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Taylor v Malagorski

Taylor v Malagorski

Case [2011] NTSC 98 29 November 2011

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Taylor v Malogorski [2011] NTSC 98
PARTIES: TAYLOR, Darcy Christopher
v

MALOGORSKI, Mark Anthony

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 20 of 2011 (21122732)
DELIVERED:   29 November 2011
HEARING DATE:   14 November 2011
JUDGMENT OF:   BARR J
APPEAL FROM:   CAVENAGH SM
CATCHWORDS:

APPEAL – Appeal against sentence – manifest excess – reduction of sentence for plea of guilty – whether discount awarded was within the learned Magistrate’s sentencing discretion – whether discount awarded resulted in a substantial miscarriage of justice.
APPEAL – Appeal against sentence – manifest excess – non-parole period – whether learned Magistrate was in error in determination of non-parole period.
APPEAL – Appeal against sentence – suspended sentence – rehabilitation – whether learned Magistrate was in error by not partially suspending sentence.
Justices Act s 177(2)(f)
Sentencing Act s 54(1), s 103, s 105

Clavell v Burgoyne [1003] NTSC 29; Kumantjara v Harris (1992) 109 FLR 400; Lo Castro v R [2011 NTCCA 1; Maynard v O’Brien (1991) 105 FLR 63; R v Wilson [2011] NTCCA 9; Sultan v Svikart (1989) 96 FLR 457; Wiltshire v Mafi (2010) WASCA 111, followed
Bugmy v R (1990) 169 CLR 525; Deakin v R (1984) 58 ALJR 367, 11 A Crim R 88; Grivell v The Queen and Mackley v The Queen (2008) 184 A Crim R 375; House v R (1936) 55 CLR 399, considered
REPRESENTATION:
Counsel:
Appellant:   R Wild QC
Respondent:   C Dixon
Solicitors:
Appellant:   North Australian Aboriginal Justice Agency
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   Bar1113
Number of pages:   13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Taylor v Malogorski [2011] NTSC 98

No. JA 20 of 2011 (21122732)
BETWEEN:

DARCY CHRISTOPHER TAYLOR

Appellant:

AND:

MARK ANTHONY MALOGORSKI

Respondent:

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 29 November 2011)
Appeal against Severity of Sentence

The appellant and the victim had been in an on-again/off-again relationship for many years. They had commenced their relationship as teenagers. They had two small children. The relationship deteriorated over time, and on 27 May 2010 the appellant assaulted the victim. The appellant at that time was just 22 years old. He was later convicted of aggravated assault and released on an 18-month good behaviour bond. For the period 28 May 2010 to 27 May 2011 a domestic and family order was in place restraining the appellant from approaching, contacting or being in the company of the victim. The appellant engaged in conduct in contravention of that order on 2 November 2010, 25 January 2011 and on 17 February 2011. The less than serious nature of those contraventions is indicated by the fact that two of them were dealt with by a fine of $100 and the third by a fine of $300.
In the afternoon of 12 July 2011, the appellant went to…

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 Taylor v Malagorski

Details

AGLC: Taylor v Malogorski [2011] NTSC 98
Case: [2011] NTSC 98
Decision Date: 29/11/2011

CaseChat Overview and Summary

The appellant, Taylor, appealed against a sentence imposed by the Magistrates' Court. Taylor had been convicted of serious criminal offences and the sentence included a term of imprisonment with a non-parole period. The primary grounds of appeal were the perceived manifest excess of the sentence and the non-parole period, as well as the failure to partially suspend the sentence. The Court of Appeal was tasked with determining whether the sentence imposed was excessive, whether the discount for a plea of guilty was appropriately applied, and whether the non-parole period was correctly determined.

The legal issues before the Court of Appeal centred on the principles of sentencing and the appropriate application of discounts for pleas of guilty. The Court had to consider whether the sentence imposed was manifestly excessive and whether the learned Magistrate erred in determining the non-parole period. Additionally, the Court needed to assess whether the Magistrate was in error by not partially suspending the sentence, thereby considering the appellant's prospects for rehabilitation.

The Court of Appeal examined the sentencing principles and the Magistrate's application of the discount for a plea of guilty. The Court concluded that the sentence was not manifestly excessive and that the Magistrate had correctly applied the discount, taking into account the nature and circumstances of the offences. Regarding the non-parole period, the Court found that the Magistrate had exercised their discretion appropriately. The Court also determined that the Magistrate did not err in not partially suspending the sentence, as the evidence did not sufficiently support a finding that the appellant had a reasonable prospect of rehabilitation. The appeal was dismissed.

No further orders were made by the Court of Appeal. The original sentence, including the term of imprisonment and the non-parole period, was upheld. The Court of Appeal found no basis to interfere with the Magistrate's exercise of sentencing discretion or to alter the sentence in any way.

Orders