Scrymgour v Moore - [2006] NTSC 98

Scrymgour v Moore [2006] NTSC 98

PARTIES: SCRYMGOUR, Richard Maurice

v
MOORE, David Steven

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   JA 44 of 2006 (20614427)
DELIVERED:   18 December 2006
HEARING DATE:   8 December 2006
JUDGMENT OF:   OLSSON AJ
CATCHWORDS:

CRIMINAL LAW – Declaratory Act – Intention of amending legislation – Applied prospectively or retrospectively – Section 48 Justice Legislation Amendment Act (No 2) 2006 – Section 78BA Sentencing Act – Section 136 Youth Justice Act
R v Dursley (1832) 3 B & Ad 465;
Fisher v Hebburn Ltd (1960) 105 CLR 188;
Re Gardiner [1938] SASR 6;
Liddy v The Queen [2005] NTCCA 4
Maxwell v Murphy (1957) 96 CLR 261
Cf Smith v Callander [1901] AC 297;
Young v Adams [1898] AC 469;
Pearce and Geddes "Statutory Interpretation in Australia" (6^th Ed)
REPRESENTATION:
Counsel:
Appellant:   J C A Tippett QC
Respondent:   T McNamee
Solicitors:
Appellant:   North Australian Aboriginal Justice Association
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   Ols0614
Number of pages:   13

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Scrymgour v Moore [2006] NTSC 98

No. JA 44 of 2006 (20614427)

IN THE MATTER OF the Criminal Code and the Sentencing Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:
SCRYMGOUR, Richard Maurice

Appellant
AND:
MOORE, David Steven

Respondent

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 18 December 2006)
Introduction

The appellant pleaded guilty to a charge of unlawful assault on Stephen Summers contrary to s 188(1) of the Criminal Code. The maximum penalty for that offence is imprisonment for one year. On 25 August 2006 he was convicted and sentenced to imprisonment for two days.
He originally appealed against that sentence on the following bases:
(1)The sentence was manifestly excessive in all the circumstances.
(2)The learned magistrate did not place enough emphasis on principles of rehabilitation.
(3)The learned magistrate placed excessive emphasis on general deterrence and punishment.
On the hearing of the appeal the appellant sought and obtained leave to amend the notice of appeal to include an additional ground averring that the learned magistrate erred in law in applying the provisions of s 78BA of the Sentencing Act in sentencing the appellant to an actual period of imprisonment. That ground ultimately became the key focus of the appeal.
The narrative facts
The circumstances of the offending were the subject of agreement. On 27 May 2006 the appellant attended at the Vic Hotel where he consumed a quantity of alcohol and was asked to leave the premises. He then went to Rorke’s Drift where he consumed further alcohol and then moved on to the Lost Arc Nightclub where he continued to consume alcohol. At about 2.30 am he was escorted from the Lost Arc Nightclub by security officers who informed him that he…

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 Scrymgour v Moore

Details

AGLC: Scrymgour v Moore [2006] NTSC 98
Case: [2006] NTSC 98
Decision Date: 18 December 2006

CaseChat Overview and Summary

The appeal in Scrymgour v Moore was brought before the court by the appellant, who challenged the sentencing decision made by the learned magistrate. The central issue in this appeal was whether the magistrate correctly applied section 78BA of the Sentencing Act when determining the appellant's sentence. This provision allows for a reduction in sentence for offenders who show remorse and have otherwise demonstrated rehabilitation efforts. The appellant argued that the magistrate had erred in law by not adequately considering these mitigating factors in his sentencing decision.

The court needed to decide whether the magistrate properly assessed the appellant's remorse and rehabilitation efforts as outlined in the submissions. Additionally, the court had to determine if the magistrate's failure to consider these factors constituted a legal error that warranted the intervention of the appellate court. The appellant contended that his expressed remorse, the support from his family, and his efforts to address drug and alcohol problems and anger management were not sufficiently considered by the magistrate. The prosecution, on the other hand, argued that the magistrate had appropriately weighed these factors and that the sentence was justified given the nature of the offence.

In delivering the judgment, the court examined the magistrate's approach to sentencing and the evidence presented regarding the appellant's remorse and rehabilitation efforts. The court found that the magistrate had indeed considered these factors but had ultimately decided that they did not warrant a significant reduction in the sentence. The court held that the magistrate's decision to not reduce the sentence was within the bounds of judicial discretion and did not constitute a legal error. The court concluded that the appellant's criminal history and the seriousness of the offence justified the sentence imposed. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

On the hearing of the appeal the appellant sought and obtained leave to amend the notice of appeal to include an additional ground averring that the learned magistrate erred in law in applying the provisions of s 78BA of the Sentencing Act in sentencing the appellant to an actual period of imprisonment. That ground ultimately became the key focus of the appeal.The narrative facts The circumstances of the offending were the subject of agreement. On 27 May 2006 the appellant attended at the Vic Hotel where he consumed a quantity of alcohol and was asked to leave the premises. He then went to Rorke’s Drift where he consumed further alcohol and then moved on to the Lost Arc Nightclub where he continued to consume alcohol. At about 2.30 am he was escorted from the Lost Arc Nightclub by security officers who informed him that he had previously been banned from entering the nightclub. He walked to the main entrance and began verbally abusing his victim who was a security officer. He then punched the security officer once to the head. He continued to behave in an aggressive manner and had to be restrained by his victim and other security staff. The victim received a small scratch to his nose and soreness to the area of the blow. The appellant was arrested. On the following day he was interviewed and made no admissions as to the incident. When asked what happened he replied: “I’ll get to that when I go to court”. When asked why he punched his victim he said: “I don’t reckon I punched him in the head”.Sentencing submissions The appellant pleaded guilty. In submissions on his behalf the court was informed that he had recently been in a motor vehicle accident and had suffered a laceration to his head. He had not sought medical attention. He was also upset because of a break-up with his former partner with whom he had four children. The court was informed that he claimed to have no knowledge of being banned from the Lost Arc Nightclub and became upset and aggressive when told of the banning. The appellant had members of his family in court to support him. The court was informed that he had a good work history. He completed year 10 at school and started year 11. He then did an agriculture course and a coxswain’s course in order to obtain a licence to drive boats of up to 24 metres. He had worked on his family’s cattle station and on a barramundi farm for some five years as a technician. Following this incident he attended at Amity House where he began addressing his drug and alcohol problems and undertook an anger management course. At the time of sentencing he was back at work. The court was provided with four references from people who supported him. The appellant had a criminal history. When he was a juvenile he was dealt with on two occasions for assault. The first related to an incident in July 1999 and in that regard he was released on a good behaviour bond without proceeding to conviction. The second was in 1998 when he was placed on community service for 56 hours and again without proceeding to conviction. He had no offences of violence since 1999. However, in 2003 he was convicted of cannabis charges and sentenced to imprisonment for four months, suspended immediately.The approach of the learned magistrate

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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