Westphal v Abbott and Abbott - [2013] NTSC 69

Westphal v Abbott & Abbott [2013] NTSC 69
PARTIES:WESTPHAL, Lindsay

v
ABBOTT, Barry Junior
AND
ABBOTT, Valerie Anne

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILES NO:JA 21 of 2012 (21134239)

AND
JA 22 of 2012 (21134242)

DELIVERED:  29 October 2013
HEARING DATE:  5 March 2013
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  J M R NEILL SM
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:N Kumar
Respondent:  R Goldflam
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:   B
Judgment ID Number:  Sou1311
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Westphall v Abbott and Abbott [2013] NTSC 69

No. JA 21 & 22 of 2013 (21134239) & (21134242)
BETWEEN:

LINDSAY WESTPHAL

Appellant/Cross Respondent

AND:

BARRY SHANE ABBOTT JUNIOR

AND

VALERIE ANNE ABBOTT

Respondents/Cross Appellants

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 29 October 2013)
Introduction

These proceedings involve two crown appeals against sentence, two cross-appeals against conviction and a cross-appeal against sentence.
On 7 December 2012, following pleas of guilty to all counts, Barry Shane Abbott Junior[1] was found guilty by the Court of Summary Jurisdiction of nine counts of deprivation of liberty[2] and two counts failure to supply the necessaries of life.[3] For the nine counts of deprivation of liberty he was ordered to be released without conviction. For the two counts of failure to supply the necessaries of life he was fined an aggregate sum of $1000 without conviction and ordered to pay two victims levies of $40.00 each.
On 7 December 2012, following pleas of guilty to all counts, Valerie Anne Abbott,[4] was found guilty by the Court of Summary Jurisdiction of nine counts of deprivation of liberty and two counts failure to supply the necessaries of life. For the nine counts of deprivation of liberty she was ordered to be released without conviction. She was convicted of the two counts of failure to supply the necessaries of life and sentenced to a total sentence of four months imprisonment which was suspended at the rising of the court. An operational period of 12 months from 7 December 2012 was specified.
The maximum sentence for each of the offences was imprisonment for seven years.
The appellant has appealed against the sentences imposed on Barry Abbott and Valerie Abbott for the nine counts of deprivation of liberty and against the sentence imposed on Barry Abbott for the two counts of failure to provide the necessaries of life on the basis that the sentences were manifestly inadequate as the sentencing magistrate failed to convict both of them of each of these counts.
Cross-appeal against convictions and sentence
Both Barry Abbott and Valerie Abbott have cross-appealed against their convictions for the nine counts of deprivation of liberty on the basis that the sentencing magistrate erred in ruling on 6 November 2012 that s 27(p) of the Criminal Code (NT) was not an available defence to a…

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 Westphal v Abbott and Abbott

Details

AGLC: Westphal v Abbott & Abbott [2013] NTSC 69
Case: [2013] NTSC 69
Decision Date: 29 October 2013

CaseChat Overview and Summary

The case of Westphal v Abbott and Abbott involved Valerie and Barry Abbott, who were employees of the Ilpurla Aboriginal Corporation, which provided a residential rehabilitation facility and programs for youths. The Abbotts were charged with multiple offences, including deprivation of liberty and failure to supply the necessaries of life, in relation to their treatment of residents at the facility in September 2011. Valerie Abbott cross-appealed against the sentences imposed for the failure to supply the necessaries of life charges, arguing they were manifestly inadequate. The primary legal issues the court had to decide included whether the sentences imposed for the deprivation of liberty charges were manifestly inadequate, and whether Valerie Abbott's sentences for failure to supply the necessaries of life were appropriate.

The court found that the prosecution's appeal against the sentences for deprivation of liberty charges was dismissed as the sentences were not manifestly inadequate. The court acknowledged that while the offences were serious and involved a breach of trust, they were an overreaction to the circumstances faced by the Abbotts. The court emphasised that the offences were of relatively short duration and occurred in a remote location with limited staff. The court also noted that no force or violence was used, and the victims were released without harm. Regarding the cross-appeal, the court accepted Valerie Abbott's argument that her sentences for failure to supply the necessaries of life were inadequate and re-sentenced her to a wholly suspended sentence of two weeks imprisonment with an operational period of 12 months.

In conclusion, the prosecution's appeal against the sentences for the deprivation of liberty charges was dismissed, while the cross-appeal against the sentences for failure to supply the necessaries of life was allowed. The court emphasised the importance of general deterrence and the need to make it clear that the community does not approve of such conduct. The cross-appeals against conviction were dismissed. The final orders of the court were that the prosecution appeals against the sentences imposed on the appellants were dismissed, Valerie Abbott's cross-appeal against the sentences for failure to supply the necessaries of life was allowed and she was re-sentenced, and the cross-appeals against conviction were dismissed.

Orders

Orders of the court

1. The prosecution appeals against the sentences imposed on the appellants are dismissed.

2. The cross-appeal against the sentences imposed on Valerie Abbott for the crimes of failure to provide the necessaries of life are allowed. She is re-sentenced to a wholly suspended sentence of two weeks imprisonment with an operational period of 12 months commencing on 7 December 2012.

3. The cross-appeals against conviction are dismissed.

Background

Background to the litigation

Valerie Abbott has also cross-appealed against the sentences imposed on her for the two counts of failure to supply the necessaries of life.The Crown Facts The following facts were admitted by Barry Abbott and Valerie Abbott. In September 2011, Michael Turner was 15 years of age, Paul Parker was 13 years of age, Walter Ahwon was 16 years of age, Daniel Wingo was 16 years of age, Daniel Blow was 16 years of age, Leon Patrick was 15 years of age, Nathan Tancred was 16 years of age, Charleston Willalang was 15 years of age, Clifford Joe was 21 years of age and Arthur Ninnal was 28 years of age. Each of them is a victim of the offences committed by Barry Abbott and Valerie Abbott. In September 2011, Barry Abbott and Valerie Abbott were employed by the Ilpurla Aboriginal Corporation.[5] Valerie Abbott was employed full time as an Administration Manager. Barry Abbott was employed full time as a Senior Alcohol and Other Drugs Counsellor. The corporation was funded by Commonwealth and Territory agencies to provide a residential rehabilitation facility and programs for youths referred by the Youth Justice Court, Court of Summary Jurisdiction, Central Australian Youth Link-up Service, Alcohol and Other Drugs Services of Central Australia, other agencies in the Northern Territory and individual family members. The residential rehabilitation facility and the rehabilitation programs were originally established by Mr Barry Abbott senior. Barry Abbott and Valerie Abbott have also been significantly involved in the work of the corporation. The rehabilitation programs provided by the corporation have been of enormous value to many young people in Central Australia. Between 13 and 16 September 2011 the victims were residents of the corporation’s facility at Ilpurla and were participating in rehabilitation programs. The corporation had responsibility for the daily care and control of the victims. Between 13 and 14 September 2011 Valerie Abbott was in charge of the residential facility as she was the most senior employee. From the time Valerie Abbott left on 14 September 2011 until 16 September 2011 Barry Abbott was in charge of the facility. In the late hours of 13 September 2011 Michael Turner and others obtained petrol for the purpose of inhaling its fumes. The victims then sat around a camp fire sniffing the petrol. Michael Turner and Paul Parker suffered burns to their left legs when each of them spilt the petrol and it caught fire. In the early hours of 14 September 2014, Michael Turner and Paul Parker sought assistance from Valerie Abbott, Barry Abbott and other staff for the burns they suffered. Their burns were bandaged and pain relief medication was administered at the direction of Valerie Abbott. Valerie Abbott and Barry Abbott then directed all of the victims, save for Paul Parker, who was 13 years of age, to get into a cage on the back of Toyota four wheel drive motor vehicle and the door of the cage was secured. The victims remained in the cage until they were allowed to leave at mid-morning on 14 September 2011. They were kept in the cage against their will. The cage was not in a sanitary condition.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, this submission cannot be sustained. The application of force is not an element of s 196 of the Criminal Code (NT). There was no force used in this case and a person may be deprived of their liberty in circumstances of fraud, lack of knowledge, incapacity, and misuse of authority or threat of violence. I accept the appellant’s/cross-respondent’s submission that the offence of deprivation of liberty is committed where a person confines or detains another person in any place against their will; or otherwise deprives a person of their personal liberty. The essential element is the intentional and unlawful total restraint of the liberty of another person. This may be achieved without the use of force.Conclusion It follows from the above reasons that:1.The prosecution appeals against the sentences imposed on the appellants are dismissed.2.The cross-appeal against the sentences imposed on Valerie Abbott for the crimes of failure to provide the necessaries of life are allowed. She is re-sentenced to a wholly suspended sentence of two weeks imprisonment with an operational period of 12 months commencing on 7 December 2012.3.The cross-appeals against conviction are dismissed.

Ratio Decidendi

Legal Principle Established

The appellant submitted that the sentences imposed on Valerie Abbott for the nine counts of deprivation of liberty and the sentences imposed on Barry Abbott were manifestly inadequate because the sentencing magistrate failed to give sufficient weight to the objective seriousness of the offending and failed to record convictions. The offences have a maximum penalty of seven years imprisonment and involved a breach of trust and are especially repugnant because they involve a breach of basic societal values such as care, dignity and the requirement to protect and nurture vulnerable children. Excessive weight was given to the circumstances in which the offences were committed. The Court had a duty to impose a sentence that would operate as a powerful factor in preventing the commission of similar offences. General deterrence is the main purpose of punishment. It was important to make it clear that the community does not approve of this type of conduct.Consideration of the appellant’s submissions on sentence In my opinion, the appellant’s submissions about the sentences imposed for the offences of deprivation of liberty cannot be sustained. The submissions incorrectly elevate the level of the offending in this case by over emphasising the breach of trust. Essentially, what occurred was an overreaction of relatively short duration to the circumstances which confronted Valerie Abbott and Barry Abbott in the early morning of 14 September 2011. On the evidence which was before the Court of Summary Jurisdiction, the following matters are important in the exercise of the sentencing discretion. The offending was committed by two people of good character who had a previous good record for caring for children who were residing at the corporation’s residential facility. The residential facility is in a very remote location and was run by a limited number of staff. Ten people engaged in inhaling petrol fumes not just one or two people. The majority of the victims were in their mid-teens, one was 13 years of age and two were adults. They all had complex needs and had broken the law. Michael Turner was given appropriate first aid before being told to get into the cage. No force or violence was used to place the nine victims in the cage on the back of the Toyota. They were simply told to get in the cage. While the cage was cramped and unsanitary, there was no risk of harm to eight of the nine boys and not a great risk of harm to Michael Turner. He fared better than Paul Parker who stayed at the home of one of the staff. Valerie Abbott and Barry Abbott kept watch while the victims were in the cage. The victims were released from the cage by mid-morning on 14 September 2011. None of the victims were injured as a result of being placed in the cage. Valerie Abbott and Barry Abbott were remorseful about what they did. It was clear that they had learnt a lesson and both of them were likely to lose their employment. Such offences are not at all prevalent in the Northern Territory.