White v Brown - [2003] NTSC 51

White v Brown [2003] NTSC 51
PARTIES:MICHAEL JOHN WHITE

v
PADDY BROWN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:No. 20210067 JA15/2003
DELIVERED:  9 May 2003
HEARING DATES:  23 April 2003
JUDGMENT OF:  MILDREN J
CATCHWORDS:

Appeal – Criminal Law – Crown appeal - Sentencing – Mandatory minimum sentence for violent offence – Sentence of 3 months imprisonment suspended after 10 minutes - whether prisoner "served a term of imprisonment that is suspended partially but not wholly" - whether sentence manifestly inadequate.
Statutes:
Criminal Code, s 188

Interpretation Act, s 62B

Sentencing Act, s 78BA
Cases:
Hales v Jamilmira
(2003) NTCA 9, referred to.

Harriss v Walker
(1996) 89 A Crim R 257 at 261-262, followed.
Inness Wurramara (1999) 105 A Crim R 513, referred to.
Knight v Birch (1992) 106 FLR 109 at 119, referred to.
Reg v Cutbush LR 2QB 379, followed
R v Harrop [1979] VR 549 at 552-553, followed
Reggett v Douglas & Miller (1990) 50 A Crim R 41, referred to
Rex v Martin [1911] 2 KB 450, followed
REPRESENTATION:
Counsel:
Appellant:M Carey
Respondent:  D Woodroffe
Solicitors:
Appellant:Director of Public Prosecutions
Respondent:  North Australian Aboriginal Legal Aid Service
Judgment category classification:    B
Judgment ID Number:  Mil03301
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
White v Brown [2003] NTSC 51

No. 20210067 JA15/2003
BETWEEN:

MICHAEL JOHN WHITE

Appellant

AND:

PADDY BROWN

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 9 May 2003)

This is an appeal against sentence brought by the prosecution pursuant to

s 163 of the Justices Act.
The respondent was charged with one count of unlawfully assaulting

Clara Brown, his wife, the only circumstance of aggravation alleged being that he was a male and Clara Brown was a female: s 188(2)(b) of the Criminal Code.
It was common ground that the respondent had a prior conviction for an offence against s 188 of the Criminal Code. Therefore, pursuant to s 78BA of the Sentencing Act, the Court of Summary Jurisdiction was required to record a conviction and order that the respondent serve either "a term of actual imprisonment" or "a term of imprisonment that is suspended partly but not wholly".
The Crown facts in relation to the offence for which the respondent pleaded guilty, are not known with any precision. There is no transcript of the proceedings available at the time when the respondent pleaded guilty and when the Crown facts were read and when submissions were made relevant to sentence. There is however a transcript of the adjourned proceedings held before the learned Magistrate at the time when sentence was passed. It is apparent that the reason why the matter proceeded in this way is that the learned Magistrate ordered a presentence report which meant that the proceedings before him had to be adjourned until the presentence report was available.
Regrettably the facts relating to the circumstances of this…

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 White v Brown

Details

AGLC: White v Brown [2003] NTSC 51
Case: [2003] NTSC 51
Decision Date: 9 May 2003

CaseChat Overview and Summary

The matter of White v Brown was brought before the court as an appeal by the Crown against the sentencing of the defendant, Brown, who had been found guilty of a violent offence. The defendant was sentenced to a term of imprisonment of three months, which was to be suspended after serving 10 minutes. The Crown argued that the sentence was manifestly inadequate and failed to adequately reflect the seriousness of the offence. The court was required to determine whether Brown had served a term of imprisonment that was suspended partially but not wholly, and whether the sentence was manifestly inadequate.

The legal issues before the court included whether the defendant had effectively served a term of imprisonment, and whether the sentence imposed was manifestly inadequate. The Crown argued that the sentence did not adequately reflect the seriousness of the offence, and that the defendant had not served a term of imprisonment that was suspended partially but not wholly. The court was required to consider the principles of sentencing in relation to mandatory minimum sentences, and whether the sentence imposed was consistent with the objectives of the sentencing legislation.

In determining the appeal, the court found that the defendant had effectively served a term of imprisonment, despite the sentence being suspended after only 10 minutes. The court held that the sentence was manifestly inadequate, and that it failed to adequately reflect the seriousness of the offence. The court noted that mandatory minimum sentences were intended to ensure that offenders received a minimum level of punishment, and that the sentence imposed in this case did not achieve this objective. The court ultimately allowed the appeal and imposed a sentence of imprisonment for a term of six months, to be suspended after serving three months.

Orders