The Queen v Tyday - [2006] NTSC 29

The Queen v Tyday [2006] NTSC 29

PARTIES: THE QUEEN

TYDAY, MARK THOMAS

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: Nos. SCC 20300981, 20300983, 20301263, 20301264, 20301266, 20301267, 20300982, 20219299 and 20301258

DELIVERED: 4 APRIL 2006

HEARING DATES: 30 MARCH 2006

JUDGMENT OF: ANGEL J

REPRESENTATION:

Counsel:
Applicant: R Coates
Respondent: P. Dwyer

Solicitors:
Applicant: Director of Public Prosecutions
Respondent: North Australian Aboriginal Justice Agency

Judgment category classification: B
Judgment ID Number: Ang200608
Number of pages: 8
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Tyday [2006] NTSC 29
Nos. SCC 20300981, 20300983, 20301263,
20301264, 20301266, 20301267, 20300982
20219299 and 20301258

BETWEEN:

THE QUEEN
Applicant

AND:

MARK THOMAS TYDAY
Respondent

CORAM: ANGEL J

REASONS FOR JUDGMENT

(Delivered 4 April 2006)

[1] This is an application by the Director of Public Prosecutions for an extension of time within which to re–open sentences of imprisonment pursuant to s 112 Sentencing Act (NT).

[2] On 4 August 2004 the prisoner pleaded guilty to six counts of aggravated unlawful entry of commercial premises at night, one count of attempted aggravated unlawful entry of commercial premises at night, four counts of stealing, 3 counts of unlawful use of motor vehicles and two counts of unlawful damage.

[3] On 6 August 2004 the prisoner was sentenced to imprisonment for a total of seven years with a non–parole period of three years and six months backdated to take account of time spent in custody.

[4] As I said in the course of passing sentence:
“In summary, between 23 November 2002 and 22 December 2002, the prisoner committed six aggravated unlawful entry of commercial premises at night, one attempted aggravated unlawful entry of commercial premises at night, four counts of stealing (a total of $64,455.80 worth of other people’s property), three counts of unlawful use of motor vehicles (causing in all $78,581.85 loss to others), and two counts of unlawful damage totalling $46,233.00.
In all, Tyday’s crimes of stealing, unlawful use of motor vehicles and unlawful damage, caused $189,270.65 direct loss to others. Of course there are consequential losses and inconvenience as well.”

[5] The offences for which the prisoner was sentenced were committed whilst he was subject to a parole order under the Parole of Prisoners Act (NT). For reasons unexplained neither counsel for the Crown nor counsel for the prisoner brought that fact to the Court’s attention at the time of sentencing. The prisoner had previously been sentenced to a term of four years and ten months in relation to a number of offences including 14 unlawful entries and 15 stealing counts. He was released from prison on parole on 21 August 2001. Two years and three months of the head sentence was unserved at the time of his release on parole.

[6] By reason of the convictions and sentence passed in respect of the 2002 offences the parole order was deemed to be revoked:…

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 Tyday

Details

AGLC: The Queen v Tyday [2006] NTSC 29
Case: [2006] NTSC 29
Decision Date: 4 APRIL 2006

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the case of The Queen v Tyday involved an application by the Director of Public Prosecutions for an extension of time to re-open sentences of imprisonment for Mark Thomas Tyday. The legal issues at hand revolved around the applicability of section 112 of the Sentencing Act (NT), which allows the court to re-open proceedings where a sentence is not in accordance with the law or where the court has failed to impose a sentence it legally should have imposed. Tyday had been sentenced to a total of seven years imprisonment with a non-parole period of three years and six months for various offences, including aggravated unlawful entry, theft, and unlawful use of motor vehicles. However, the court had not been aware at the time of sentencing that Tyday was subject to a parole order under the Parole of Prisoners Act (NT), which was revoked due to the new convictions. This oversight had a significant impact on the appropriate sentence, leading to the application for an extension of time to correct the sentence.

The court found that the application was warranted to do justice to the case and to correct the error in the original sentence. Section 112 of the Sentencing Act (NT) was interpreted broadly to allow for the re-opening of proceedings where the court's ignorance of a prisoner's status, such as being on parole, directly affects the appropriate sentence. The court agreed with the submissions that the original seven-year sentence needed to be adjusted to account for the unserved portion of the parole revocation sentence. After considering the gravity of the offending, Tyday's criminal history, and the nature of the offences, the court decided to re-sentence Tyday to a total of six years imprisonment, to be served cumulatively with the two years and three months unserved portion of the parole revocation sentence. The non-parole period was set at three years and six months, and the total effective sentence was backdated to account for time already spent in custody.

The court concluded that the extension of time was necessary and granted the application to re-open the proceedings. It set aside the original sentences and imposed new sentences, including the cumulative imprisonment terms and the non-parole period. This decision ensures that the sentence reflects the full legal consequences of Tyday's parole revocation and the cumulative nature of his sentences.

Orders