Winzar v Wayne - [2005] NTSC 27

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PARTIES: WINZAR, Kevin David

WAYNE, Christopher

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 5 of 2005 (20406196)

DELIVERED: 15 June 2005

HEARING DATES: 10 June 2005

JUDGMENT OF: RILEY J

REPRESENTATION:

Counsel:

Appellant: C. Roberts

Respondent: K. Banbury

Solicitors:

Appellant: Office of the Director of Public Prosecutions
Respondent: Central Australian Aboriginal Legal Aid Service

Judgment category classification: B
Judgment ID Number: ril0511
Number of pages: 9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Winzar v Wayne [2005] NTSC 27

No JA 5 of 2005 (20406196)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:

WINZAR, Kevin David

Appellant

AND:

WAYNE, Christopher

Respondent

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 15 June 2005)

This is a Crown appeal against sentence. On 16 December 2004 the respondent pleaded guilty to a charge of aggravated assault. The assault occurred at about 4.30 am on 15 April 2003 in Gap Road in Alice Springs. The victim of the assault had been sharing a cigarette with a friend but was alone at the time of the assault. The respondent, who was not known to her, approached and called out to her as she walked towards her home. She stopped. There was a short conversation and then the victim continued walking along Gap Road. At some point she stopped and sat on a rock because she did not want to lead the respondent to her home. The respondent sat behind her. There was some further conversation in which the victim intimated to the respondent that she did not want to talk to him and that she wanted him to leave her alone. She got up and walked away. The respondent then grabbed her by the hair with one hand and pulled her forward with his other hand on her shoulder. She tried to escape but was unsuccessful. She was pushed against a wall and again grabbed by the hair and punched to the left-hand side of her face with a closed fist. She fell to the ground from the force of the punch. The respondent then fell on top of her and there was a struggle. The victim again tried to run away but was punched twice to the head. She was then held by her trousers in the thigh area so that she could not run away. The respondent began to remove her trousers. The victim then took her trousers off completely so that she could try to escape. She threw the trousers at the respondent, who got up from the ground and pushed her into a brick wall. The respondent then tried to remove her underpants. The victim threw her underpants at him and then escaped and…

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 Winzar v Wayne

Details

AGLC: Winzar v Wayne [2005] NTSC 027
Case: [2005] NTSC 27
Decision Date: 15 June 2005

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the case of Winzar v Wayne was heard. The respondent, Christopher Wayne, was appealing against a sentence imposed by the Court of Summary Jurisdiction. The offence in question was an aggravated assault that occurred in April 2003. The respondent pleaded guilty to the charge in December 2004. The Crown appealed the sentence, arguing it was manifestly inadequate given the circumstances of the offence and the offender.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and, if so, what the appropriate sentence should be. The court considered the principles governing Crown appeals, which include determining whether the sentencing magistrate was in error, misunderstood evidence, or made an error in principle. The court also needed to consider the principle of "double jeopardy," which prevents the respondent from being sentenced twice for the same offence.

The court found that the sentence imposed was indeed manifestly inadequate, given the serious nature of the offence and the respondent's criminal history. The court determined that a significantly greater head sentence was warranted, considering the circumstances. However, due to the principle of "double jeopardy" and the fact that the respondent had already served part of the sentence, the court decided against imposing a further custodial sentence. Instead, the court fashioned a suspended sentence that would permit the respondent to remain at large.

The final orders were that the sentence imposed by the Court of Summary Jurisdiction was quashed and replaced with a sentence of imprisonment for a period of 12 months, suspended after a period of two months. The operational period for the purposes of s 40(6) of the Sentencing Act was set at 18 months from the date of the respondent's release from prison, and the sentence was backdated to 3 December 2004 to reflect time in custody.

Orders