Dixon v R [2006] NTSC 11

PARTIES: DIXON, Karl

v

THE QUEEN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 20414354

DELIVERED: 16 February 2006

HEARING DATES: 16 February 2006

EX TEMPORE JUDGMENT OF: RILEY J

CATCHWORDS:

CRIMINAL LAW - SENTENCING - ERROR IN SENTENCING -
INCORRECT INFORMATION PROVIDED – POWER OF COURT TO RE-OPEN SENTENCE – PROCEEDING NOT TO BE A GENERAL REHEARING OF SENTENCING PROCEEDING ON THE MERITS

Sentencing Act s 112

REPRESENTATION:

Counsel:
Applicant: D. Woodroffe
Respondent: J. Down

Solicitors:
Appellant: Northern Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: ril0602
Number of pages: 6

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

Dixon v R [2006] NTSC 11
No 20414354

BETWEEN:

DIXON, Karl
Applicant

AND:

THE QUEEN
Respondent

CORAM: RILEY J

EX TEMPORE
REASONS FOR JUDGMENT

(Delivered 16 February 2006)

[1] On 26 July 2005 Karl Dixon pleaded guilty to an offence of unlawfully causing grievous harm to Cedric Daly on 28 May 2004. At the time of sentencing I was told that Mr Dixon had been born on 1 December 1988 and that he was 15 years old at the time of the offending. He was 16 at the time he came before me.

[2] The offence involved an attack upon the victim with a “fire stick” which was one metre in length and had the diameter of a 50 cent piece. The victim was struck about the head and beaten until he was unconscious. He suffered serious injuries and was eventually treated in Royal Adelaide Hospital. He was, at the time of sentencing, back at home but suffering from permanent consequences from the assault.

[3] Subsequent to that offending Mr Dixon had been dealt with by another court for a vicious assault upon his wife in relation to which he was sentenced to detention for a period of four months. That was a subsequent offence but relevant for the purposes of considering prospects for rehabilitation.

[4] Mr Dixon displayed no remorse in relation to his offending and had little understanding of his problem with alcohol. His prospects for rehabilitation were assessed as limited.

[5] In sentencing Mr Dixon I observed that I was mindful of his age and the desirability of keeping him out of an adult prison. In light of the information provided to me I understood that he would be turning 18 on 1 December 2006 and I structured a sentence to ensure that he would be free before that date. He was to remain under supervision for three years from the date of release. I sentenced him to detention for a period of three years, to be released after 16 months, backdated to commence on 16 June 2005.

[6] I have now received an affidavit from the legal practitioner who represented Mr Dixon on that occasion and in that affidavit it is revealed that Mr Dixon was not born on 1 December 1988 but, rather, 14 March 1988. A copy of his birth certificate was provided. The effect of that information is that Mr Dixon will be transferred from the Don Dale Juvenile Detention Centre to the Darwin Correctional Centre on or about 14 March 2006. As both counsel for Mr Dixon and counsel for the Crown emphasise in their submissions to me, the transfer of Mr Dixon to an adult prison is contrary to the carefully structured sentence imposed on 26 July 2005.

[7] The matter is brought back before me pursuant to the terms of s 112 of the Sentencing Act which permits a court that has imposed a sentence that is not in accordance with the law or has failed to impose a sentence that the court legally should have imposed to reopen the proceedings and impose “a sentence that is in accordance with the law”.

[8] In effect I am being asked to utilise that provision to reduce the term of detention that is to be actually served by Mr Dixon by some months. The first question to be resolved is whether the matter can be dealt with under s 112 of the Act. Pursuant to s 112(3)(a) the Court can reopen proceedings on its own initiative at any time. The power to correct the sentence is contained in s 112(1) which is in the following terms:

“(1) Where a court has in, or in connection with, criminal proceedings (including a proceeding on appeal) –

(a) imposed a sentence that is not in accordance with the law; or

(b) failed to impose a sentence that the court legally should have imposed,

the court (whether or not differently constituted) may reopen the proceedings unless it considers the matter should more appropriately be dealt with by a proceeding on appeal.”

[9] There is no suggestion that the circumstances of this matter fall within the ambit of s 112(1)(a) as it is clear that the sentence imposed is in accordance with the law. The issue is whether or not I can address the difficulties that have arisen in this matter on the basis that the Court has “failed to impose a sentence that the Court legally should have imposed”.

[10] Section 112 has been considered in a number of cases in the Northern Territory and similar provisions have been considered in other jurisdictions. In Staats v The Queen (1997-1998) 123 NTR 16 the application of the provision was considered by the Court of Criminal Appeal. The case involved an error of law in the application of a provision of an Act. In the course of his judgment Angel J stated that s 112 was “somewhat akin to a slip rule” and that it:

“… at least includes errors of law. It may well include judicial oversight of a fact obviously material for sentencing purposes, ie in a case where the Court makes clear findings of fact, plainly applies the correct law to those facts, but overlooks a further fact which, had it be taken into account, would obviously have affected the result”.

[11] In Ho v Director of Public Prosecutions (NSW) (1994-1995) 37 NSWLR 393 Kirby P as he then was (with whom Gleeson CJ and Sheller JA agreed) discussed the equivalent provision in the New South Wales legislation where proceedings were able to be reopened where the court imposed a penalty that was “contrary to law”. Kirby P described the provision as remedial legislation and observed that it should “not be subjected to a narrow construction”. The advantage of such legislation is to correct mistakes of a simple kind without the necessity for the matter to be referred to a court of appeal. The provision did not permit a general rehearing of sentencing proceedings on the merits but otherwise, according to Kirby P, “should be given the widest possible operation” for “the correction of arguable mistakes in sentencing”. Kearney J (with whom Martin CJ and Priestley J agreed) approved of those observations in Melville v The Queen (1999) 107 A Crim R 70. I also agree that the provision should be given a wide operation enabling mistakes to be corrected without incurring the cost, delay and inconvenience of employing the appeal process.

[12] In my view the application of s 112(1)(b) is sufficiently wide to enable me to deal with the problem that has arisen in this case. In sentencing Mr Dixon I formed, and expressed, a view as to the sentence that the Court should legally have imposed. In so doing I relied upon information provided to me by counsel which subsequently turned out to be incorrect. This is not a case of permitting a “general rehearing of sentencing proceedings on the merits” but, rather, is “the correction of arguable mistakes in sentencing”: Ho v DPP (NSW) (supra). The error occurred at the time of imposing the sentence and it is clear that, but for the misinformation provided, the sentence would have been differently constructed.

[13] Counsel for Mr Dixon and counsel for the Crown join in urging me to amend the sentence to accord with the original intention. I propose to do so.

[14] In the circumstances and consistent with the intention at the time of the original sentencing I propose to reopen the sentence and amend it so as to provide that the term of detention will be suspended on 13 March 2006. The balance of the sentence shall remain in its original form.
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