Bianamu v Rigby

• Jurisdiction: Northern Territory
• Court: Court of Appeal
• Judge: Southwood J,Kelly J,Hiley J
• Judgment Date: 30 September 2021
• Docket Number: FILE NO: AP 6 of 2020 (21844124)

[2021] NTCA 4

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JUDGMENT OF:

Southwood, Kelly and Hiley JJ

FILE NO: AP 6 of 2020 (21844124)

Between:

Bronwyn Bianamu

Appellant

and

Kerry Anne Rigby

Respondent

REPRESENTATION:

Counsel:

Appellant: M Thomas with K Roussos

Respondent: M Nathan SC with D Castor

Allesch v Maunz (2000) 203 CLR 172; Anderson v R (1997) 92 A Crim R 348; Atkinson v R [2013] NRCCA 5; Bara v The Queen [2016] NTCCA 5; Bianamu v Rigby [2020] NTSC 43; Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; CDJ v VAJ [1998] HCA 67; 197 CLR 172; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Connell v Kelly [1951–56] NTJ 407; Dooley v The Queen [2003] NTCCA 6; Eastman v The Queen (2000) 203 CLR 1; Foody v Horewood [2007] VSCA 130; Gallagher v R (1986) 160 CLR 392; Green v The Queen (2011) 244 CLR 462; Gronow v Gronow (1979) 144 CLR 513; House v The King (1936) 55 CLR 499; JK v Waldron (1998) 93 FLR 451; Kelly v The Queen (1991) 33 FCR 536; Leach v The Queen [2005] NTCCA 18; Leaney v Bell (1992) 108 FLR 360; Lee v McMahon Contractors Pty Ltd (2018) 335 FLR 350; Lo Castro v The Queen [2011] NTCCA 1 Lowe v The Queen (1984) 154 CLR 606; McCarthy v Trenery [1999] NTSC 29; Many (1990) 51 A Crim R 54; Marshall v Court [2013] NTSC 75; Mason v Pryce (1988) 53 NTR; McCarthy v Trenery [1999] NTSC 29; Mickelberg v The Queen (1989) 167 CLR 259; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566; Payne v The Queen [2007] NTCCA 10; Postiglione v The Queen (1997) 189 CLR 295; Quilter v Mapleson (1882) 9 QBD 672; R v Babic [1998] 2 VR 79; R v C [2004] SASC 244; R v Clark [2017] QCA 318; R v Fordham (1997) 98 A Crim R 359; R v Mills [1998] 4 VR 235; R v WEF (1998) 2 VR 385; Smith v R (1987) 44 SASR 587; Re Coldham; Ex parte Brideson (1990) 170 CLR 267 The Queen v MacGowan [1986] 42 SASR 580; The Queen v Nguyen [2006] VSCA 184; Tilbury v The Queen [2015] NTCCA 4; Tiver Constructions Pty Ltd v Clair (1992) 110 CLR 339; Sears v McNulty (1987) 89 FLR 154; Veness v The Queen [2020] NTCCA 13; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; Warren v Coombs (1979) 142 CLR 531; Wilson v Lowery (1993) 4 NTLR 79, referred to.

Criminal Code 1983 (NT), s 186, s 213

Local Court (Criminal Procedure) Act 1928 (NT), s 163, s 176A, s 177

Supreme Court Act 1979 (NT), s 51, s 54, s 55

Mirko Bagaric, Ross on Crime (8 ^th ed. Thomson Reuters)

CRIME — Appeals — Appeal against judgment of the Supreme Court dismissing appeal against sentence imposed by the Local Court — new ground of appeal — fresh evidence raising disparity for the first time — co-offender sentenced after judgment of the Supreme Court perfected — any disparity justified — Appeal dismissed

JURISDICTION — jurisdiction of the Court of Appeal to decide new ground of appeal — original jurisdiction of the Court of Appeal — jurisdiction found — new ground of appeal considered — Appeal dismissed

EVIDENCE and PROCEDURE — power of Court of Appeal to receive fresh evidence — s 176A of Local Court (Criminal Procedure) Act 1928 (NT) — s 54 Supreme Court Act 1979 (NT) — fresh evidence admitted

REASONS FOR JUDGMENT

(Delivered 30 September 2021)

Southwood J

Introduction

1 This is an appeal against a judgment of the Supreme Court dismissing an appeal against two sentences of imprisonment imposed on the appellant by the Local Court.

2 On 9 October 2019 the appellant pleaded guilty in the Local Court to unlawfully entering a building at night with intent to commit an assault contrary to s 213(1), (2) and (5) of the Criminal Code 1983 (NT), and unlawfully causing harm contrary to s 186 of the Criminal Code. She was sentenced to imprisonment for 12 months for each offence. Six months of the sentence imposed for the second offence was ordered to be served cumulatively on the sentence imposed for the first offence giving a total sentence of 18 months' imprisonment. The sentence was ordered to be suspended after the appellant has served six months in prison, and an operational period of 12 months from the date of the appellant's release from prison was fixed under s 40(6) of the Sentencing Act 1995 (NT).

3 Under s 163(1)(a) of the Local Court ( Criminal Procedure) Act 1928 (NT), the appellant appealed to the Supreme Court on the following grounds:

• 1. The learned sentencing Judge erred in law in imposing a sentence which was manifestly excessive in all the circumstances of the case.

  Particulars

  The sentence reflects that the learned sentencing Judge:

  • a. Improperly categorised by way of analogy, count 6 as a level 5, s 78CA(1) and s 78DA Sentencing Act offence in his sentencing deliberations.

  • b. Departed from s 50 of the Sentencing Act and made an order for partial concurrency in circumstances where two technically different offences amounted to a single course of conduct.

  • c. Failed to properly apply the principle of totality.

  • d. Failed to order the Commissioner of Corrections to prepare and provide to the court a report about the matters referred to in s 45(1)(a)(i)(ii)(iii) [home detention] of the Sentencing Act.

  • e. Failed to consider whether it would be appropriate to order supervision as a condition of a suspended sentence, and thus order a s 103 Sentencing Act assessment report [assessment for supervision].

  • f. Failed to make enquiries of the prosecutor about any penalty imposed on the co-offenders jointly charged on the information before the Court.

  • g. Departed from the principle that a term of imprisonment should only be imposed as a sentence of last resort.

• 2. The sentence was manifestly excessive in all the circumstances of the case.

• 3. The appellant was represented by counsel whose competence fell short of the standard which a court should be entitled to expect, which gave rise to a miscarriage of justice.

4 On 17 July 2020 Grant CJ dismissed the appeal. His Honour gave detailed written reasons for doing so. 1

5 On 30 July 2020 the appellant filed a notice of appeal against the judgment of Grant CJ. The grounds of appeal were as follows.

• 1. The learned Chief Justice erred in law in rejecting the appellant's contention that the sentence imposed by the learned sentencing Judge was, in all the circumstances, manifestly excessive.

• 2. The learned Chief Justice erred in law in rejecting the appellant's contention that the appellant's legal representation during the course of the sentencing proceeding was so inadequate that the appellant was denied procedural fairness and, consequently, the right to be sentenced according to law.

• 3. The learned Chief Justice erred in law in rejecting the appellant's contention that the learned sentencing Judge failed to apply the principle that a sentence of actual imprisonment should only be imposed as a sentence of last resort.

6 At the hearing of the appeal in this Court, the appellant was granted leave to incorporate ground 3 into ground 1, and add a new ground 3:

The principle of parity ought to have resulted in the appellant receiving a sentence that was less severe than actual imprisonment, namely, at least, to engage in a home detention order.

7 On 1 December 2020 the appellant filed an amended notice of appeal. The amended notice of appeal consolidated ground 1 and old ground 3 and further amended new ground 3 as follows:

• 1. That the learned Chief Justice erred in law in rejecting the appellant's contention that the sentence imposed by the learned sentencing Judge was, in all the circumstances, manifestly excessive (this includes what had been ground 3 of the original Notice of Appeal, namely failing to apply the principle that a sentence of actual imprisonment should only be imposed as a sentence of last resort).

• 2. […]

• 3. That the sentence imposed on the appellant compared with the sentence imposed on her co-offender (Sing) produced a disparity between the sentences that was, regarding the appellant's sentence, manifestly excessive, which gave rise to a justifiable sense of grievance on behalf of the appellant that justice had not been done.

Grounds 1 and 2 dismissed

8 Grounds 1 and 2 of the appeal are dismissed. No error was shown in Grant CJ's reasons for decision. 2 For the reasons his Honour gave, he correctly dismissed the appeal from the Local Court on those grounds. The sentences imposed on the appellant were not manifestly excessive and the quality of the appellant's legal representation at first instance did not amount to a denial of procedural fairness that caused a miscarriage of justice.

9 I deal with new ground 3 below.

The facts

10 The facts of the appellant's offending may be summarised as follows.

11 On the evening of 26 July 2018 victims Jocelyn Gordon and Rosalie Singh were inside their home which was House 282 Belyuen Aboriginal Community. Also inside the house were Ms Singh's daughter, who was 12 years old, and Ms Gordon's younger brother, Thomas Moreen, who was 15 years old. They were all in bed and the front door of the house was locked.

12 At 10.30 pm the appellant made her way to House 282 in company with six other people – four males (Claude Yarrowin, Gavin Bianamu, Reggie Bigfoot, and Shannon Sing) and two females (Melissa Jorrock and Jocelyn Yarrowin).

13 When the appellant's group reached the house they used force to break the sliding bolt lock on the front door. Once inside, they upended the furniture in the main living area of the house and smashed a flat screen television. In an attempt to prevent the appellant and her co-offenders entering the bedroom, the occupants of...