenced to 18 months…

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AGLC
R v Hopkins [2008] NTSC 15
Case
[2008] NTSC 15
Decision Date

CaseChat Overview and Summary

In the case of R v Hopkins, the defendant was before the court on an application by the Crown to reopen sentencing proceedings. The matter pertained to the non-parole period within the defendant's aggregate sentence. The legal issues for determination were whether the non-parole period fixed under section 53(2) of the Sentencing Act (NT) was subject to the provisions of section 55A of the same Act.

The court examined the language and purpose of the Sentencing Act, particularly the interplay between sections 53(1), 53(2), 53A, 54, 55, and 55A. The court found that section 53(2) should be read in the context of section 53 as a whole, and section 53 should be read sequentially from the beginning. This interpretation aligns with the intention of the legislature and the established practice in sentencing. The court held that the non-parole period fixed under section 53(2) must be a period that varies in accordance with the provisions of sections 53A, 54, 55, and 55A, ensuring consistency with the legislature's intent and judicial practice.

Following this reasoning, the Crown's application to reopen sentencing proceedings was allowed. The court set aside the non-parole period of three years previously fixed and instead imposed a non-parole period of three years and six months, backdated to the original sentencing date. This decision ensured that the non-parole period adhered to the statutory framework and the overarching legislative intent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, for the reasons set out below I prefer the argument of the Crown.Conclusion Subsection 53(2) must be read in the context of s 53 as a whole and s 53 should be read in the ordinary way, that is, from the beginning of the section onwards. In Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471 at 474 to 475 Priestley JA stated:... I see no reason why the Act should not be read in the ordinary way in which a document is read, that is, from the beginning onwards. In the ordinary course of reading, s 4, although of course it must be read with both what precedes it and follows it, must be read after s 3 and further, in the ordinary course it seems to me that it must be read in the light of section 3. It is preposterous, in the literal sense, to read s 4, make assumptions concerning its purpose based on its language, without reference to what preceded it and then to read s 3 in the light of the purpose thus discerned in s 4. A much sounder way of reaching what the draughtsman's purpose was is to read his Act in the sequence in which you wrote it. When s 53(2) of the Act is read in light of s 53(1) of the Act it is apparent that s 53(1) is the leading provision and that s 53(2) is subordinate to s 53(1). Under s 53(1) of the Sentencing Act the period during which the offender is not eligible to be released on parole is a period which varies in accordance with the provisions of s 53A, s 54, s 55 and s 55A of the Act. Accordingly, the “period fixed under subsection (1)” which is referred to in s 53(2) of the Act must be a period that varies in accordance with the provisions of s 53A, s 54, s 55 and s 55A of the Act. Otherwise, it would mean that theoretically the court could fix a shorter non-parole period under s 53(2) of the Act than it could under s 53(1) of the Act. Such an interpretation of s 53(2) is consistent with the intention of the legislature that the minimum term of imprisonment that justice requires an offender must serve is greater for some offences than it is for others. It is also consistent with the practice of the court in numerous cases including CEV v The Queen [2005] NTCCA 10; Inkemala v The Queen [2005] NTCCA 6; Kotis v The Queen [2005] NTCCA 13; the sentencing remarks of Martin CJ in The Queen v Kyle Horace SCC 20425514 (22 March 2007); the sentencing remarks of Thomas J in The Queen v Heritage SCC 2051205 (1 August 2006); and the sentencing remarks of Thomas J in The Queen v LL SCC 20613271 (13 October 2006).Orders Accordingly I make the following orders:1. The Crown’s application is allowed.2. The non-parole period of three years that was fixed by the court on 30 January 2008 is set aside.3. I fix a non-parole period of three years and six months. The non-parole period is back dated to 11 October 2007.-------------------------------------------

Ratio Decidendi

Legal Principle Established

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