Legal Research
Cases
TM v The Queen

TM v The Queen

Case [2017] NTCCA 3 26 May 2017

No judgment structure available for this case.

Type to search within this case.

CITATION:TM v The Queen [2017] NTCCA 3
PARTIES:TM

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA 7 of 2016 (21436343)
DELIVERED:  26 May 2017
HEARING DATES:  9 February 2017
JUDGMENT OF:  GRANT CJ, SOUTHWOOD and RILEY JJ
APPEALED FROM:  KELLY J

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT

Whether sentence was manifestly excessive having regard to the circumstances of the offending and the appellant – whether wrongly characterised as adult offending – whether failure to treat rehabilitation of a youthful offender as the paramount consideration – whether primacy erroneously given to deterrence, denunciation and punishment – whether purpose of rehabilitation and other subjective circumstances considered only in relation to when the sentence was to be suspended and not in fixing the head sentence – whether difference between the head sentence of four years and the requirement that the offender only serve three months produced a risk of unintended consequence and indicated sentencing error – appeal dismissed.

Youth Justice Act (NT) s 4(a), s 81(3)

Bukulaptji v The Queen (2009) 24 NTLR 210, Dinsdale v The Queen (2000) 202 CLR 321, DPP v Lawrence (2004) 10 VR 125, Emitja v The Queen [2016] NTCCA 4, Markarian v The Queen (2005) 228 CLR 357, Nancarrow v The Queen [2010] VSCA 300, R v Bloomfield [1999] NTCCA 137, R v Goodwin [2003] NTCCA 9, R v Mills [1998] 4 VR 235, R v Nichols (1991) 57 A Crim R 391, Yovanovic v Pryce (1985) 33 NTR 24, referred to.
Fox & Freiberg's sentencing: state and federal law in Victoria (Third Edition), Law Book Company, 2014.
REPRESENTATION:
Counsel:
Appellant:P Bellach
RespondentD Dalrymple
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
RespondentDirector of Public Prosecutions
Judgment category classification: A
Number of pages: 18

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

TM v The Queen [2017] NTCCA 3
No. CA 7 of 2016 (21436343)
BETWEEN:
TM
Appellant

AND:
THE QUEEN
Respondent

CORAM:GRANT CJ, SOUTHWOOD and RILEY JJ
REASONS FOR JUDGMENT
(Delivered 26 May 2017)
THE COURT:

[1]Following a trial the appellant was found guilty by the jury of the offence of robbery with circumstances of aggravation that: the offence was committed in company; the victim suffered harm; and the victim was a female. The maximum penalty for the offence is imprisonment for life. The appellant was subsequently convicted of the offence and sentenced to imprisonment for four years suspended after he had served three months on various conditions of supervision. An operational period of four years was set.
[2]The appellant appealed against the sentence on the basis that it was manifestly excessive and crushing in all the circumstances.
[3]At the conclusion of the hearing the Court announced that the appeal was dismissed and advised that reasons for decision would be published. These are the reasons for decision.

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 TM v The Queen

Details

AGLC: TM v The Queen [2017] NTCCA 3
Case: [2017] NTCCA 3
Decision Date: 26 May 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of TM, a youthful offender, by the Supreme Court of Victoria. The appellant argued that the sentence imposed was manifestly excessive, given the circumstances of the offending and TM's status as a young person.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in characterising the offending as adult offending, whether insufficient weight was given to the paramount consideration of rehabilitation for a youthful offender, and whether undue primacy was given to deterrence, denunciation, and punishment. The appellant also contended that the purpose of rehabilitation and other subjective circumstances were improperly considered only in relation to the suspension of the sentence, rather than in fixing the head sentence itself. Furthermore, the appellant argued that the significant difference between the four-year head sentence and the three-month period of actual imprisonment risked unintended consequences and indicated sentencing error.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's approach. The Court affirmed that while rehabilitation is a crucial consideration for youthful offenders, it does not necessarily displace the need for punishment, deterrence, and denunciation, particularly where the offending is serious. The sentencing judge was found to have properly balanced these competing considerations, and the distinction between the head sentence and the period of actual imprisonment was not of itself indicative of error.

Orders