Roper v Dore - [2000] NTCA 2

Roper v Dore [2000] NTCA 2
PARTIES:ESTELLE ROPER

v
CHRISTINE DORE

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:9523001 (AP26 of 1999)
DELIVERED:  1 June 2000
HEARING DATES:  11 April 2000
JUDGMENT OF:  ANGEL, MILDREN AND RILEY JJ
REPRESENTATION:
Counsel:
Appellant:P. Elliott
Respondent:  J. Blokland
Solicitors:
Appellant:North Australia Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  ril0011
Number of pages:  10

ril0011
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Roper v Dore [2000] NTCA 2
No. 9523001 (AP26 of 1999)

BETWEEN:
ESTELLE ROPER

Appellant
AND:
CHRISTINE DORE

Respondent

CORAM: ANGEL, MILDREN AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 1 June 2000)

At the conclusion of the hearing of this matter the Court allowed the appeal. The order of Bailey J of 12 October 1999 was set aside as was the order of Mr Wallace SM of 11 August 1999. The Court ordered that the sentence imposed by Mr McGregor SM be suspended forthwith upon condition that, during the period of that suspension, the appellant place herself under the supervision of a delegate of the Director of Correctional Service and obey all reasonable directions of the Director as to vocational training, employment, residence, associates, reporting and education, counselling and treatment for alcohol abuse and anger management, including attendance at a residential rehabilitation centre. For the purposes of section 40(6) of the Sentencing Act the court directed that the operational period of the order is 10 months from 11 April 2000. The Court indicated that reasons for decision would be published at a later date. These are those reasons.
The History
The appellant came before the Court of Summary Jurisdiction on 11 August 1999 to be dealt with for failing to comply with conditions imposed upon her in relation to her conditional release from prison. Between December 1996 and June 1998 she had been convicted and sentenced in relation to a series of offences. The cumulative effect of that process was that, on 26 June 1998, Mr McGregor SM ordered that she serve a period of imprisonment of 29 months calculated with effect from 2 April 1998. On that occasion the Court ordered that she be released on 1 February 1999 and the balance of her imprisonment be held in suspense. Pursuant to s 40(6) of the Sentencing Act the Court specified a period of 18 months from 26 June 1998 as the period during which the appellant was not to commit another offence punishable by imprisonment if she was to avoid being dealt with under s 43 of the Sentencing Act.
The appellant was released from prison on 1 February 1999 subject to conditions that she :
“(1)Place herself under the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions as to vocational training, employment, residence, associates and reporting and educational counselling and treatment for…

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 Roper v Dore

Details

AGLC: Roper v Dore [2000] NTCA 2
Case: [2000] NTCA 2
Decision Date: 1 June 2000

CaseChat Overview and Summary

In the case of Roper v Dore, the appellant, a 28-year-old married Aboriginal woman, was subject to a legal dispute regarding the restoration of a suspended sentence imposed by a court. The appellant had been conditionally released from prison, with conditions including participation in a rehabilitation program. However, she breached these conditions by leaving the program without permission and failing to report to the police as required. The lower court had ordered the restoration of a suspended sentence of 18 months, which the appellant contested.

The primary legal issue before the court was whether the lower court was correct in imposing the full suspended sentence on the appellant for breaching the conditions of her conditional release. The appellant argued that the sentence was disproportionate to her breach, considering her efforts towards rehabilitation and her intention not to defy the conditions directly. The court had to determine whether the imposition of the full suspended sentence was just and whether there was a significant discrepancy between the sentence and the nature of the breach.

The court found that the appellant's departure from the rehabilitation program was not in direct defiance of the conditions, but rather due to cultural and moral pressures. Additionally, the appellant had reduced her alcohol consumption and expressed a desire to resume the rehabilitation program, indicating some progress towards rehabilitation. The court concluded that the 18-month sentence was disproportionate to the breach and thus unjust in the circumstances. There was a gross discrepancy between the sentence and the nature of the breach, leading the court to set aside the lower court's order and remit the matter for reconsideration.

The final order of the court was to set aside the lower court's order that restored the suspended sentence and to remit the matter to the lower court for reconsideration of an appropriate sentence. The court emphasised the need for proportionality in sentencing and the importance of considering the circumstances of the offender, including their efforts towards rehabilitation.

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

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Ratio Decidendi

Legal Principle Established

In all the circumstances it is clear that the section requires that the “circumstances which have arisen since the suspended sentence was imposed” are to be considered in light of the context set by the pre-existing circumstances.The Restoration of the Sentence The effect of the conduct of the appellant in leaving the CAAPS program without permission was that, within three weeks of her conditional release from prison, she had breached a fundamental condition applicable to her release. Shortly thereafter she breached another condition by failing to report to police as required. The explanation provided for her conduct was that she was placed under cultural and moral pressure to leave. It was submitted that she was being pressured by members of her extended family to provide money to them and she was unable to do so whilst at CAAPS. It was submitted that she left CAAPS in order to avoid the shame of not being able to comply with the demands of the members of her extended family. It is clear that her leaving the program was intended by her. She did not accidentally breach her conditions. It is also clear that she did not leave in direct defiance of the conditions of her release. She left because she felt under moral pressure to do so. That pressure is a matter that may be taken into account in considering an appropriate disposition: Wilson v Taylor (supra) at 9. Subsequent to her departure she remained out of trouble until she was arrested in relation to the breach. This was a period of some five and a half months. In that time she reduced her consumption of alcohol. The Court was informed that upon her re-arrest she expressed a desire to resume the rehabilitation course at CAAPS and further that CAAPS was willing to take her back. In the circumstances there is evidence that rehabilitation has progressed notwithstanding the breaks. The extent of that progress is to be assessed taking into account all of the circumstances of the offender. In this case the appellant is a 28 year old married Aboriginal woman who lived in an Aboriginal community and at the Bagot Community. She suffered from a serious alcohol problem. The fact that she remained out of trouble for the period from her departure, that she had reduced her alcohol consumption and that she had come to the conclusion that she wished to complete the CAAPS rehabilitation course are all signs of some (if small) progress towards rehabilitation. The effect of the order of his Worship was that the appellant was required to serve a period of imprisonment of 18 months (19 months if the period of one month already spent in prison is taken into account) because of the breach of these conditions. In our view, and in all of the circumstances, that was so disproportionate to the breach as to make the imposition of that period of imprisonment unjust in all of the circumstances. In our view there was a gross discrepancy between the imposition of the balance of the suspended sentence and the nature of the breach.