Warloo v Weisenekker - [2005] NTSC 42

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PARTIES: WARLOO, Kathy

WEISENEKKER. Peter

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: No JA 90 of 2004

DELIVERED: 5 August 2005

HEARING DATES: 16 February 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

MAGISTRATES – Appeal from Magistrate
CRIMINAL LAW – Property offences

Appeal against sentence – whether sentence was manifestly excessive – whether magistrate erred in making an order under section 122 Liquor Act – whether proper consideration was given to other sentencing options – whether due consideration was given to appellant’s circumstances and prospects of rehabilitation – weight given to prior criminal history – no striking disparity in sentencing – appeal dismissed

Liquor Act

R v Allison (1987) 49 NTR 38; Sam Freedy v Hatzimalis (unreported, Supreme Court NT, Gray A-J, 30 March 1998); Gumbinyarra v Teague (2003) 12 NTLR 226; Marika v Manley (1998) 144 FLR 404; Veen v The Queen [No2] (1988) 164 CLR 465; Williams v Marsh (1985) 38 SASR 313, applied

Rory v Bell (1992) 64 A Crim R 134, referred to

REPRESENTATION:

Counsel:
Plaintiff: S Musk
Defendant: N Browne

Solicitors:
Plaintiff: NAALAS
Defendant: DPP

Judgment category classification: B
Judgment ID Number: Sou 0508
Number of pages: 19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Warloo v Weisenekker [2005] NTSC 42
No. JA 90 of 2004

BETWEEN:

KATHY WARLOO
Plaintiff

AND:

PETER WEISENEKKER
Defendant

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 5 August 2005)

Introduction
[1] This is an appeal against a sentence pursuant to s 163 of the Justices Act (NT). On 12 August 2004 in the Court of Summary Jurisdiction the appellant pleaded guilty to three charges of damaging property contrary to s 251(1) of the Criminal Code. The maximum penalty for each offence is two years imprisonment.
[2] On 15 October 2004 Mr Gillies SM sentenced the appellant to six months and 23 days imprisonment to be suspended forthwith on conditions that for a period of six months the appellant accept directions from the Director of Correctional Services as to reporting, alcohol counselling and treatment and that the appellant undergo breath tests and urine tests as directed by the Director of Correctional Services. Pursuant to s 40(6) of the Sentencing Act, he specified a period of 12 months from 15 October 2004 during which the appellant was not to commit another offence punishable by imprisonment. With the consent of the appellant the learned magistrate also made an order pursuant to s 122 of the Liquor Act forbidding all persons for a period of 12 months to sell or supply liquor to the appellant and forbidding them to permit her to be on or at premises in respect of which a licence was in force that permits consumption of liquor on those premises. In addition to the sentence handed down the appellant was ordered to pay compensation…

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 Warloo v Weisenekker

Details

AGLC: Warloo v Weisenekker [2005] NTSC 042
Case: [2005] NTSC 42
Decision Date: 5 August 2005

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Kathy Warloo appealed against the sentence imposed on her by the Magistrate's Court. Warloo was sentenced to six months and 23 days imprisonment, suspended for a period of 12 months, and ordered to pay compensation. The appeal was based on the grounds that the sentence was manifestly excessive and that the magistrate erred in making an order under the Liquor Act. The court found that the sentence was not manifestly excessive and that the magistrate did not err in making the Liquor Act order. The court held that the magistrate properly considered the sentencing options, the appellant's circumstances, and her prospects of rehabilitation. The court also held that the Liquor Act order was appropriate and would assist in the appellant's rehabilitation. The appeal was dismissed.

The court considered the appellant's history of alcohol abuse, her previous attempts to overcome her problems with alcohol, and the escalating nature of her offending. The court found that the magistrate properly considered these issues and that a total ban on the appellant consuming alcohol was proving effective in overcoming her problems. The court also held that the appellant's criminal history was a proper matter to be taken into account in determining the sentence to be imposed, and that the magistrate did not give undue weight to the appellant's prior criminal history. The court further held that there was no striking disparity between the sentence imposed in this case and other cases, and that the sentence was not manifestly excessive. The appeal was dismissed.

Orders