Yinarrarra v Heath - [2017] NTSC 54

CITATION:Yinarrarra v Heath [2017] NTSC 54
PARTIES:YINARRARRA, Barry
v

HEATH, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 16 of 2017 (21715644)
DELIVERED ON:  21 July 2017
DELIVERED AT:  Darwin
HEARING DATE:  14 July 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Assertion that sentencing judge erred in failing to accord procedural fairness to the appellant by not clarifying the assessment report ordered pursuant to s 103 of the Sentencing Act – assertion that defence counsel should have been permitted to examine author of the report – assertion that matter should have been adjourned to seek provision of a further report – no relevant denial of natural justice – appeal dismissed.
Sentencing Act (NT) s 78, s 103
O’Keefe v Tankard [1989] VR 371, distinguished.
REPRESENTATION:
Counsel:
Appellant:RD Anderson
Respondent:  SA Robson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1707
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Yinarrarra v Heath [2017] NTSC 54

No. LCA 16 of 2017 (21715644)
BETWEEN:

BARRY YINARRARRA

Appellant

AND:

ANDREW HEATH

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 21 July 2017)

This is an appeal brought pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT).
On 2 May 2017, the appellant pleaded guilty to unlawfully assaulting his domestic partner contrary to s 188(1) of the Criminal Code (NT). The offence was aggravated by the circumstances that the victim suffered harm, the victim was a female and the appellant was a male, and in the course of the assault the victim was threatened with an offensive weapon.
The offence attracted a maximum penalty of imprisonment for five years. It was also a “level 3 offence” within the meaning of s 78CA of the Sentencing Act (NT). The appellant had a previous conviction for a violent offence. This required the court, if it found the offence proved, to order the offender to serve a minimum term of actual imprisonment of three months: see Sentencing Act, s 78DD. That mandatory provision had application unless the court was of the view that there were “exceptional circumstances” in relation to the offence or the offender: see Sentencing Act, s 78DI.
The sentencing judge received submissions from defence counsel that there were “exceptional circumstances” presenting, that an order suspending sentence would be an appropriate disposition in those circumstances, and that the matter should be adjourned for the purpose of receiving a report under s 103 of the Sentencing Act. The sentencing judge adjourned the matter for that purpose.
The hearing resumed on 10 May 2017. At that time the sentencing judge found that exceptional circumstances had not been made out, convicted the appellant, imposed a sentence of imprisonment for five months, and declined to suspend any part of that…

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.

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Details

AGLC: Yinarrarra v Heath [2017] NTSC 54
Case: [2017] NTSC 54
Decision Date: 21 July 2017

CaseChat Overview and Summary

Yinarrarra brought an appeal against his conviction and sentence, arguing that the sentencing judge failed to accord procedural fairness by not clarifying the assessment report ordered under Section 103 of the Sentencing Act. The appellant contended that defence counsel should have been permitted to examine the author of the report and that the matter should have been adjourned to seek provision of a further report. The appeal was dismissed by the court.

The primary legal issue before the court was whether the sentencing judge erred in not ensuring procedural fairness by failing to clarify the assessment report ordered under Section 103 of the Sentencing Act. Specifically, the appellant argued that defence counsel should have been allowed to examine the author of the report and that the case should have been adjourned to obtain a further report.

The court found that Section 103 of the Sentencing Act only requires that the sentencing court must consider a report from the Commissioner of Correctional Services regarding the offender's suitability for supervision before imposing a sentence that places the offender under the supervision of a probation and parole officer. The court noted that ordering such a report does not indicate that the court will impose an order requiring supervision, nor does it restrict the court's discretion. The court further found that the sentencing judge's order for the assessment report at the request of the appellant's counsel did not imply that he considered an order suspending sentence subject to supervision was appropriate. The report indicated that the offender was unsuitable for supervision due to limited English comprehension and the unavailability of an interpreter from Northern languages, but suggested that the offender could potentially be considered suitable with an adjournment to the Darwin court. The court concluded that there was no relevant denial of natural justice.

The appeal was dismissed, with the court finding no error in the sentencing judge's handling of the assessment report. The appellant's argument that defence counsel should have been permitted to examine the author of the report and that the matter should have been adjourned to seek a further report was rejected. The court found that the sentencing judge's decision to order the assessment report did not indicate that he considered an order suspending sentence subject to supervision was appropriate, and that the report's findings did not constitute a denial of natural justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant was 32 years of age at the time of the offending. He has limited English comprehension. He is originally from Ramingining. He has a limited criminal history. In addition to the aggravated assault committed in 2010 (which also involved the infliction of harm and the use of a weapon), he has one conviction for trespass and one proven offence of unlawful property damage.Consideration Section 103 of the Sentencing Act requires only that before imposing a sentence that places the offender under the supervision of a probation and parole officer, the sentencing court must have regard to a report of the Commissioner of Correctional Services as to the offender’s suitability for supervision. A number of matters may be noticed concerning the operation of that provision. First, courts in this jurisdiction frequently order reports under that section at the behest of counsel for the accused. To do so is not an indication that the sentencing court will impose, or is actively considering the imposition of, an order requiring supervision (and/or suspending sentence). Secondly, the provision of that assessment by the Commissioner of Correctional Services is an administrative act. It does not direct or otherwise fetter the exercise of the judicial function. The sentencing court may decline to make an order involving supervision even if the accused is assessed as suitable for that purpose. Conversely, the court may make an order involving supervision even if an accused is assessed as unsuitable. So, an assessment by the Commissioner of Correctional Services that an offender is not suitable for supervision does not close off an order suspending sentence and placing the offender under supervision if that is the appropriate disposition in the circumstances. Against that background, during the course of the hearing on 2 May 2017 the sentencing judge ordered the assessment pursuant to s 103 of the Sentencing Act at the request of the appellant’s counsel. That request was plainly made as a precursor to a submission that any sentence to imprisonment imposed on the appellant should be suspended in part. That the sentencing judge acceded to the request provided no indication that he considered an order suspending sentence subject to supervision was an appropriate disposition in the circumstances. The report subsequently generated provided relevantly:The offender was spoken to however he has limited English comprehension and did not demonstrate adequate understanding of the general conditions of supervision. Unfortunately the Aboriginal Interpreter Service in Alice Springs does not employ interpreters with language skills from Northern languages; where the offender is from.Community Corrections does facilitate supervision in Ramingining, and the offender could potentially be considered suitable for supervision. However without understanding potential conditions he cannot be considered suitable at this time. He may benefit from an adjournment to the Darwin court; where an interpreter would be more readily available.The offender is assessed as unsuitable for general supervision at this time.