R v Puruntatameri; R v Anthony - [2007] NTSC 62

R v Puruntatameri; R v Anthony [2007] NTSC 62
PARTIES:THE QUEEN

v
PURUNTATAMERI, Peter

FILE NO:20427083

AND
THE QUEEN
v
ANTHONY, Jeremy

FILE NOS:20326538/20716004
TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
DELIVERED:  9 NOVEMBER 2007
HEARING DATES:  28 SEPTEMBER 2007
JUDGMENT OF:  MARTIN (BR) CJ
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE
Judgment and punishment – sentence – breach of suspended sentence – whether partial restoration of sentence discharges the order made at first instance – partial restoration does not discharge sentence or bring the operational period of sentence to an end.
Sentencing Act 1995 (NT), s 40, s 41, s 42, s 43 and s 53
Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 160 ALR 184, applied.
Walker v The Queen [2001] NTSC 69; The Queen v Haji-Noor [2007] NTCCA 7; Roper v Dore [2000] NTCA 2; R v Buckman (1988) 47 SASR 303; Lawrie v The Queen (1992) 59 SASR 400; R v Holcroft [1997] 2 Qd R 392; R v Bowen [1997] 2 Qd R 379; R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; R v Scott [1993] QCA 280, considered.
REPRESENTATION:
Counsel:
Applicant:R Coates
Respondent:  P Dwyer
Solicitors:
Applicant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:         B
Judgment ID Number:  Mar0714
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Puruntatameri; R v Anthony [2007] NTSC 62

Nos. 20427083; 20326538/20716004
BETWEEN:

THE QUEEN

Applicant

AND:

PETER PURUNTATAMERI

Respondent

AND

THE QUEEN
Applicant

AND

JEREMY ANTHONY
Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 9 November 2007)
Introduction

The Director of Public Prosecutions (“the Director”) has applied for an order restoring the unserved balance of partially suspended sentences imposed upon the respondents. Prior to the current applications, as a consequence of each respondent breaching conditions of suspension the periods held in suspense had been partially restored. Previous partial restoration having occurred, a question has arisen as to whether the order of suspension survived the partial restoration or was discharged by that order.
For the reasons that follow, in my view the operational period continued to operate after partial restoration and the unserved balance of the period held in suspense remained in suspense on the conditions imposed by the sentencing Judge.
Background
Mr Anthony was convicted of Dangerous Act Causing Death. The learned sentencing Judge imposed a sentence of three years imprisonment, commencing 15 March 2005. His Honour ordered that the respondent be released after serving 12 months and that the balance of two years be suspended on conditions including supervision. Pursuant to s 40(6) of the Sentencing Act (“the Act”), his Honour fixed an operational period of the suspension of two years and four months commencing 21 December 2005.
The respondent was released in March 2006. On 15 August 2006 I found that…

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 Puruntatameri; R v Anthony

Details

AGLC: R v Puruntatameri; R v Anthony [2007] NTSC 62
Case: [2007] NTSC 62
Decision Date: 9 November 2007

CaseChat Overview and Summary

In the case of R v Puruntatameri; R v Anthony, the respondents, Mr Anthony and Mr Puruntatameri, were convicted of Dangerous Act Causing Death and Sexual Intercourse without Consent respectively. Both were initially sentenced to terms of imprisonment, with the balance of their sentences suspended on certain conditions. When both respondents breached the conditions of their suspended sentences, the Director of Public Prosecutions applied for an order to restore the entire balance of the suspended sentences. The legal issues revolved around whether partial restoration of a suspended sentence discharges the order made at the first instance and whether the operational period of the sentence ends upon such restoration.

The Court held that partial restoration of a suspended sentence does not discharge the original order nor does it bring the operational period of the sentence to an end. The reasoning was based on the legislative scheme of suspended sentences, which provides that if a court finds it unjust to require the offender to serve the entire suspended sentence, it may order the offender to serve part of the suspended period. The imposition of such a sentence for the period restored is distinct from the original sentence, which remains suspended in part. The Court emphasized that the legislative scheme aims to avoid undermining the integrity of the system of suspended sentences and that the fundamental purpose supports a construction where the court directs the offender to serve a lesser period that would not be unjust. This construction implies that the service of the lesser period discharges the liability to serve the full balance held in suspense.

The Court concluded that the partial restoration does not discharge the sentence or bring the operational period to an end, and the unserved balance of the sentence held in suspense remains in suspense on the conditions imposed by the sentencing judge. Consequently, the Director's application to restore the entire balance of the suspended sentences was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, in my view the operational period continued to operate after partial restoration and the unserved balance of the period held in suspense remained in suspense on the conditions imposed by the sentencing Judge.Background Mr Anthony was convicted of Dangerous Act Causing Death. The learned sentencing Judge imposed a sentence of three years imprisonment, commencing 15 March 2005. His Honour ordered that the respondent be released after serving 12 months and that the balance of two years be suspended on conditions including supervision. Pursuant to s 40(6) of the Sentencing Act (“the Act”), his Honour fixed an operational period of the suspension of two years and four months commencing 21 December 2005. The respondent was released in March 2006. On 15 August 2006 I found that the respondent had breached a condition of the suspension and ordered that three months of the balance of two years be restored from that date. The balance of one year and nine months remained suspended. In addition, I extended the operational period of the suspension by six months. Having served the restored three months, the respondent was released from prison on 14 November 2006. Subsequently he again breached conditions of suspension and the Director has applied for an order that the entire balance of one year and nine months be restored. The respondent Mr Puruntatameri was sentenced to three years and nine months imprisonment for the crime of Sexual Intercourse without Consent. The learned sentencing Judge directed that the respondent be released after serving 18 months and that the balance of two years and three months be suspended on conditions including supervision. The operational period of the suspension was three years commencing 4 September 2006. The respondent served 18 months and was released on 4 September 2006. Following a breach of conditions of suspension, on 4 October 2006 I restored six months of the balance of two years and three months leaving a balance of one year and nine months suspended. I also made an order purporting to extend the operational period of suspension to 18 months following release. In fact that order had the effect of reducing the operational period. After serving the restored period of six months the appellant was released on 27 March 2007. In April 2007 he again breached the conditions of suspension and the Director has applied for an order that the entire balance of one year and nine months be restored.Invalid Orders As I have said, in the case of Mr Anthony on 15 August 2006 I not only restored three months of his sentence, but I purported to extend the operational period by six months. On 15 August 2006, in addition to the application pursuant to s 43(5) of the Act for restoration of the sentence, an oral application was made during the hearing pursuant to s 42 to vary the conditions of suspension. It is now uncertain whether, in extending the operational period, I acted under the application for restoration or the application to vary the conditions. As the application for restoration under s 43(5) did not permit me both to restore part of the sentence and to extend the operational period, and as I may have imposed a sentence that was not in accordance with the law, pursuant to s 112 of the Act I reopened the proceedings. I deleted the order purporting to extend the operational period by six months and on the application to vary I re-imposed that order on the same terms.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the other hand, in the context of the legislative scheme as discussed, the following points are capable of pointing in the direction of the alternative conclusion to which Mildren J was inclined:· If the court is of the opinion that it would be unjust to require the offender to serve the sentence held in suspense, the court is given a number of mutually exclusive options. The Legislature contemplates two possibilities, namely, service of part of the sentence held in suspense or no service of any period in which event the order of suspension continues in force unaltered or altered only by an extension of the operational period. · If the court orders that the offender serve part of the period held in suspense:(i)The court is imposing a sentence of imprisonment for the purposes of s 53.(ii)The sentence being imposed is the period restored.(iii)The court is not imposing a sentence that is suspended in whole or in part. (iv)If the sentence imposed, being the period restored, is a period of 12 months or longer, the court is required to fix a non-parole period unless, by reason of the matters set out in s 53(1), it considers that the fixing of such a period is inappropriate.(v)A non-parole period is fixed by reference only to the sentence imposed, namely, the period restored. The non-parole period is not related in any way to the balance of the original sentence left unserved after partial restoration.(vi)If the court determines to restore part only of the period held in suspense, the court becomes engaged in a sentencing exercise, but an exercise limited to determining how much of the period held in suspense should be served. The court is not sentencing for the original offence. Nor is the court revisiting the head sentence.(vii)In this limited sentencing exercise, while the Legislature has not placed any explicit constraints upon the sentencing discretion, nevertheless it is an exercise conducted in the context of the legislative scheme of suspended sentences. That scheme dictates that service of the entire sentence held in suspense would not have been unjust at the time sentence was imposed and should ordinarily serve following a breach. The unjust exception is only enlivened by circumstances which have arisen since the suspended sentence was imposed.(viii)Bearing in mind the need to avoid undermining the integrity of the system of suspended sentences as discussed earlier in these reasons, the fundamental purpose of the legislative scheme supports a construction that requires the court in these circumstances to direct the offender to serve so much of the sentence held in suspense as would not be unjust. In other words, the amount to be served is reduced below the full balance held in suspense by only so much as is necessary to result in service of a period that would not be unjust.(ix)In determining the period to be served that would not unjust, the circumstances of the original offending and matters personal to the offender that existed at the time the original sentence was imposed provide the context in which the subsequent circumstances are assessed. However, it is by reference to those circumstances occurring after sentence was imposed that the court determines the period which it would not be unjust to require the offender to serve.· Approached in this way, a construction is open that the Legislature intended that service of so much of the period held in suspense as would not be unjust would discharge liability to serve the full period held in suspense notwithstanding that the offender serves a lesser period. Service of the lesser period is treated as full discharge of liability to serve the entire outstanding balance because, at the time the order is made, it would be unjust to require service of that outstanding balance and the “just” lesser period is substituted for the “unjust” balance. · The alternative construction that a partial restoration leaves the operational period in force and the unserved balance held in suspense could have the undesirable consequence that a period on parole occurs during the operational period. This would leave the offender subject to two regimes of “probation” with different consequences flowing from a single event breaching both regimes. Conclusion

Ratio Decidendi

Legal Principle Established

The first step is to form a judgment whether it would be unjust to require service of the full period held in suspense. A positive judgment to that effect having been made, the legislation does not place any explicit constraints upon the discretionary determination as to which of the mutually exclusive powers contained in s 43(5)(d) - (f) should be exercised and in what manner. Restoration – Nature of the Process In determining whether the legislative scheme permits a second restoration of a suspended sentence, it is appropriate to consider the nature of the exercise being undertaken. Is the court imposing a sentence and, if so, is that sentence being suspended for the purposes of the Act? At least for the purposes of s 53 of the Act, it is now settled that in restoring the whole or part of a sentence held in suspense the court is sentencing an offender to be imprisoned. A difference of view on this issue was settled by a specially convened Court of Criminal Appeal comprised of five Judges in The Queen v Haji-Noor [2007] NTCCA 7. By a majority the Court held that s 53 applies in these circumstances and followed the earlier decision of the Full Court in Walker v The Queen [2001] NTSC 69. On a reference the Court in Walker determined that when a court restores a sentence or part of a sentence and orders an offender to serve a period of 12 months or longer, s 53(1) applies and the court has power to fix a non-parole period. Three relevant consequences flow from the decisions in Walker and Haji-Noor that s 53 applies when a suspended sentence is wholly or partly restored. First, as s 53 applies only “where a court sentences an offender to be imprisoned”, it follows that in restoring all or part of a sentence held in suspense, for the purposes of s 53 the court is sentencing an offender to be imprisoned. The court is not revisiting the head sentence nor sentencing for the original offending, but the order of restoration amounts to the imposition of a sentence of imprisonment for the purposes of s 53. Secondly, s 53 only applies if the sentence imposed is “not suspended in whole or in part”. It was held in Walker that s 53 applies when the court restores only part of a suspended sentence. For the purposes of s 53, therefore, when a court restores only part of a period held in suspense, notwithstanding that a balance of the original suspended period remains unserved, a court is not imposing a sentence that is suspended in whole or in part. In respect of the second conclusion, I note the view of Riley J in Haji-Noor to the contrary. His Honour considered that as s 53 could only apply in respect of a sentence “that is not suspended in whole or in part”, s 53 could only apply where “the whole of the sentence has been restored” [135]. A contrary view was taken by Mildren J at [93] – [95] and Southwood J at [199]. Thomas J did not address this specific question. However, as Mildren J pointed out at [95], single Judges and Magistrates are bound by Walker which unambiguously determined that s 53 applies to a sentence restored in part.