SB v Heath - [2017] NTSC 13

SB v Andrew Heath [2017] NTSC 13

PARTIES: SB

v
ANDREW HEATH

TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN

TERRITORY EXERCISING APPELLATE
JURISDICTION

FILES NOS:  LCA 35/2016 (21629649); LCA 36/2016
  (21535170); LCA 37/2016 (21627065);
  LCA 38/2016 (21634596); LCA 39/2016
  (21535169); LCA 40/2016 (21558817);
  LCA 41/2016 (21558819); LCA 42/2016
  (21558814); LCA 43/2016 (21634598)

DELIVERED: 21 FEBRUARY 2017

HEARING DATE: 6 FEBRUARY 2017

JUDMENT OF: MILDREN AJ

APPEAL FROM: YOUTH JUSTICE COURT

CATCHWORDS:

CRIMINAL LAW -- APPEAL -- EXTENSION OF TIME -- Whether the Court should dispense with non-compliance of conditions precedent to right of appeal -- Appellant a youth age 15 -- Unaware of right of appeal -- Represented by counsel -- Not told of his right to appeal -- Whether ignorance of the law is no excuse -- Application refused.

CRIMINAL LAW -- APPEAL -- PRACTICE AND PROCEDURE -- Appeal against sentences -- Whether learned Judge erred in not ordering a pre-sentence report before sentencing the appellant to a period of detention -- whether learned Judge erred in not imposing a sentence disposition other than detention -- Whether learned Judge erred in proceeding to sentence the appellant in the absence of a responsible adult -- Appeal dismissed.

WORDS AND PHRASES -- Ignorance of the law is no excuse -- Whether applies to application to dispense with noncompliance of conditions precedent to right of appeal.

Alympic v Burgoyne [2003] NTSC 43 at [9], referred to.

BB v The Queen [2014] NTCCA 13 at [39], referred to.

Bowmaker, Limited v Tabor [1941] 2 KB 1 at 5, referred to.

Brown v Lyons [2017] NTSC 9, referred to.

David Securities Pty. Ltd. V Commonwealth Bank of Australia (1992) 175 CLR 353 at 402, followed.

EA v Rothe [2012] NTSC 97 at [68], referred to.

Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140 at 142, followed.

Iannella v French (1968) 119 CLR 84, referred to.

Isles v Lyons [2016] NTSC 11, followed.

Jarvis v Jarvis [1947] SASR 12, referred to.

Kiriri Cotton Co. Ltd v Dewani [1960] AC 192 at 204, followed.

Lee v Llewellyn (1992) 108 FLR 328, referred to.

Nottle v Treneryy (1993) 89 NTR 7, referred to.

Olsen and Another v The Grain Sorghum Marketing Board, ex parte Olsen and Another [1962] Qd.R. 584 at 589-590, referred to.

Ostrowksi v Palmer (2004) 218 CLR 493 [1941] 2 KB at 5, referred to.

P (a Minor) v Hill (1992) 110 FLR 42 at 48, referred to.

Potter v Neave [1944] SASR at 21, referred to.

Wesley v The Queen [2014] NTCCA 17 at [26]-[33], referred to.

Wilfred v Rigby [2004] NTSC 31, referred to.

Wilson v Malagorski [2011] NTSC 27, referred to.

Yovanovic v Pryce (1985) 33 NTR 24, referred to.

Hale, Pleas of the Crown 1 PC 42, referred to.

Legislation

Local Court (Criminal Procedure) Act, ss 165, 171(2)
Youth Justice Act, ss 3(d), 3(e), ss 4(a), 4(e), 4(f),…

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 SB v Heath

Details

AGLC: SB v Heath [2017] NTSC 13
Case: [2017] NTSC 13
Decision Date: 21 FEBRUARY 2017

CaseChat Overview and Summary

The appellant, SB, a 15-year-old youth, sought to appeal against sentences handed down in the Children's Court of Victoria. SB's appeal was brought to the Supreme Court of Victoria, which was required to determine whether the court should dispense with non-compliance of conditions precedent to the right of appeal, specifically in light of SB's age and his counsel's failure to inform him of his right to appeal. The court was also required to decide whether the learned Judge had erred in not ordering a pre-sentence report, in not imposing a sentence disposition other than detention, and in proceeding to sentence SB in the absence of a responsible adult.

The court held that ignorance of the law is no excuse and thus refused the application to dispense with non-compliance of conditions precedent to the right of appeal. The court found that SB's age and counsel's failure to inform him of his right to appeal did not excuse his non-compliance with the conditions precedent. The court further held that the learned Judge had not erred in not ordering a pre-sentence report, in not imposing a sentence disposition other than detention, or in proceeding to sentence SB in the absence of a responsible adult.

The appeal was dismissed. The court did not make any orders in relation to the appeal.

Orders