Tickner v Eaton - [2009] NTSC 56

Tickner v Eaton [2009] NTSC 56
PARTIES:RONNIE EVAN TICKNER

v
DONALD EATON

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:No 1 of 2009 (20833536)
DELIVERED:  29 October 2009
HEARING DATES:  16 October 2009
JUDGMENT OF:  MILDREN J
APPEAL FROM:  YOUTH JUSTICE COURT
CATCHWORDS:
Interpretation Act, s 38DA
Justices Act, s 22A, s 55
Penalty Units Act 1999, s 3(1)
Penalty Units Act 2009, s 9(1)
Summary Offences Act, s 47AA, s 47AA(1), s 47AA(2)(b), s 47AA(4)
Youth Justice Act 2005, s 53(1), s 144
R v De Simoni (1981) 147 CLR 383; followed
Reedy v O’Sullivan [1953] SASR 114; referred to
REPRESENTATION:
Counsel:
Appellant:T Collins
Respondent:  C Roberts
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   C
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Tickner v Eaton [2009] NTSC 56

No 1 of 2009 (20833536)
BETWEEN:

RONNIE EVAN TICKNER

Appellant

AND:

DONALD EATON

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 29 October 2009)

This is an appeal against sentence pursuant to s 144 of the Youth Justice Act 2005.
The appellant and four other juveniles were each charged with various offences arising out of a melee that occurred on Friday 14 November 2008 in a park situated between Plumbago Crescent and Beefwood Court, Alice Springs. The appellant pleaded guilty to an offence against s 47AA(1) of the Summary Offences Act. The statement of the offence contained in the charge originally provided that (deleting formal parts) the accused:
Did engage in conduct involving a violent act, namely in company committed assault and threw projectiles with intent to cause harm, and such conduct caused other persons in the vicinity to be fearful for their safety contrary to s 47AA(1) of the Summary Offences Act.
Prior to the plea, the prosecution accepted an amendment to the charge which then read:
Did engage in conduct involving a violent act, namely the throwing of projectiles whilst being reckless as to whether the conduct involves a violent act and would have that result and that such conduct caused other persons in the vicinity to be fearful for their safety.
The charge as originally formulated and as reformulated does not comply with ordinary criminal pleading rules.
Section 53(1) of the Youth Justice Act provides that unless the Act makes specific provision in relation to proceedings, orders or convictions, the Justices Act applies as if the Youth Justice Court were the Court of Summary Jurisdiction established by that Act.
Section 55 of the Justices Act provides:
In any complaint and in any proceedings thereon the description of any offence in the words of the Special Act or other document creating the offence, or in similar words, shall be sufficient in law.
Section 47AA of the Summary Offences Act provides as follows:
47AA Violent disorder
(1) A person is guilty…

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 Tickner v Eaton

Details

AGLC: Tickner v Eaton [2009] NTSC 56
Case: [2009] NTSC 56
Decision Date: 29 October 2009

CaseChat Overview and Summary

In the matter of Tickner v Eaton, the appellant, a 16-year-old male, has appealed against the sentence imposed by the Youth Justice Court. The appellant, along with several co-offenders, was involved in a violent assault on two victims in Alice Springs. The Crown argued that the appellant played an active role in the assault, throwing rocks and a wheelie bin at the victims, despite his counsel's submission that his involvement was limited and only began after the first victim had armed himself with a metal pole. The Youth Justice Court found the appellant guilty and sentenced him to a three-month period of detention, suspended for two years, with various conditions attached.

The appellant’s grounds of appeal primarily centred on the excessiveness of the sentence, the failure to consider alternative sentencing options, and the disregard of certain legal principles and parity. The appellant argued that the sentence was disproportionate given his limited involvement in the assault and his previous non-violent criminal history. Additionally, he contended that the Youth Justice Court had not adequately considered the principles of the Youth Justice Act and the appropriate sentencing considerations for youth offenders.

The Court of Appeal found merit in the appellant’s arguments. It held that while the appellant’s role in the assault was serious, it was less significant than that of the principal offenders. The Court also noted that the appellant had no prior convictions involving violence and had not committed any offence other than breaches of bonds since he was 13 years old. Considering these factors, the Court deemed the three-month detention sentence manifestly excessive and disproportionate. The appeal was allowed, and the sentence was set aside, leading to the necessity for resentencing.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal as set out in the Notice of Appeal are as follows:1.That the sentence imposed by the learned Stipendiary Magistrate was in all the circumstances manifestly excessive.2. The learned Magistrate erred by failing to consider sentencing options other than a period of detention.3. That the learned Stipendiary Magistrate failed to have due regard to the general principles of the Youth Justice act as outlined in PART 1-Preliminary Matters, Division1- General Matters; point 4 Principles and the sentencing principles and considerations to be applied to youth offenders as outlined in Section 81 of the Youth Justice Act.4. That the learned Stipendiary Magistrate erred in characterising the appellant as one of the principal offenders in this matter.5. That the learned Stipendiary Magistrate erred in not giving sufficient weight to the appropriate application of parity.6. That the learned Stipendiary Magistrate gave too much weight to the issue of general deterrence when sentencing the appellant.The Crown Facts The facts as alleged by the Crown at the sentencing hearing before the learned Magistrate were as follows:ECF is a 15 year old Aboriginal male who resides in Alice Springs with his mother. He is currently attending school in the Alice Springs area.MC is a 14 year old Aboriginal male who resides in Alice Springs with his parents. He is currently attending school in the Alice Springs area.[The appellant] is a 15 year old Aboriginal male who resides in Alice Springs with his parents. He is currently unemployed and no longer attends school.CF is a 15 year old Aboriginal male who resides in Alice Springs with his parent. He is currently attending school in the Alice Springs area.The facts of the matter are that on Friday 14 November 2008 the offenders and numerous other alleged co-offenders were in a park that is situated between Plumbago Crescent and Beefwood Court, Alice Springs. Some witnesses have estimated that 20 and 30 people were in the vicinity, but it is not known how many offenders took part in the incident.The following facts relate to offenders that are known to the Crown and were arrested in relation to these offences. The Crown does not know the identity of a considerable number of alleged co-offenders who took part in this incident.At around 11pm ECF approached Victim 1 and started swearing at him, and saying “Come on, come on”. ECF then took up a fighting stance and attempted to punch [Victim 1] twice but missed. ECF was then punched by [Victim 1], knocking him to the ground.ECF then followed [Victim 1] who had walked away into Beefwood Park. CF continued to swear at [Victim 1]. ECF struck [Victim 1] with a clenched fist to the right side of the face which caused instant pain. He again attempted to fight him by swinging a number of punches, but failed to connect.[Vitim 1] walked off towards his residence and a short time later ECF and numerous co-offenders commenced running at him. [Victim 1] ran into his residence and picked up a metal pole for protection.The sequence of events that followed is not entirely clear but it is alleged that as part of the melee that Co-offenders MC, BT, and [the appellant] caught up with [Victim 1] and MC then struck [Victim 1] three times to the left side of the face with a clenched fist. It is alleged that a co-offender BT punched [Victim 1] with a closed fist to the face.Co-offenders (CF, BT, MC, [the appellant], and numerous unidentified offenders) all picked up rocks, bricks, sticks and garbage bins that were located in the area and commenced throwing them towards [Victim 1] and MC then threw a wheelie bin at [Victim 1].Victim 2 had heard the commotion from inside his resident and exited onto Beefwood Court. He was then struck to the back of his head with a cement block which caused him to fall to the ground. [Victim 2] was then kicked to the face by an unknown offender, causing his head to jolt back. [Victim 2] got up and chased after the offenders, and caught up with ECF getting him in a headlock and falling to the ground. The alleged co-offender HM [who is a person currently going through diversion] ran over towards [Victim 2]. It is alleged that co-offender HM and two other alleged offenders ran at and kicked [Victim 2] to the left side of the face whilst he was on the ground and not in a position to defend himself.MC at a later stage kicked [Victim 2] to the body with a number of other unidentified co-offenders joining in.ECF then left the area with co-offenders when police and ambulance arrived. Both victims had to be conveyed to the Alice Springs Hospital by ambulance due to injuries received by the assaults.On Thursday 18 December 2008 ECF was arrested and conveyed to the Alice Springs Police Station. ECF participated in an electronic record of interview where he stated that he had a fight with [Victim 1] and chased him with other youths but denied throwing any items. ECF was later charged with his involvement in the matter.On Wednesday 19 November 2008 MC was arrested and conveyed to Alice Springs Police Station. He participated in an electronic record of interview where he made ‘no comment’. He was later charged with involvement in the matter.On Wednesday 3 December 2008 [the appellant] attended the Alice Springs Police Station with his father and surrendered himself to police. He was arrested and participated in an electronic record of interview. He stated he was in the area and saw kids throwing rocks and bins at [Victim 1] but he didn’t get involved. He then exercised his right to silence and made no further comment. He was later charged with involvement in this matter.On Tuesday 2 December 2008 CF was arrested and conveyed to the Alice Springs Police Station. He participated in an electronic record of interview where he stated ‘no comment’ for all questions. He was later charged with his involvement in this matter.As a result of the assault [Victim 1] was flown to Darwin as he had suffered the following injuries:·Fractured left side of his skull requiring surgery 11 x screws placed in his forehead)·Fractured left eye socket·A laceration to his right leg·Soreness to his jaw·Bruising and swelling around his face and head.As a result of the assault [Victim 2] suffered the following injuries:·Bruised left eye·Laceration above the left eye·Large lump to the base of his skull·Large lump on his upper back·General soreness around the body.At no time did either victim give permission for any of the offenders to assault him in any way.The injury (fractured skull) to [Victim 1} was caused by a brick being thrown at him and striking him to the forehead. The Crown is not able to establish at this time who threw the brick which caused that injury.The offenders caused fear and concern to neighbours in the area.The Submissions in the Youth Justice Court

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The report also dealt with the persistent failure of the appellant to comply with various Court orders relating to supervision, community work orders and the like in the past.The Decision of the Youth Justice Court At the time of sentencing, the appellant had turned 16 and had been on bail for a period of seven months. The appellant’s counsel indicated to the Court that the appellant did not think there would be any use in engaging with the Department of Corrections at this stage and that he did not want to talk to Corrections in relation to his matter. Subsequently, the appellant’s counsel received instructions over the lunch hour that he would agree to be supervised by Corrections and to comply with conditions. So far as the appellant was concerned, the learned Magistrate only said this:In relation to [the appellant], he is also charged with the less serious charge, which is count 3 on his information or the charge sheet in relation to him, however, he did take part in an active way in a very violent serious of offences. His part was quite serious. He is someone who has a long history of offending; he has been sentenced to detention before. It is the fact that his offending in the past has not been violent related that I am not sentencing today to an immediate period of detention (emphasis mine). His Honour then found him guilty in relation to the count, convicted him and ordered him to serve a period of detention of three months suspended forthwith. He specified an operational period of two years from the date of sentence. As to the conditions, he ordered: that he was to be supervised by the Director of Correctional Services for 12 months; that he was not to consume alcohol or illicit substances whilst supervised; and he was not to associate with CF, MC or ECF. In this case, the appellant’s counsel had submitted to the learned Magistrate that the appellant only got involved after Victim 1 had returned armed with a pole. Prior to that he was not involved at all and there is no evidence that he was involved in any way after Victim 1 had been assaulted. Furthermore, the suggestion that the appellant “did take part in an active way in a very violent series of offences” is apt to mislead. The appellant had not pleaded guilty to the offences of aggravated assault on either Victim 1 or Victim 2. The maximum penalty for those offences is imprisonment for five years. It would not be open to punish the appellant as a participant in that offending.[2] As to his prior convictions, it is to be noted that there were no prior convictions involving violence and he had not committed any offence other than breaches of bonds and the like since he was 13 years of age. At the time of sentence, he was 16 years of age.The Appeal is Allowed The main difficulty for the learned Magistrate was that although the appellant’s role was much less than some of the others who were involved, his previous record, and in this respect his recent record, indicated that he was not interested in a disposition which would involve supervision or complying with conditions until the very last minute. Nevertheless, I consider that a head sentence of three months detention, having regard to his limited role, previous history and the sentences imposed on the principal offenders, is manifestly excessive and so out of proportion to the sentences imposed on the other co offenders as to offend the parity principle. I would therefore allow the appeal and set aside the sentence imposed by the learned Magistrate.Resentencing

Ratio Decidendi

Legal Principle Established

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