The Queen v Moreen

[2001] NTSC 29

The Queen v Moreen [2001] NTSC 29

PARTIES:THE QUEEN

v

MOREEN, Jeffery

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:20012617

DELIVERED:  27 April 2001

HEARING DATES:  20 April 2001

JUDGMENT OF:  MARTIN CJ

CATCHWORDS:

CRIMINAL LAW
Particular offences – offences against the person

CRIMINAL LAW

Jurisdiction, practice and procedure – pleas – jurisdiction to hear and determine a crime in a summary way.

Justices Act 1928 (NT) s 131A, s 132, s133 & s 134
Sentencing Act 1995 (NT), s 122
Criminal Code 1983 (NT), s 188(2)

REPRESENTATION:

Counsel:

Appellant:A Fraser

Respondent:  P Collins

Solicitors:

Appellant:DPP

Respondent:  NAALAS

Judgment category classification:      B

Judgment ID Number:  mar0113

Number of pages:  4

Mar0113

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

The Queen v Moreen [2001] NTSC 29
No. 20012617

BETWEEN:

THE QUEEN

Appellant

AND:

JEFFERY MOREEN

Respondent

CORAM:    MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 27 April 2001)

1. JefferyMoreen appeared before this Court on 20 April when he was charged upon indictment for an unlawful assault with circumstances of aggravation pursuant to s 188 (2) of the Criminal Code 1983 (NT).  The maximum penalty which might be imposed for that offence is five years imprisonment.

1. He was arraigned and pleaded guilty.  The Court was informed that he had been found guilty by the Court of Summary Jurisdiction, but that the learned Magistrate constituting that Court had considered that the matter was so serious that he ought to be dealt with in this jurisdiction.

2. It being common ground between the parties that that was the appropriate way to proceed, I did not then intervene beyond questioning whether Mr Moreen, having pleaded guilty in the Court of Summary Jurisdiction, there was any need for the presentation of an indictment here.  I was assured that that was the practice.

3. The matter has troubled me and I have had occasion to look at the legislation. An offence such as this may be dealt with summarily, see s 131A Justices Act 1928 (NT). That enabling provision is not subject to the many conditions and procedural matters outlined in respect of minor indictable offences being dealt with under s 121A and s 122A of the Act. Mr Moreen was simply before that Court, the charge was read, he pleaded guilty, facts were put by the prosecutor before his Worship and those facts being admitted, his Worship said that he found the offence proved (transcript p 4). That Court then embarked upon the sentencing process. A pre-sentence report was ordered. The power to make such an order only arises where the court is able to sentence “an offender” which by definition means a person found guilty of an offence (Criminal Code, s 3).

4. At transcript pp 15, 16 and p 17, there was discussion about his Worship’s concern that the prospective penalty might be around two years or more, and it is clear that his Worship was intending that the matter be brought within the jurisdiction of this Court.  He enquired as to whether he should vacate the plea, and was informed by the prosecutor that that was not the case and that what his Worship should do was commit Mr Moreen for sentence under s 134 of the Justices Act.  His Worship proceeded to purport to commit Mr Moreen to be sentenced in this Court.

5. I consider that the proceedings in this Court were void. There is provided in s 131A(2) that a court shall not hear and determine in a summary way the charge under s 188(2) of the Criminal Code if it is of the opinion that the charge should be prosecuted on indictment. The prosecution took place before his Worship. He proceeded to hear and determine the matter by making the finding of guilt.

6. Section 132 of the Justices Act provides that such a finding has the same effect as a finding of guilt upon an indictment and in s 133 it is provided that a defendant who is found guilty under that division of the Justices Act, dealing with minor offences, “shall be released from all further or other criminal proceedings for the same cause.”

7. His Worship may have had in mind the provisions of Division 3 of the Justices Act, including s 134, in relation to committal for sentence, but the procedure adopted before his Worship was not there envisaged.

8. I propose to decline jurisdiction and leave the matter with his Worship so that the sentencing process can be completed before him. In doing so, I would point to s 122 of the Sentencing Act 1995 (NT). It provides that where the Court of Summary Jurisdiction has jurisdiction to hear and determine a crime in a summary way the court shall not impose on the person found guilty a sentence of imprisonment of more than five years or a fine greater than 250 penalty units.” (My recollection is that the limitation on the power to impose a sentence of imprisonment in those circumstances was previously two years, as his Worship thought to be the case).

9. I rule that this Court has no jurisdiction because of the operation of s 133 of the Justices Act and the matter properly remains to be completed before his Worship.

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