Cameron Ford Supreme Court judgments

CAMERON FORD

BARRISTER, ARBITRATOR, ADJUDICATOR, MEDIATOR www.cameron-ford.com

Supreme Court judgments

CIVIL APPEALS

Rehearing; Vitiating error required

In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1 [7]-[8], the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that, although the Supreme Court Act 1979 (NT) does not specify the type of appeal under s51, the assumption has always been that the appeal is an appeal by way of rehearing on a question of law or fact or both. The clear statutory implication is that vitiating error by the trial Judge must be established before the Court will interfere.

CONVERSION

Relational context relevant

In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1, the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that the question whether conversion has occurred requires an understanding of the practical and commercial context of the relationship between the parties to determine whether the actions were repugnant to the owner’s rights of ownership assessed in the context of the realistic, practical and honest conduct of the business in question. Being in possession of another’s goods without authority does not, without more, amount to conversion. The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession. An invitation to the owner to come and retrieve the goods may be worthless and disingenuous given the logistical, geographical and situational difficulties of collecting the goods.

CRIMINAL APPEALS

Number of notices of appeal

In Lorenzetti v Brennan [2021] NTSCFC 3, the Full Court (Southwood, Kelly JJ and Riley AJ) held that there must be a separate notice of appeal from each sentence regardless of the number of complaints on which the sentences were imposed. The court recommended Parliament amend the legislation to permit one notice per complaint.

EVIDENCE

Briginshaw not applicable to quantum

In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1, the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that the Briginshaw test of clear or cogent proof did not apply to determination of quantum after it had been applied to establish liability. It is not unusual that an assessment of quantum is inferential, or that circumstantial evidence may be used to

prove a matter on the balance of probabilities

EVIDENCE

Flight as an admission

In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1 [57][58], the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that, for flight to be taken as an admission, the reason for the flight must relate to a material issue in the proceeding and the flight must not be explicable on a basis other than a consciousness of guilt. In civil proceedings, the test is not proof beyond reasonable doubt, but given the seriousness of the allegation, the facts must nevertheless be proved to the civil standard in accordance with Briginshaw. In this case, a car passenger’s applying of the handbrake was analysed as a flight.

SENTENCING

Aggravated robbery and supply

In Fuller v The Queen [2021] NTCCA 1, the Court of Criminal Appeal (Grant CJ, Southwood and Brownhill JJ) reduce a sentence for aggravated robbery from three years and nine months to two years and eight months’ imprisonment suspended after 18 months, giving a 33% discount for cooperation with the authorities and a plea. The offending was at the lower end, the assault was quick and without physical contact. Aggravated robbery, less serious

In AK v The Queen [2021] NTCCA 4, the Court of Criminal Appeal (Blokland, Barr and Brownhill JJ) reduced a sentence for aggravated robbery from three years to 18 months, and for contempt of court from nine months to six months due to the offences being of a less serious nature, the age and troubled background of the 16 year old prisoner, and for parity with co-offenders. The court considered the three sources of power for sentencing youths and the judicial discretion in determining which to apply.

SENTENCING

DVO repeat offences and totality

In Lorenzetti v Brennan [2021] NTSCFC 3, the Full Court (Southwood, Kelly JJ and Riley AJ) held that the principle of totality may be served when sentencing for second and subsequent breaches of DVOs and other offences (which s121(7) of the Domestic and Family Violence Act prohibits being made concurrent) by making some concurrency in the sentences for the other offences or by reducing the DVO sentences to the lower end of the range. It is not permissible to lower the sentences below what would be appropriate for the objective seriousness of the particular offending. DVO repeat offences and suspending

In Lorenzetti v Brennan [2021] NTSCFC 3, the Full Court (Southwood, Kelly JJ and Riley AJ) held that the plain meaning of s 121(5) of the Domestic and Family Violence Act is to prohibit the court from suspending any part of a sentence imposed for a second or subsequent offence of breaching a DVO. However, the section is not contravened if the required period for the DVO sentences are directed to be served before the suspension.

SENTENCING

Home detention after suspended sentence

In R v Bennett [2021] NTCCA 2, the Court of Criminal Appeal (Grant CJ, Southwood and Brownhill JJ) held that the court has power under s44(1) of the Sentencing Act (NT) to suspend a sentence wholly or partially upon the offender becoming subject to and bound by a home detention order.

SENTENCING

Proof of facts contrary to agreed facts

In Duong v The Queen [2021] NTCCA 3 [50]-[64]; [85]-[92], the Court of Criminal Appeal (Southwood and Kelly JJ and Hiley AJ) held that, if accused wish to be sentenced on a different basis from the agreed facts, they must tender evidence, which the judge

may disbelieve and sentence on the agreed facts. The court is not required to sentence according to the accused’s assertions if it rejects those assertions.

SENTENCING

Relevance of deportation

In R v Calica [2021] NTSCFC 2, a five member Full Court (Grant CJ, Southwood, Kelly, Blokland and Barr JJ) held that there are three categories of cases where the impact of the prospect of deportation has been considered—where the sentence is crafted to avoid the prospect, where the prospect is considered in setting a non-parole period, and where it is considered in reducing the head sentence. After an exhaustive review of often conflicting Australian authorities, the court held at [161] that, in the Territory, (1) the court may not take into account the prospect of deportation to craft a sentence to avoid the prospect; (2) prospect of deportation is not generally relevant to fixing a non-parole period; and (3) the prospect of hardship suffered as a result of deportation, and loss of the opportunity to settle permanently in Australia may, in appropriate circumstances, be taken into account in mitigation of sentence, provided the likelihood of deportation and its hardship to the offender are established by evidence as more than speculative. Supply 28kg cannabis

In Duong v The Queen [2021] NTCCA 3 [10]-[31]; [93]-[106], the Court of Criminal Appeal (Southwood and Kelly JJ and Hiley AJ) upheld a sentence of five years imprisonment (reduced from six years for a plea), suspended after three years for the supply of 28.3 kg of cannabis, around 56 times the commercial threshold. Attention should be paid to the offender’s actions in the commission of the offence rather than to a characterisation such as a ‘courier’. Here the accused paid for a hire car, drove the drugs through two states to the Territory, persisted after an accident, and played a part in their distribution.

SENTENCING

Youths’ priors

In R v JHW [2021] NTSCFC 1, the Full Court (Grant CJ, Southwood and Kelly JJ) held that s136 of the Youth Justice Act (NT) precludes the Supreme Court from taking into account an offence of which a youth was found guilty but not convicted, if the offender is an adult when sentenced by the Supreme Court. The Supreme Court is not precluded where the offender is still a youth and the court is utilising the provisions of the Youth Justice Act, or of that Act and the Sentencing Act. Facts appellable

In Duong v The Queen [2021] NTCCA 3 [10]-[31], the Court of Criminal Appeal (Southwood and Kelly JJ and Hiley AJ) held that sentencing appeals under s 411(4) of the Criminal Code (NT) are a full appeals on fact and law form the exercise of a discretion, rather than appeals in the strict sense as in other jurisdictions. A finding of fact is appellable without it having to amount to or approach an error of law.