The Queen v Nadich

[2012] NTCCA 5

The Queen v Nadich [2012] NTCCA 5

PARTIES:  THE QUEEN

v

NADICH, Reuben

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 11 of 2011 (21018605)

DELIVERED:  6 March 2012

JUDGMENT OF:  RILEY CJ, SOUTHWOOD and BLOKLAND JJ

APPEALED FROM:  KELLY J

CATCHWORDS:

APPLICATION TO REOPEN PROCEEDING – s 112(3)(b) Sentencing Act – cumulation – application dismissed

Sentencing Act s 43(6), s 112(3)(b)

REPRESENTATION:

Counsel:

Appellant:M McColm

Respondent:  I Read

Solicitors:

Appellant:Office of Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    C

Judgment ID Number:  Sou1203

Number of pages:  2

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Nadich [2012] NTCCA 5

No. CA 11 of 2011 (21018605)

BETWEEN:

THE QUEEN

Appellant

AND:

REUBEN NADICH

Respondent

CORAM:     RILEY CJ, SOUTHWOOD and BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 6 March 2012)

THE COURT:

1. The appellant has applied to reopen the proceeding under s 112(3)(b) of the Sentencing Act on the ground that the Court of Criminal Appeal failed to impose a sentence that the Court legally should have imposed when it re-sentenced the respondent.  The basis of the application is that the Court proceeded on an erroneous basis when it re-sentenced the respondent because it wrongly found that the Crown had failed to make a submission to the sentencing Judge that the revoked suspended sentence of imprisonment for the drug offences should be served wholly cumulatively on the sentence of imprisonment that was imposed on the respondent for the crime of intend to cause serious harm.

2. The application is dismissed. The partial cumulation of the sentences of imprisonment that were imposed on the respondent by the Court of Criminal Appeal was determined in the light of the presumption of concurrency created by s 43(6) of the Sentencing Act, the priniciple of totality and the significantly increased sentence of imprisonment that was imposed on the respondent by the Court of Criminal Appeal for the crime of intend to cause serious harm.

3. As to re-sentencing the respondent Southwood J (with whom Riley CJ agreed) stated:

   In my opinion, the sentence of 10 years imprisonment with a non-parole period of seven years is justly proportionate to the whole of the respondent’s criminal conduct.

4. In addition, Blokland J observed:

   In any event her Honour outlined valid reasons why she considered partial accumulation to be appropriate in all of the circumstances.

5. The appeal was allowed on ground 1 of the Notice of Appeal.  The issue raised by the appellant is limited to the reasons for decision of Southwood J (with whom Riley CJ agreed) to dismiss ground 2 of the appeal.  It did not go to the re-sentencing of the respondent. 

------------------------------