Tomlins v Gwynne - [2002] NTSC 39

Tomlins v Gwynne [2002] NTSC 39
PARTIES:MARY KRISTY LEE CLAIRE TOMLINS

v
COLLEEN MARIE GWYNNE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 6/2002 9626884 & 9702422
DELIVERED:  19 June 2002
HEARING DATES:  12 April 2002
JUDGMENT OF:  THOMAS J
CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – sentencing – juvenile offender – whether sentence manifestly excessive – whether sufficient weight was given to the principle of rehabilitation and particular circumstances of the defendant – whether sufficient regard was given to the defendant’s previous good character – whether the particular circumstances of the defendant were considered in ordering restitution of monies – appeal dismissed.
Juvenile Justice Act 1999 (NT) s 53, s 55
Sentencing Act 1995 s 90(5)
Simmond v Mill (1986) 38 NTR 31; M v Waldron (1988) 56 NTR1, followed.
Arnold v Trenerry (1997) 118 NTR1; Janima v Edgington [1995] NTSC 36; Mawson v Nayda (1995) 5 NTLR 56; Cranssen v R (1936) 55 CLR 509; Raggett, Douglas & Miller v R (1990) 50 A Crim R 41, applied.
Strecker v Trenerry [1997] NTSC 6 & 7; E v SA Police (1996) 86 A Crim R 141, referred to.
REPRESENTATION:
Counsel:
Appellant:G. Bryant
Respondent:  G. Dooley
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200205
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Tomlins v Gwynne [2002] NTSC 39
No. JA 6/2002 (9626884, 9702422)

BETWEEN:
MARY KRISTY LEE CLAIRE TOMLINS

Appellant
AND:
COLLEEN MARIE GWYNNE

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 19 June 2002)

This is an appeal from a sentence imposed upon the appellant in the Juvenile Court at Darwin.
On 4 January 2002 the appellant entered a plea of guilty to the following three charges:
“1)     On the 8^th December 1996 at Darwin in the Northern Territory of Australia
1.      Did steal a bicycle, valued at $280 the property of Bonnie Nyari.
Contrary to Section 210 of the Criminal Code.
2)     On the 15^th January 1997 at Darwin in the Northern Territory of Australia
i)      Unlawfully entered a dwelling house namely 6 Bauer Crescent with intent to commit therein a crime, namely, stealing.
Contrary to s 213 of the Criminal Code.
ii)     did steal assorted clothing, makeup, audio tapes, bags, bottles, a crystal ball and a radio cassette player valued at $1850, the property of Sandra Kitchey.
Contrary to s 210 of the Criminal Code.”
The agreed facts with respect to the first charge are as follows (tp 3):
“…. at some time between 8.30 am and 12.30 pm on 8 December 1996 the defendant attended the bike racks of Moil School where she selected a man’s style mountain bike. She then took the bicycle by undoing a lock and chain that secured it in the racks. Later that evening the defendant in the company of…

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 Tomlins v Gwynne

Details

AGLC: Tomlins v Gwynne [2002] NTSC 39
Case: [2002] NTSC 39
Decision Date: 19 June 2002

CaseChat Overview and Summary

The case of Tomlins v Gwynne involved a dispute over sentencing in a criminal matter. The defendant, a juvenile, appealed against his sentence, arguing that it was manifestly excessive and that the court did not adequately consider the principles of rehabilitation, his good character, and the particular circumstances of the case in ordering restitution. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the sentence imposed was manifestly excessive, whether the court gave sufficient weight to the principle of rehabilitation and the particular circumstances of the defendant, whether the defendant's previous good character was adequately considered, and whether the court appropriately considered the particular circumstances of the defendant in ordering restitution of monies.

The court considered the appeal and found that the sentence was not manifestly excessive, as it took into account the seriousness of the offence and the need for general deterrence. The court also held that it had given sufficient weight to the principles of rehabilitation and the particular circumstances of the defendant, including his age, background, and prospects for rehabilitation. Furthermore, the court found that it had appropriately considered the defendant's previous good character in arriving at the sentence. Finally, the court held that it had considered the particular circumstances of the defendant in ordering restitution of monies, as it took into account the defendant's ability to pay and the need to make the victim whole.

The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of considering the principles of sentencing, including the need for general deterrence, rehabilitation, and the particular circumstances of the defendant, in arriving at an appropriate sentence.

Orders