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The Queen v Cumberland

The Queen v Cumberland

Case [2019] NTCCA 13 19 June 2019

Sentencing

Statutory Construction

Charge

Criminal Law

Statutory Interpretation

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CITATION:The Queen v Cumberland [2019] NTCCA 13
PARTIES:THE QUEEN

v
CUMBERLAND, Jesse

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the Supreme Court exercising Territory jurisdiction
FILE NO:FSC 2 of 2018 (21719767)
DELIVERED:  19 June 2019
HEARING DATE:  12 March 2019
JUDGMENT OF:  Grant CJ, Kelly, Barr, Hiley JJ and Riley AJ

CATCHWORDS:
CRIMINAL LAW – JUDGMENT AND PUNISHMENT – MINIMUM NON-PAROLE PERIODS
By virtue of s 130(1) of the Sentencing Act the 70% minimum non-parole period in the amended s 55 of the Sentencing Act does apply when a court is sentencing an offender for an offence committed before the amendment came into effect provided the offence for which the offender is being sentenced is a “specified offence” within the definition of that term in s 55 –
However, the references to sections of the Misuse of Drugs Act in s 55(b) of the Sentencing Act is a reference only to those sections in the Misuse of Drugs Act as amended by the Justice Legislation Amendment (Drug Offences) Act which amendments came into effect on 18 July 2016.
In circumstances where a court is imposing a total effective sentence for two or more offences, some of which are subject to the minimum non-parole period of 70% required by s 55 of the Sentencing Act and some of which are subject to the minimum non-parole period of 50% required by s 54 of the Sentencing Act, the requirement to fix a minimum non-parole period of not less than 70% of the sentence applies only to that part of the sentence which relates to a “specified offence” as defined in s 55 of the Sentencing Act.
Criminal Code 1983 (NT) s 14
Misuse of Drugs Act 1990 (NT) s 5, s 5A, s 5B, s 5C, s 6, s 6C, s 6D, s 6E, s 6G, s 7C, s 7D, s 8
Sentencing Act 1995 (NT) s 52, s 53, s 53A, s 54, s 55, s 55A, s 121, s 130
Beckwith v R (1976) 135 CLR 569, CEV v The Queen [2005] NTCCA 10, Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129, Emitja v The Queen [2016] NTCCA 4, FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, Inkamala v The Queen [2005] NTCCA 6, JL v The Queen [2019] NTCCA 7, Owners of the Ship, Shin Kobe Maru v Empire shipping Co Inc (1994) 181 CLR 404, R v Lavender (2005) 222 CLR 67, R v Sully [2012] SASCFC 9, R v Watkins [2013] SASCFC 150, Siganto v The Queen (1997) 141 FLR 73, The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285, The Queen v Hopkins [2008] NTSC 15, TRH v The Queen [2018] NTCCA 14, Weinstock v Beck (2013) ALR 1, Whitehurst v The Queen

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 Cumberland

Details

AGLC: The Queen v Cumberland [2019] NTCCA 13
Case: [2019] NTCCA 13
Decision Date: 19 June 2019

CaseChat Overview and Summary

The Queen, represented by the Crown, brought proceedings against Cumberland. The dispute concerned the application of a statutory amendment to the sentencing of an offender for an offence committed prior to the amendment's commencement. The matter was heard by the Supreme Court of New South Wales, comprising Grant CJ, Kelly, Barr, Hiley JJ, and Riley AJ.

The central legal issue before the Court was whether the amended provisions of section 55 of the *Sentencing Act*, which stipulated a 70% minimum non-parole period, applied to an offender sentenced for an offence committed before the amendment's commencement. This question hinged on the interpretation of section 130(1) of the *Sentencing Act* and the definition of a "specified offence" within section 55.

The Court reasoned that section 130(1) of the *Sentencing Act* expressly permitted the application of the amended section 55 to offences committed before the amendment's commencement, provided that the offence for which the offender was being sentenced qualified as a "specified offence" as defined in section 55. The Court concluded that the amended provisions did indeed apply in such circumstances, confirming the retrospective operation of the 70% minimum non-parole period for specified offences.

Orders