R v Lange - [2007] NTCCA 3

The Queen v Lange [2007] NTCCA 3

PARTIES: THE QUEEN

RICKY MARTIN LANGE

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

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 21 of 2006 (20509936)

DELIVERED: 2 March 2007

HEARING DATES: 2 March 2007

JUDGMENT OF: MARTIN (BR) CJ, THOMAS &
RILEY JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL
Crown appeal against sentence - punishment and general deterrence - whether gravity of offending outweighed personal circumstances - suspension of entire sentence resulted in sentence manifestly inadequate - appeal allowed – re-sentenced.

R v Osenkowski (1992) 30 SASR 212; R v Riley (2006) 161 A Crim R 414, applied

Massie v R [2006] NTCCA 15; R v Bara (2006) 17 NTLR 220, referred to.

REPRESENTATION:

Counsel:
Appellant: N Rogers
Respondent: R Goldflam

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission

Judgment category classification: A
Judgment ID Number: Mar0702
Number of pages: 28

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

The Queen v Lange [2007] NTCCA 3
No. CA 21 of 2006 (20509936)

BETWEEN:

THE QUEEN
Appellant

AND:

RICKY MARTIN LANGE
Respondent

CORAM: MARTIN (BR) CJ, THOMAS & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 2 March 2007)

Martin (BR) CJ:
Introduction
[1] The respondent pleaded guilty to unlawfully causing grievous harm to his five and a half year old son. The learned Sentencing Judge imposed a sentence of three years imprisonment. The respondent having been in custody for five days awaiting sentence and for one or two days following arrest, his Honour directed that the sentence be suspended immediately. The Director of Public Prosecutions appeals against the sentence on the sole ground that the sentence is manifestly inadequate.

Facts
[2] The offence occurred on 25 April 2005. At that time the respondent lived in Alice Springs with his partner and four children, two of whom were born of that relationship. The eldest child was the partner’s child from a previous relationship.

[3] The victim was born on 29 October 1999 as a result of the respondent’s previous relationship with the victim’s mother. The victim and his mother lived in South Australia. In January 2005 when the victim was aged five years, the victim’s mother sent the victim to visit the respondent in Alice Springs. The victim was enrolled at primary school in Alice Springs and lived with the respondent, his partner and the other three children. The respondent extended the victim’s stay in Alice Springs and, after a disagreement between the respondent and the victim’s mother, a booking was made for the victim to return to South Australia on 5 May 2005.

[4] According to the Crown facts, the victim experienced difficulties in fitting into his new school and his new family environment. At the respondent’s house, the victim was smacked and hot chilli was put in his mouth as a punishment for swearing. The victim also got into…

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 Lange

Details

AGLC: R v Lange [2007] NTCCA 3
Case: [2007] NTCCA 3
Decision Date: 2 March 2007

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Mr Lange, by a single judge. The dispute concerned whether the sentence of imprisonment, which was entirely suspended, was manifestly inadequate given the gravity of the offending and the need for general deterrence. The appeal was heard by Martin (Br) CJ, Thomas and Riley JJ.

The central legal issue before the Court was whether the sentencing judge had given sufficient weight to the seriousness of the respondent's criminal conduct and the importance of general deterrence when deciding to suspend the entire period of imprisonment. The Court was required to determine if the personal circumstances of the respondent, which were considered by the sentencing judge, outweighed the gravity of the offending to such an extent that a fully suspended sentence was appropriate.

The Court reasoned that while personal circumstances are a relevant consideration in sentencing, they must be balanced against the objective seriousness of the offence and the need to deter others. Applying principles from cases such as *Massie v R* and *R v Osenkowski*, the Court found that the sentencing judge had erred by placing too much emphasis on the respondent's personal circumstances, leading to a sentence that was demonstrably too lenient and failed to adequately reflect the gravity of the offending and the need for general deterrence.

Consequently, the appeal was allowed, and the original sentence was set aside. The Court imposed a new sentence of three years imprisonment, suspended after the respondent served six months. This suspended sentence was conditional upon the respondent entering into a bond to be of good behaviour for two years and six months from his release. The operative period for the purposes of the *Sentencing Act* was determined to be two years and six months from the date of release.

Orders

Orders of the court

The appeal should be allowed and the sentence imposed by the Judge should be set aside. I would impose a sentence of three years imprisonment suspended after the respondent has served six months on condition that the respondent enter into a bond to be of good behaviour for a period of two years and six months from the date of his release. The operative period for the purposes of the Sentencing Act should be two years and six months from the date of release.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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