R v Loader - [2002] NTSC 61

R v Loader [2002] NTSC 61
PARTIES:THE QUEEN

v
DAVID KEVIN LOADER

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:(20110382)
DELIVERED:  22 October 2002
HEARING DATES:  8 and 9 October 2002
JUDGMENT OF:  GALLOP AJ
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:R. Wild QC & G. Dooley
Respondent:  J. Tippett QC & H. Spowart
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:        C
Judgment ID Number:  gal200202
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Loader [2002] NTSCCA 61
No. (2011382)

BETWEEN:
THE QUEEN

Appellant
AND:
DAVID KEVIN LOADER

Respondent

CORAM: GALLOP AJ
REASONS FOR JUDGMENT
(Delivered 22 October 2002)

On 19 August 2002 the accused was arraigned on an indictment charging him with one offence of murder on 5 July 2001 at Wagait in the Northern Territory of Australia. Upon his arraignment he pleaded not guilty and his trial continued until 27 August 2002 when the jury returned a verdict of guilty. When he appeared for sentence on 8 October 2002, it was submitted on his behalf that the penalty provided for the crime of murder is discretionary up to a maximum of life imprisonment. It is necessary to rule upon that submission before proceeding to sentencing.
The punishment for murder is set out in s 164 of the Criminal Code which reads:
“Any person who commits the crime of murder is liable to imprisonment for life which cannot be mitigated or varied under this Code or any other law in force in the Territory.”
When the Criminal Code was enacted in 1984, s 164 was worded differently, that is:
“Any person who commits the crime of murder is liable to imprisonment for life which cannot be mitigated or varied under section 390.”
Section 390(1) of the Criminal Code was in the following terms:
“A person liable to imprisonment for life or for any other term may be sentenced to imprisonment for any shorter term.”
By Act No. 17 of 1996 the Criminal Code was amended so as to delete the words “section 390” and substitute the words “this Code or any other law in force in the Territory”.
The amendment of s 164 into its present form by the Sentencing (Consequential Amendments) Act 1996 as set out above gives some indication that the legislature intended that the punishment of imprisonment for life for murder should be mandatory rather than discretionary.
It is well settled law that if it is intended to provide a mandatory penalty, clear words can, and should be, used. See Sillery v The Queen (1994) 180 CLR 353 per Gibbs CJ at 357. Murphy J, in the same case, was a member of the majority. He stated the law in the following words (at 359):
“The policy of maximum and not mandatory penalties is so pervasive that it should be presumed that any penalty is…

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 Loader

Details

AGLC: R v Loader [2002] NTSC 61
Case: [2002] NTSC 61
Decision Date: 22 October 2002

CaseChat Overview and Summary

In the case of R v Loader, the appellant, David Kevin Loader, was convicted of the murder of another individual on 5 July 2001 in Wagait, Northern Territory. The Supreme Court of the Northern Territory presided over the case, exercising its Territory jurisdiction. The central legal issue addressed by the court was whether the penalty for murder, as prescribed in section 164 of the Criminal Code, was mandatory imprisonment for life or if it allowed for any discretion by the sentencing court. The court also considered the relative criminality of the offence and the personal circumstances of the accused in determining the appropriate sentence.

The court examined the legislative history and the wording of section 164, concluding that the punishment for murder was indeed mandatory imprisonment for life, as intended by the legislature. The court noted that if a mandatory penalty was intended, clear language must be used, and the absence of such language in section 164 of the Criminal Code suggested a maximum penalty rather than a mandatory one. However, the court found that the amendment of the section in 1996, which removed the reference to section 390, indicated the legislature's intent to make the punishment for murder mandatory. The court also considered the legislative framework, which distinguished the punishment for murder from that of manslaughter, and the exclusion of murder from parole provisions, reinforcing the conclusion that the penalty for murder is mandatory.

The court acknowledged that the offence, while not the most severe case of murder, involved a senseless killing with callous and cruel elements. The accused had shown little remorse and boasted about the crime while in custody. The court also considered the accused's personal circumstances, which did not warrant any leniency. Given the mandatory nature of the penalty for murder, the court sentenced the accused to imprisonment for life, effective from the date of his first custody.

The final orders of the court were that David Kevin Loader be imprisoned for life, with the term to commence from 10 July 2001, the date he was first taken into custody.

Orders