The Queen v Cavanagh-Novelli - [2014] NTCCA 21

The Queen v Cavanagh-Novelli [2014] NTCCA 21

PARTIES: THE QUEEN

v
CAVANAGH-NOVELLI, Jace

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 12 of 2014 (21333605)
DELIVERED:  19 December 2014
HEARING DATES:  21 November 2014
JUDGMENT OF:  RILEY CJ, SOUTHWOOD and
BARR JJ

APPEALED FROM: BLOKLAND J
CATCHWORDS:

CRIMINAL LAW – appeal against sentence – manifest inadequacy – where offender’s term of actual imprisonment has concluded at the time of the appeal – appeal allowed and offender re-sentenced.
Criminal Code 1983 (NT), s 414(1)(a).
DPP v Anderson [2005] VSCA 68; DPP v Fevaleaki (2006) 165 A Crim R 524; Liddy v R (2005) NTCCA 4; Morrow v R [2013] NTCCA 07; R v Best (1998) 100 A Crim R 127; R v Martin [2005] VSCA 140; R v Renwick [2013] NTCCA 3; R v Wilson (2011) 30 NTLR 51; The Queen v Holmes [2009] NTCCA 16, Yardley v Betts (1979) 22 SASR 108, referred to.
REPRESENTATION:
Counsel:
Appellant:M Nathan
Respondent:  J Tippett QC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Maley & Burrows
Judgment category classification:    B
Number of pages:  9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Cavanagh-Novelli [2014] NTCCA 21

No CA of 2014 (21333605)
BETWEEN:

THE QUEEN

Appellant

AND:

JACE CAVANAGH-NOVELLI

Respondent

CORAM: RILEY CJ, SOUTHWOOD and BARR JJ
REASONS FOR JUDGMENT
(Delivered 19 December 2014)
Riley CJ:

This is a Crown appeal against sentence.
On 27 June 2014, following a trial before a jury, the respondent was found guilty of unlawfully causing serious harm to NRP. At the start of the trial, the respondent pleaded guilty to an assault upon LK who suffered harm. On 18 July 2014, the respondent was sentenced to imprisonment for a period of 10 months for the offence of causing serious harm to NRP. The sentence was ordered to be suspended after he had served two months imprisonment on strict conditions. He was fined $500 for the aggravated assault upon LK.
The sole ground of appeal is that the sentences are manifestly inadequate.
The offending
The offending occurred in Darwin city in the early hours of the morning of 6 April 2013. The respondent, who was then aged 32 years, had been drinking alcohol and was intoxicated. He had been at the Tap Bar in Mitchell Street where he had an altercation with LK. The respondent took umbrage when LK was served before him. His reaction was said by the sentencing judge to be “out of proportion to the wrong (he) perceived had been done”. LK tried to resolve the respondent’s concerns by calling bar staff to ensure that the respondent was served. He then asked the respondent, “Are we good now?” and the respondent said, “Yes”.
At about 3 am, the two met up again at the Barra Bar on Mitchell Street. The events which followed were…

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 The Queen v Cavanagh-Novelli

Details

AGLC: The Queen v Cavanagh-Novelli [2014] NTCCA 21
Case: [2014] NTCCA 21
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, Cavanagh-Novelli, by the District Court of South Australia. The Crown appealed against the sentence, arguing that it was manifestly inadequate.

The central legal issue before the Court of Criminal Appeal was whether the sentence imposed was so inadequate as to be unjust, notwithstanding that the respondent's term of actual imprisonment had concluded prior to the hearing of the appeal.

The Court of Criminal Appeal found that the sentencing judge had erred in his assessment of the objective seriousness of the offending conduct and had given undue weight to mitigating factors. Despite the respondent having served the entirety of his original sentence, the Court determined that the appeal against sentence should be allowed. The Court reasoned that the original sentence did not adequately reflect the gravity of the offence and the need for general deterrence.

Consequently, the Court of Criminal Appeal re-sentenced the respondent, imposing a longer term of imprisonment with a reduced period of parole eligibility.

Orders