Steven Shane Daly v Adrian Marshall - [2004] NTSC 43

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PARTIES: STEVEN SHANE DALY

ADRIAN MARSHALL

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: JA 11/04 (20209370)

DELIVERED: 3 September 2004

HEARING DATES: 20 August 2004

JUDGMENT OF: THOMAS J

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: N Miles
Respondent: M Hunter

Solicitors:
Appellant: Katherine Regional Aboriginal Legal Aid
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: tho200411
Number of pages: 13

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

Daly v Marshall [2004] NTSC 43
No. JA 11/04 (20209370

BETWEEN:

STEVEN SHANE DALY
Appellant

AND:

ADRIAN MARSHALL
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 3 September 2004)

[1] This is an appeal from a sentence imposed on the appellant in the Court of Summary Jurisdiction on 20 February 2004. On that date, the learned stipendiary magistrate fully restored a suspended sentence of six months imprisonment which, by virtue of s 59 of the Sentencing Act, was not concurrent with a sentence of imprisonment imposed in the Supreme Court. On 17 October 2003, the appellant was convicted in the Supreme Court following a plea of guilty to an offence of attempted arson. The appellant was convicted and sentenced to two years and three months imprisonment with a non parole period of 14 months, backdated to 13 June 2003.
[2] The appellant does not complain that it was unjust to fully restore the six months suspended sentence. The essence of the appeal is that on the submission of Ms Miles, counsel for the appellant, the learned stipendiary magistrate wrongly concluded that he could not make the restored part of the sentence of six months imprisonment wholly or partly concurrent with the 14 months non parole period of the sentence imposed in the Supreme Court on 17 October 2003. It is the submission by counsel for the appellant that the learned stipendiary magistrate, having concluded that pursuant to s 59 of the Sentencing Act the sentence could not be concurrent, failed to turn his mind to the provisions of s 43(6) and (7) of the Sentencing Act and consider the reasons which would justify making the restored sentence wholly or partly concurrent with the non parole period the appellant was serving for attempted arson.
[3] The relevant provisions of the Sentencing Act are s 43(6), s 43(7) and s 59:
“43. Breach of order suspending sentence
….
(6) Where a court orders an offender to serve a term of imprisonment that had been held in suspense, the term shall, unless the court otherwise orders, be served –
(a) immediately; and
(b) concurrently with any other term of imprisonment previously imposed on the offender by that or any other court.
(7) A court shall make an order under subsection (5)(c) unless it is of the opinion that it would be unjust to do so in…

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 Steven Shane Daly v Adrian Marshall

Details

AGLC: Steven Shane Daly v Adrian Marshall [2004] NTSC 043
Case: [2004] NTSC 43
Decision Date: 03/09/2004

CaseChat Overview and Summary

The appeal before the Supreme Court of the Northern Territory involved Steven Shane Daly, the appellant, who sought to challenge the sentence imposed on him by the Court of Summary Jurisdiction. Daly had previously been convicted of attempted arson and other related offences, and his appeal was against the order restoring a term of imprisonment held in suspense. The central issue was whether the magistrate correctly exercised his discretion in deciding not to make the restored sentence concurrent with the non-parole period imposed by the Supreme Court.

The court reviewed the relevant provisions of the Sentencing Act, specifically sections 43(6), 43(7), and 59. The court found that while the magistrate had correctly referred to section 59 in deciding not to make the sentences concurrent, he had also considered the options under sections 43(6) and 43(7). The court concluded that the magistrate's decision was deliberate and not an oversight, as the appellant's counsel suggested. Furthermore, the court found that the magistrate adequately considered the circumstances surrounding the breach of the suspended sentence and did not err in his assessment of the totality of the sentence imposed.

The appeal was dismissed, and the sentence confirmed. The court held that the magistrate's decision to restore the suspended sentence and not make it concurrent with the non-parole period was within his sentencing discretion, and the sentence was not manifestly excessive.

Orders