Reid v Rowbottam - [2005] NTSC 7

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PARTIES: REID, Reginald

ROWBOTTAM, Helen

TITLE OF COURT: FULL COURT OF THE
SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: FULL COURT OF THE
SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: JA 74 of 2004 (20410079)

DELIVERED: 1 March 2005

HEARING DATES: 11 February 2005

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

CATCHWORDS:
CRIMINAL LAW
Appeal – Justice Appeal – Justices Act 1928 (NT), appeal on sentence – Sentencing Act (NT) s 78BA – proper construction – one or more times before been found guilty – general deterrence – violent crimes against women and children – rehabilitation – appeal allowed.

Ryszawa v Samuels [1969] SASR 158; O’Hara v Harrington [1962] Tas SR 165; Samuels v Mackenzie (1979) 23 SASR 595; Clark v Glover (1992) 58 SASR 571; Police v Nowak (2000) 76 SASR 551, applied.
Kennan v Mears (unreported, Supreme Court of Victoria, delivered 25 January 1990); Carter v Denham [1984] WAR 123, referred to.
Schluter v R (1997) 6 NTLR 194; Turbitt v Pryce (unreported, Kearney J, delivered 21 January 1998), approved.

D v Gokel (1998) 123 NTR 1, overruled.
R v Hallam (Mildren J, unreported, delivered 17 September 1998); Davis v Howley (2003) NTSC 6, considered.

REPRESENTATION:

Counsel:
Appellant: G Dooley
Respondent: M Carey

Solicitors:
Appellant: NAALAS
Respondent: DPP

Judgment category classification: A
Judgment ID Number: Mar0503
Number of pages: 24

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

Reid v Rowbottam [2005] NTSC 7
No. 74 of 2004 (20410070)

BETWEEN:

REGINALD REID
Appellant

AND:

HELEN ROWBOTTAM
Respondent

CORAM: MARTIN (BR) CJ, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 1 March 2005)

Martin (BR) CJ:
Introduction
[1] This is an appeal against a sentence imposed by a Magistrate. The appeal involves consideration of the proper interpretation of s 78BA of the Sentencing Act in respect of which Judges of the Supreme Court have expressed different views. In those circumstances the appeal was referred by a single Judge to this Court.
[2] On 17 August 2004 the appellant pleaded guilty before a Magistrate to unlawful assault and to the circumstance of aggravation that the victim of the assault was a female and the appellant a male. The learned Magistrate sentenced the appellant to four months imprisonment and directed that the sentence be suspended after the appellant had served 14 days. The appellant appeals against the sentence alleging that the sentence is manifestly excessive and that the Magistrate erred in a number of respects.
[3] At the hearing of the appeal, counsel for the respondent properly conceded that the appeal should be allowed and that this Court should impose sentence. Upon an intimation as to the sentence the Court had in mind, both counsel indicated that they had no objection to the proposed sentence. In those circumstances the Court ordered that the order of the Magistrate be set…

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 Reid v Rowbottam

Details

AGLC: Reid v Rowbottam [2005] NTSC 007
Case: [2005] NTSC 7
Decision Date: 01 March 2005

CaseChat Overview and Summary

The Full Court of the Supreme Court of the Northern Territory dealt with an appeal against sentence by Reginald Reid who had been convicted of assault. The Full Court held that the Magistrate had erred in the application of s 78BA of the Sentencing Act and that the sentence imposed by the Magistrate was manifestly excessive. The Full Court set aside the order of the Magistrate and imposed a sentence of three months imprisonment to be suspended immediately subject to conditions. The Full Court was of the view that the appellant was a suitable candidate for rehabilitation and that the public interest was best served by allowing the appellant to continue his rehabilitation without the interruption of a period of custody.

Orders