Whitfield v The Queen - [2014] NTCCA 7

Whitfield v The Queen [2014] NTCCA 7

PARTIES: WHITFIELD, Ryan

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 10 of 2013 (20928097)
PRONOUNCED:  16 July 2013
PUBLISHED:  21 March 2014
HEARING DATE:  16 July 2013
JUDGMENT OF:  SOUTHWOOD, BLOKLAND and BARR JJ
APPEALED FROM:  RILEY CJ
CATCHWORDS:

CRIMINAL LAW – Applications for extension of time and leave to appeal against full restoration of suspended sentence – manifestly excessive – competence of counsel – failure to apply for adjournment – failure to contest breaches – unavailability of evidence – applications dismissed
Sentencing Act s 43(3), (5), (7)

Bukulaptji v The Queen (2009) 24 NTLR 210; Cranssen v the King (1936) 55 CLR 509; Murphy v R [2005] NTCCA 15, applied
REPRESENTATION:
Counsel:
Applicant:J Adams
Respondent:  W J Karczewski QC and D Jones
Solicitors:
Applicant:Self
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   B
Judgment ID Number:  Sou1402
Number of pages:  22

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Whitfield v The Queen [2014] NTCCA 7

No. 10 of 13 (20928097)
BETWEEN:

RYAN ANDREW WHITFIELD

Applicant

AND:

THE QUEEN

Respondent

CORAM: SOUTHWOOD, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 21 March 2014)
The Court:

On 16 July 2010 the applicant was sentenced to three years and six months imprisonment for the crime of aggravated robbery. The sentence of imprisonment was ordered to be suspended after the applicant had served 18 months in prison. On 20 December 2013 Riley CJ revoked the suspension of the sentence and ordered the restoration of the whole of the balance of the suspended sentence for the crime of aggravated robbery. His Honour sentenced the applicant to one year and eight months imprisonment with a non-parole period of 11 months. The restoration of the balance of the suspended sentence was ordered because the applicant had committed further breaches of the suspended sentence.
On 28 February 2013 the applicant applied for an extension of time and leave to appeal the restoration of the suspended sentence passed by Riley CJ on 20 December 2012. The time limit for filing an application for leave to appeal expired on 17 January 2013. The applicant was initially unrepresented before this Court. Mr Adams then appeared on 16 July 2013 at short notice to advise the applicant but did not seek to make any submissions beyond the written submissions already filed by the applicant.
On 16 July 2013, the Court of Criminal Appeal heard and dismissed both applications because the applicant failed to demonstrate that he had an arguable case. The Court of Criminal Appeal stated that the reasons for decision would be published at a later date. Following are our reasons for decision.
Grounds of the applications
The grounds of the applications are as follows.
1.The sentence that was imposed on the applicant on 20 December 2012 was manifestly excessive 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 Whitfield v The Queen

Details

AGLC: Whitfield v The Queen [2014] NTCCA 7
Case: [2014] NTCCA 7
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of *Whitfield v The Queen* concerned applications for an extension of time and leave to appeal against the full restoration of a suspended sentence. The applicant, Whitfield, sought to challenge the sentence imposed by Riley CJ on 20 December 2012, arguing it was manifestly excessive and that his legal representation had been inadequate.

The legal issues before the court were whether the sentence imposed was manifestly excessive, whether there was inadequate preparation time for the plea on sentence, whether counsel failed to contest alleged breaches of the suspended sentence, whether the sentencing judge erred in finding breaches proved, and whether counsel failed to explain the applicant's legal rights or apply for an adjournment. These grounds stemmed from the applicant's conviction for aggravated robbery, which also constituted a breach of a previously suspended sentence.

The court found that none of the applicant's grounds demonstrated that the plea on sentence miscarried due to counsel's conduct or any other reason, nor did they show that Riley CJ erred in sentencing. The breaches of the suspended sentence – failure to complete a rehabilitation program, absconding from the jurisdiction, and fresh offending – were not contested, as the applicant's own evidence admitted to failing to complete the program and absconding. While the applicant provided evidence regarding his exclusion from the rehabilitation program, this was seen as an explanation for the breach, not a denial of it. The court noted that Riley CJ did not accept the applicant's evidence regarding these circumstances and made no error in doing so. The applicant's concessions during oral evidence confirmed his admission to breaches and a lack of full compliance with the program.

The applications for an extension of time and leave to appeal were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of the applications are as follows.1.The sentence that was imposed on the applicant on 20 December 2012 was manifestly excessive in light of the applicant’s efforts to rehabilitate himself.2.There was inadequate preparation time for the plea on sentence which was heard by Riley CJ on 20 December 2012. This resulted in crucial information/evidence not being present and certain support documentation not being available.3.The applicant’s counsel failed to contest some of the alleged breaches of the order suspending the applicant’s sentence which was passed on 16 July 2010.4.Error on the part of the sentencing judge finding the breaches proved in light of the applicant’s evidence about his problems with other participants in the rehabilitation program.5.Failure of the applicant’s counsel to explain the applicant’s legal rights to him.6.Failure of the applicant’s counsel to apply for an adjournment until all documentation was present and reviewed by the applicant.The facts On 23 August 2009 the applicant and his co-offender were together in a motor vehicle driven by the applicant. At some point, a young female friend joined them. The three of them went to a party near Gunn Point and the applicant and his co-offender drank some alcohol. They then travelled back to Darwin. When they were near the Trailer Boat Club, the applicant and his co-offender agreed to rob someone. The co-offender then drove to Lambell Terrace. The victim was spotted near the intersection of Lambell Terrace and Smith Street. The co-offender stopped the motor vehicle and he and the applicant got out and walked past the victim. They then turned back and the applicant said to the victim, “Give us what you have fucking got.” He then punched the victim in the face. The co-offender tackled the victim against a concrete wall next to the footpath and punched him twice to the head. The victim fell to the ground and curled up into a foetal position for protection. The applicant punched the victim three times while he was on the ground. He took the victim’s mobile telephone and wallet and the offenders drove off. As a result of the attack, the victim suffered a seven centimetre laceration to his left forehead, a bleeding nose, facial grazing and grazing to his left elbow. As a result of his criminal conduct, the applicant was charged with the crime of aggravated robbery, which has a maximum penalty of imprisonment for life. The applicant’s offending was in breach of a suspended sentence of imprisonment imposed by the Court of Summary Jurisdiction. Seven months and 14 days, of the sentence passed by the Court of Summary Jurisdiction remained held in suspense when the applicant committed the aggravated robbery. Before he sentenced the applicant for the crime of aggravated robbery, Riley CJ was told that the applicant began misusing drugs and alcohol when he was 13 years of age. The authorities had experienced little success in assisting the applicant with this problem. However, the applicant was interested in undertaking a residential rehabilitation program to try and overcome his substance misuse.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In addition to the documents referred to above the applicant also gave evidence that he would have liked to have placed before Riley CJ the following documents:1.Information from a hospital in Ayr Queensland relating to his mental health.2.A letter of confirmation from Sucrogen Sugar Mills regarding attending an apprenticeship aptitude test.3.A letter from Mission Australia in Kilkenny Adelaide confirming his attendance on them.4.A letter of acceptance from Adelaide TAFE regarding a course he had applied for enrolment in.5.A letter confirming previous employment with Villies Pies in Adelaide.Consideration In our opinion, none of the matters raised by the applicant demonstrated that the plea on sentence miscarried because of the manner in which his counsel conducted the plea on his behalf or for any other reason. Nor did the matters raised by the applicant demonstrate the Riley CJ erred in any way in sentencing the applicant on 20 December 2012. The breaches which were the subject of the breach proceedings on 20 December 2012 were: (1) failure to complete the Sunrise Program; (2) absconding from the jurisdiction; and (3) the applicant’s fresh offending (excluding the speeding offence) committed on 16 May 2012. None of these breaches were contested nor could they be contested. The applicant gave evidence on 20 December 2012 and his own evidence confirmed that he was guilty of failing to complete the Sunrise Program and absconding from the Northern Territory. An Information for Courts was tendered in evidence which contained the applicant’s criminal history and it established that the applicant had been convicted in the Court of Summary Jurisdiction of a number of offences that he committed on 16 May 2012. In the applicant’s presence, and clearly on his instructions, his Counsel told the Court that the applicant admitted that he committed all of the offences recorded as having been committed on 16 May 2012, save for a speeding offence which was not taken into account by Riley CJ. The applicant gave oral evidence before Riley CJ about the circumstances in which he was excluded from the Sunrise Program. His evidence was that he did abscond from the Sunrise Program from time to time to see his girlfriend and because he was having difficulty with some of the other residents. As a result of doing so he failed to undergo a number of drug tests. The only use, to which the applicant’s evidence about these matters could be put, if it was accepted by Riley CJ, was to explain the circumstances in which the applicant committed this particular breach, not to establish that there was no breach. Riley CJ found that he did not accept the applicant’s evidence about these matters. His Honour made no error in doing so. All of the matters in Ms McFarlane’s affidavits were put to the applicant during his oral evidence before Riley CJ and he had a fair opportunity to deal with them. The applicant ultimately conceded in his submissions to this Court that he told a lie to Ms McFarlane about how he came to leave the Sunrise Centre. As to the exit report, during his oral evidence the applicant conceded (1) that he was absent from the Sunrise Centre without permission on 13 March 2012, 4 April 2012, 10 April 2012 and 14 April 2012; (2) to taking a few nights off to see his girlfriend and not getting caught; (3) that he was not fully trying to comply with the program because he did not believe that he had a drug problem; (4) that he could not really relate to the program because he had not used drugs for a number of years; (5) that he disregarded some of the Centre’s rules; and (6) that he failed to attend for a number of drug tests while he was absent from the Centre.