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Van Toorenburg v Westphal

Van Toorenburg v Westphal

Case [2011] NTSC 31 20 April 2011

Appeal

Sentencing

Plea of Guilty

Principle of Totality

Criminal Law

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Van Toorenburg v Westphal [2011] NTSC 31
PARTIES: VAN TOORENBURG, Jason
v

WESTPHAL, Lindsay

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 4 of 2011 (21100692)
JA 5 of 2011 (21101658)

DELIVERED:   20 April 2011
HEARING DATES:   31 March 2011
JUDGMENT OF:   BLOKLAND J
APPEAL FROM:   Mr Neill SM
CATCHWORDS:

Criminal law – Appeal against sentence – three appeal grounds – manifestly excessive – failure to apply principle of totality – failure to give sufficient weight to plea – presumption that there is no error in sentencing – appellant must demonstrate that sentencer erred – strongly preferable for sentencing court to indicate how the plea of guilty was taken into account – ultimate sentence must reflect the gravity of the total criminal conduct – no error found for Magistrates failure to order concurrency – must be shown sentence is not merely excessive but that it is manifestly so – Appeal dismissed.
Criminal Code (NT) s 251 (1)
Sentencing Act (NT) ss 55(j), 88(c)

Hampton v The Queen [2008] NTCCA 5; House v King (1936) 55 CLR 449; Cransson v The King (1936) 55 CLR 509; The Queen v Tait [1979] FLR 386 at 388; applied

Damaso v The Queen (2002) 130 A Crim R 206; Kelly v The Queen (2002) 10 NTLR 39; Bond v Burgoyne [2005] NTSC 51; Veen v The Queen (No 2) 1987-1988 164 CLR 46; Pappin v The Queen (2005) NTCCA 2; followed
Janima v Edgington No 36 of 1995; referred to
REPRESENTATION:
Counsel:
Appellant:   R Anderson
Respondent:   C Roberts
Solicitors:
Appellant:   Northern Territory Legal Aid Commission
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:   BLO 1103
Number of pages:   16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Van Toorenburg v Westphal [2011] NTSC 31
No JA 4 of 2011 (21100692)
JA 5 of 2011 (21101658)

BETWEEN:

JASON VAN TOORENBURG

Appellant

AND:

LINDSAY WESTPHAL

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 20 April 2011)
Introduction

This is an Appeal against sentences imposed on 20 January 2011 in the Court of Summary Jurisdiction at Alice Springs. The Appellant was dealt with for two counts of unlawfully damage property contrary to s 251 Criminal Code (NT). He committed these offences on two separate occasions at two separate premises on the 8^th and 14^th January 2011 respectively. A plea of guilty was entered to both counts in the Court of Summary Jurisdiction at Alice Springs on 20 January 2011. The learned Magistrate sentenced the Appellant to three months imprisonment on each count. The sentences were ordered to be served cumulatively and to commence on 14 January 2011, the date the Appellant was taken into custody for the second offence. An order of restitution in the sum of $555.00 was made in relation to the offence committed on 8 January 2011 (‘the first offence’). The total…

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 Van Toorenburg v Westphal

Details

AGLC: Van Toorenburg v Westphal [2011] NTSC 31
Case: [2011] NTSC 31
Decision Date: 20/04/2011

CaseChat Overview and Summary

Jason Van Toorenburg appealed against his sentences imposed by the Court of Summary Jurisdiction for two counts of unlawfully damaging property. The sentences, each amounting to three months imprisonment, were to be served cumulatively, resulting in a total effective term of six months imprisonment. The appeal was based on three grounds: the sentences were manifestly excessive, the principle of totality was not applied, and insufficient weight was given to the plea of guilty. The appeal was dismissed.

The court addressed the third ground first, concerning the weight given to the plea of guilty. The sentencing reasons did not explicitly mention the discount for the plea, but the learned Magistrate did not regard the plea as early, particularly in relation to the first offence. The Appellant had left the Court premises on the day of his first appearance without formally appearing. Although it was preferable for the sentencing court to indicate how the plea of guilty was taken into account, the circumstances did not disclose an error. The Appellant's expressions of remorse and willingness to facilitate the course of justice were considered, but the Appellant's actions after the first offence and before the second offence justified a minimal discount.

Regarding the second ground, the learned Magistrate did not explicitly mention the principle of totality when imposing cumulative sentences. However, the court believed the learned Magistrate considered the gravity of the total criminal conduct and ordered a total term of six months imprisonment without concurrency. The circumstances of the two offences did not lead the court to conclude the learned Magistrate was in error.

Finally, the court concluded the sentences were not manifestly excessive. While the length of the sentences was towards the top of the range for this type of offending, they were within the discretionary range. The learned Magistrate carefully considered the gravity of the offending, the Appellant's criminal antecedents, and the subjective considerations of the Appellant. The court found that the Appellant's personal situation was deeply troubling, but there was no tangible plan presented that could justify a non-custodial sentence or a significant reduction of the terms by way of suspended sentences.

Orders