Turner v The King - [2023] NTCCA 1

CITATION:Turner v The King [2023] NTCCA 1
PARTIES:TURNER, Brendan James
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 7 of 2021 (21751258)
DELIVERED:  7 February 2023
HEARING DATE:  6 February 2023
JUDGMENT OF:  Grant CJ, Blokland and Brownhill JJ

CATCHWORDS:
CRIME – Appeals – Appeal against the sentence – Manifest excess – Misapplication of principle – Taking into account irrelevant consideration
Appeal against sentence on grounds: (a) that sentence manifestly excessive; (b) that sentence breached ‘ceiling principle’; and (c) that sentencing judge erred by taking into account matters not agreed or proved – Head sentence not plainly and obviously excessive – No breach of ‘ceiling principle’ because sentence originally imposed manifestly inadequate and formulated by reference to totality principle – Error taking into account matters not agreed or proved beyond reasonable doubt – Appeal allowed on ground 3 and appellant resentenced.
Criminal Code (NT), s 411
Fillipou v The Queen (2015) 89 ALJR 776, Johnson v The Queen [2012] NTCCA 14, Lowndes v The Queen (1999) 195 CLR 665, Markarian v The Queen (2005) 228 CLR 357, R v Bedford (1986) 5 NSWLR 711, R v Gilmore (1979) 1 A Crim R 416, R v Horstmann [2010] SASC 103, RH McL v The Queen (2000) 203 CLR 452, referred to.
REPRESENTATION:
Counsel:
Appellant:M Thomas
Respondent:  M Aust
Solicitors:
Appellant:Darwin Family Law
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:           B
Number of pages:  13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Turner v The King [2023] NTCCA 1

No. CA 7 of 2021 (21751258)

BETWEEN:

BRENDAN JAMES TURNER
Appellant

AND:

THE KING
Respondent

CORAM: GRANT CJ, BLOKLAND and BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 7 February 2023)
THE COURT:

This is an appeal against sentence on three grounds. Those grounds are: (a) that the sentence was manifestly excessive; (b) that the sentence breached what has been described as the ‘ceiling principle’; and/or (c) that the sentencing judge erred by taking into account matters asserted in the Victim Impact Statement which had not been agreed or proved.
Procedural history
On 29 March 2019, the appellant was found guilty of 12 offences following a trial by jury. Those offences comprised four counts of sexual intercourse without consent, seven counts of aggravated assault and one count of issuing a threat to kill. The trial judge imposed a total head sentence of seven years and six months subject to a non-parole period of four years and 11 months.
After some delay, the appellant lodged an appeal against those convictions. The Crown conceded the appeal on all counts, and on 26 August 2021 the Court of Criminal Appeal quashed the convictions and ordered a retrial. The appellant was released from prison on that date, by which time he had served two years, four months and 29 days referable to…

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 Turner v The King

Details

AGLC: Turner v The King [2023] NTCCA 1
Case: [2023] NTCCA 1
Decision Date: 7 February 2023

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Turner, by a sentencing judge. The grounds of appeal were that the sentence was manifestly excessive, that it breached the 'ceiling principle', and that the sentencing judge had erred by taking into account matters not agreed or proved.

The Court of Appeal was required to determine whether the head sentence was plainly and obviously excessive, whether the 'ceiling principle' had been breached, and whether the sentencing judge had impermissibly taken into account unproven or unagreed matters when imposing the sentence.

The Court found that the head sentence was not plainly and obviously excessive and that there was no breach of the 'ceiling principle' as the original sentence had been manifestly inadequate and the current sentence was formulated by reference to the totality principle. However, the Court upheld the ground of appeal concerning the sentencing judge's error in taking into account matters not agreed or proved beyond reasonable doubt. Consequently, the appeal was allowed on this ground, and the appellant was resentenced.

Orders