Walker v The Queen - [2001] NTSC 69

IN THE MATTER OF A REFERENCE PURSUANT TO S.21 OF THE SUPREME COURT
ACT RE; WALKER v R [2001] NTSC 69
IN THE MATTER OF A REFERENCE
PURSUANT TO S.21 OF THE
SUPREME COURT ACT RE:
GLEN JOHN WALKER
Applicant
v
THE QUEEN
Respondent

TITLE OF COURT: FULL COURT OF THE SUPREME
COURT OF THE NORTHERN
TERRITORY OF AUSTRALIA
JURISDICTION: FULL COURT OF THE SUPREME
COURT EXERCISING TERRITORY
JURISDICTION UPON REFERENCE
PURSUANT TO S21 OF THE
SUPREME COURT ACT
FILE NO: 9702435
DELIVERED: 10 MAY 2001
HEARING DATES: 10 MAY 2001
JUDGMENT OF: MILDREN ACJ, BAILEY& RILEY JJ
REPRESENTATION:
Counsel:

Applicant: Mr McDonald and Ms Cox
Respondent: Mr Wild, QC
Solicitors:

Applicant: Northern Territory Legal Aid
Commission
Respondent: Director of Public Prosecutions
Judgment category classification: B

Judgment ID Number: mil01245
Number of pages: 4
IN THE FULL COURT OF
THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA AT DARWIN
No. 9702435
IN THE MATTER OF A REFERENCE PURSUANT TO S.21 OF THE SUPREME
COURT ACT RE: WALKER v R [2001] NTSC 69
IN THE MATTER OF A
REFERENCE PURSUANT TO S.21
OF THE SUPREME COURT ACT RE:
GLEN JOHN WALKER
Applicant
v
THE QUEEN
Respondent

CORAM: MILDREN ACJ, BAILEY & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 10 May 2001)
MILDREN ACJ:

This is a matter which has been referred to the Full Court pursuant to s21 of
the Supreme Court Act by Angel J. The question which is raised by the
reference is whether under s43(5)(c) or (d) of the Sentencing Act, when a
court restores a sentence or part of a sentence which is for a period of

twelve months or longer and orders the offender to serve it, the court has the
power to fix a non-parole period pursuant to s53(1) of the Act. In my
opinion, that question must be answered "Yes".

The relevant provisions to be considered are s113, s53(1), s43 and s59 of the
Sentencing Act. It is also relevant to consider s7 which deals with
sentencing orders. I do not think it is necessary to go into much detail.
Precisely the same question as we have been asked to determine has been
answered affirmatively by the Court of Appeal of Victoria in the case of R v
Hatch (1998) 3 VR 693; in (1997) 95 A Crim R 46; where Callaway JA with
whom Batt JA agreed, considered the relevant provisions of the Victorian
Sentencing Act 1991. The comparable provisions of the Victorian Act are in
pari materia with the relevant provisions of the Northern Territory Act. In
Hatch, their Honours had no doubt, after considering the construction given
to the various sections, that when a court restored a sentence or part of a
sentence and ordered the offender to serve it, whenever the sentence was for
twelve months or longer, the court had the power to fix a non-parole period.
We agree with their Honours and note that the same argument was accepted
by Kearney J in…

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 Walker v The Queen

Details

AGLC: Walker v The Queen [2001] NTSC 69
Case: [2001] NTSC 69
Decision Date: 10 MAY 2001

CaseChat Overview and Summary

The Full Court of the Supreme Court of the Northern Territory of Australia considered a reference under s.21 of the Supreme Court Act concerning the case of Glen John Walker v The Queen. The matter involved an appeal by Walker against the sentence imposed on him, specifically focusing on whether the court had the authority to set a non-parole period when restoring a sentence of twelve months or longer, as provided under sections 43(5)(c) and (d) of the Sentencing Act. The Court was required to decide whether such restoration of a sentence, coupled with an order for the offender to serve it, allowed the court to fix a non-parole period as per section 53(1) of the Act.

The Full Court, comprising Mildren ACJ, Bailey, and Riley JJ, concluded that the court indeed had the power to set a non-parole period when restoring a sentence of twelve months or longer. This conclusion was reached by interpreting the relevant sections of the Sentencing Act and finding them to be consistent with the corresponding provisions in the Victorian Sentencing Act, as affirmed in the case of R v Hatch. The reasoning was that when a court restores a sentence and orders the offender to serve it, the court effectively makes a new sentencing order, thereby having the authority to fix a non-parole period. The Court also noted that the language used in sections 43(5)(c) and (d) of the Act aligns with the drafting intent behind section 53(1), which addresses the fixing of non-parole periods.

Following this reasoning, the Full Court remitted the matter back to Angel J, the original sentencing judge, to consider whether a non-parole period should be set in the specific circumstances of Walker's case. The Court's formal order was to allow Angel J to further consider the matter and decide on the appropriate non-parole period, if any, for the sentence imposed on Walker.

Orders