Skeen v Byrne - [2017] NTSC 93

CITATION:Skeen v Byrne [2017] NTSC 93
PARTIES:SKEEN, Nicholas
v

BYRNE, Nicholas O’Shea

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 50 of 2017 (21659226)
DELIVERED ON:  19 December 2017
DELIVERED AT:  DARWIN
HEARING DATES:  22 November 2017
JUDGMENT OF:  BLOKLAND J
APPEAL FROM:  THE LOCAL COURT
CATCHWORDS:

CRIMINAL LAW – SENTENCE – PRACTICE and PROCEDURE – Procedural fairness – Lack of interpreter during supervision assessment – No breach of procedural fairness – Appeal dismissed
CRIMINAL LAW – SENTENCE – BREACH OF PROCEDURAL FAIRNESS – lack of interpreter during supervision assessment – Procedure adopted by sentencing judge as a result of lack of interpreter – Unsuitable for other reasons – No breach of procedural fairness – Appeal dismissed

Churnside v The State of Western Australia [2016] WASCA 146; G v Bourne (1991) 105 FLR 52; O’Keefe v Tankard [1989] VR 371; Pantorno v R (1989) 166 CR 466; R v Wang; R v Roizman [2013] NSWCCA 2; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR; Weir v R [2011] NSWCCA 123; Yinarrarra v Heath [2017] NTSC 54, referred to

REPRESENTATION:
Counsel:
Appellant:Ms B.Wild
Respondent:  Mr J.Bortoli
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Murphy and Associates
Judgment category classification:    C
Judgment ID Number:  BLO 1709
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Skeen v Byrne [2017] NTSC 93

No. 21659226
BETWEEN:

NICHOLAS SKEEN

Appellant

AND:

NICHOLAS O’SHEA BYRNE

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 19 December 2017)
Introduction and background

This is an appeal against a sentence imposed by the Local Court on the grounds of lack of procedural fairness during the sentencing proceedings.
The appellant pleaded guilty to one count of aggravated assault. The circumstances of aggravation were that the victim (the appellant’s mother) suffered harm; that she was female; and that she was unable to defend herself. The third circumstance of aggravation referred to the victim being in a seated position and that the appellant was standing. After some argument, the sentencing judge found the third circumstance of aggravation had been made out.[1]
The facts constituting the offending were that after the appellant and victim had become intoxicated, the appellant kicked the victim to her head with his left foot. The kick caused her to fall backwards onto the pavement. She suffered a laceration to her bottom lip and was taken to the Mataranka Health Clinic for treatment.[2]
The plea hearing took place in the Local Court sitting at Mataranka. The appellant was sentenced to four months imprisonment. After hearing submissions, the learned sentencing judge rejected the submission made on the appellant’s behalf that “exceptional circumstances” were made out in the context of the applicable mandatory term of imprisonment of three months. The Court also rejected a submission that a portion of the sentence be suspended.[3]
The Notice of Appeal…

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 Skeen v Byrne

Details

AGLC: Skeen v Byrne [2017] NTSC 93
Case: [2017] NTSC 93
Decision Date: 19 December 2017

CaseChat Overview and Summary

The case of Skeen v Byrne involved an appeal by the respondent, Byrne, against a decision made during his sentencing process. Byrne was found guilty of several criminal offences and was subject to a supervision assessment. The primary issue in the appeal was whether the lack of an interpreter during the supervision assessment resulted in a breach of procedural fairness. The appeal was heard in the court of appeal, which had to determine whether the absence of an interpreter during the assessment constituted a breach of procedural fairness and if the appeal should be dismissed.

The court was required to decide if the lack of an interpreter during the supervision assessment constituted a breach of procedural fairness. Additionally, the court needed to consider whether the procedure adopted by the sentencing judge, due to the lack of an interpreter, was unsuitable and whether this led to a breach of procedural fairness. The court had to evaluate the appropriateness of the procedure followed by the sentencing judge and determine if the absence of an interpreter or the adopted procedure constituted a breach of procedural fairness.

The court found that the absence of an interpreter during the supervision assessment did not constitute a breach of procedural fairness. The court also determined that the procedure adopted by the sentencing judge, as a result of the lack of an interpreter, was unsuitable for other reasons. However, the court concluded that these factors did not breach procedural fairness. Consequently, the appeal was dismissed by the court of appeal. The decision confirmed that the lack of an interpreter and the adopted procedure did not breach procedural fairness, and the appeal was rightly dismissed.

The court did not make any further orders beyond dismissing the appeal. The decision reinforced the importance of procedural fairness in criminal sentencing processes but confirmed that, in this instance, the absence of an interpreter and the adopted procedure did not constitute a breach. The ruling serves as a reminder of the principles of procedural fairness in criminal proceedings and the specific circumstances under which such principles may be upheld or breached.

Orders