R v Brancourt

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Kelly J
• Judgment Date: 03 September 2013
• Neutral Citation: [2013] NTSC 56
• Docket Number: FILE NO: 21249123
• Date: 03 September 2013

[2013] NTSC 56

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Kelly J

FILE NO: 21249123

Between:

The Queen

Plaintiff

and

Scott Brancourt

Defendent

Commissioner of Taxation v Price [2006] 2 Qd R 319 ; R v White [2006] NTSC 95, applied.

Criminal Code (NT) s 14

Interpretation Act (NT) s 12(c), s 12(d)

Sentencing Act (NT) s 78BA

CRIMINAL LAW — Sentencing — Mandatory sentencing provision repealed — Whether able to be sentenced under repealed provision — Whether defendant subject to a ‘liability’ under repealed provision — Whether liability to a punishment incurred before repeal — Held that liability incurred at time offence committed — Held that liable for sentence under previous provision.

STATUTORY INTERPRETATION — Transitional provisions — Sentencing — Whether Interpretation Act preserved penalties under repealed sections — Held that liability to punishment occurs at time offence committed — Held that penalties under repealed section apply to defendant.

REASONS FOR JUDGMENT

1 The defendant Scott Brancourt has pleaded guilty to a charge of aggravated assault against his wife, Bianca Brancourt, on 23 December 2012, contrary to s 188 of theCriminal Code.

2 As at the date of commission of the offence the provisions of s 78BA of theSentencing Act applied to a range of crimes of violence including the offence to which Mr Brancourt has pleaded guilty. It provided, in sub-section (2):

(2) If a court finds an offender guilty of an offence to which this section applies, the court must record a conviction and must order that the offender serve:

1. (a) a term of actual imprisonment; or

2. (b) a term of imprisonment that is partly, but not wholly, suspended.

3 That provision of theSentencing Act (indeed the whole of Part 3 Division 6A in which s 78BA was contained) was repealed by the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 which introduced a new Part 3, Division 6A containing a complicated mandatory sentencing regime for certain violent offences, including the offence to which the defendant has pleaded guilty. The amending Act commenced on 1 May 2013: it also introduced into the Sentencing Act a new s 78EA which provides:

This Division does not apply in relation to an offence committed before the commencement of s 6 of theAmendment (Mandatory Minimum Sentences) Act 2013. (ie 1 May 2013)

There are no other transitional provisions.

4 As the offence to which the defendant has pleaded guilty was committed before 1 May 2013, the Crown argues that the old s 78BA applies. The Defence on the other hand contends that s 78EA creates a lacuna: s 78BA has been repealed and the new Division 6A is stated not to apply, therefore there are no mandatory sentencing provisions applicable to this offence.

5 The Crown relies on s 12(c) and (d) of theInterpretation Act which provide:

The repeal of an Act or part of an Act does not:

………..

(c) affect a right, privilege, obligation or liability acquired, accrued or incurred under an Act or the part of the Act so repealed, or an investigation, legal proceeding or remedy in respect of that right, privilege, obligation or liability; or

(d) affect a penalty, forfeiture or punishment incurred in respect of an offence against the Act or part of the Act so repealed, or an investigation, legal proceeding or remedy in respect of that penalty, forfeiture or punishment,

and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and a...