The Queen v Mungatopi - [2009] NTSC 58

The Queen v Mungatopi [2009] NTSC 58
PARTIES:THE QUEEN
v

MUNGATOPI, Gonzales

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:26 of 1990 (9003999)
DELIVERED:  30 October 2009
REASONS PUBLISHED:                 10 November 2009
HEARING DATES:  16 and 22 October 2009
JUDGMENT OF:  OLSSON AJ

CATCHWORDS:

Criminal law – Parole – Non Parole Period – Application to increase pursuant to Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) s 19.
Criminal law – “sexual offence” – for purposes of Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) s 19(3)(b) “sexual offence” includes an offence against Criminal Code Act 1984 (NT) s 192, as stated in Sentencing Act 1995 (NT) Schedule 3 – on evidence Crown proven beyond reasonable doubt that “act that caused the victims death was part of a course of conduct by the prisoner that included conduct before the victims death which would have constituted a sexual offence” – application allowed – non parole period increased to 25 years.
Criminal Code Act 1984 (NT) s 192(3)
Sentencing Act 1995 (NT) s 53A
Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) s 19(3)(b)
R v Ahwan (2005) 194 FLR 1; Beckwith v R (1976) 135 CLR 569; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed.
Bakewell v The Queen [No 3] (2008) 22 NTLR 174; R v Leach [2004] 14 NTLR 44; Ahwan v The Queen [2005] 17 NTLR 1, considered.
Repatriation Commission v Vietnam's Veterans Association of Australia NSW Branch Inc (2000) 48 NSWLR 548, applied.

REPRESENTATION:
Counsel:
Applicant:R Coates
Respondent:  J B Lawrence
Solicitors:
Applicant:Office of the Director of Public Prosecutions
Respondent:
Judgment category classification:   A
Judgment ID Number:  Ols0901
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Mungatopi [2009] NTSC 58

No 26 of 1990 (9003999)
BETWEEN:

THE QUEEN

Applicant

AND:

GONZALES MUNGATOPI

Respondent

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Published 10 November 2009)

Introduction

This was an application by the Director of Public Prosecutions ("the Director") pursuant to s 19 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 ("the Act") to revoke a non-parole period fixed by s 18 of the Act and fix a new non-parole period of 25 years in accordance with ss (3)(b) and 19(7) of that statute.
On 14 August 1990 the respondent Gonzales Mungatopi appeared before the Supreme Court of the Northern Territory at Darwin and pleaded not guilty to a charge that, on or about 1 November 1989 at Milikapati, he murdered Thecla Tipungwuti ("the victim").
The matter proceeded to trial in the Criminal Court. On 24 August 1990, by the unanimous verdict of a jury, the respondent was found guilty of the offence charged. A conviction was duly recorded and he was sentenced to life imprisonment. At that time, parole was not available to him under…

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 Mungatopi

Details

AGLC: The Queen v Mungatopi [2009] NTSC 58
Case: [2009] NTSC 58
Decision Date: 30 October 2009

CaseChat Overview and Summary

In the case of The Queen v Mungatopi, the Supreme Court of the Northern Territory was tasked with reviewing an application brought by the Director of Public Prosecutions under s 19 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) to increase the non-parole period for Gonzales Mungatopi, who was convicted of murdering Thecla Tipungwuti. The court had to determine whether the murder was committed in circumstances that warranted a longer non-parole period, specifically if the crime included conduct that would have constituted a sexual offence against the victim. The respondent's non-parole period was set to expire in 2009, but the passage of the 2008 Amendment to the Act necessitated the Director's application for an increased non-parole period if he believed that the respondent's offence involved aggravating circumstances as defined in the Act. Olsson AJ found that the evidence led at the trial established beyond reasonable doubt that the fatal act was part of a course of conduct that included conduct before the victim's death which would have constituted a sexual offence. Therefore, the non-parole period was increased from 20 years to 25 years.

Orders