Ellis v McKinney & Ors [2006] NTSC 31

PARTIES: ELLIS, Donna Mary

v

McKINNEY, Tania Louise
BRENNAN, Michael David
TUDOR-STACK, Paul Francis
MALOGORSKI, Mark
SIMMS, Erica Ann

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: JA51 – 66 of 2005, 20422471, 20429972, 20500317, 20500318, 20500338, 20500349, 20500352, 20501450, 20501453, 20501454, 20503834, 20503839, 20504754, 20505775, and 20503837

DELIVERED: 7 April 2006

HEARING DATES: 22 March and 7 April 2006

JUDGMENT OF: THOMAS J

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: P Saraf
Respondent: J Duguid
Solicitors:
Appellant: Northern Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: tho200605
Number of pages: 7


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

Ellis v McKinney & Ors [2006] NTSC 31
JA51-66 of 2005

BETWEEN:

ELLIS, Donna Mary
Appellant

AND:

McKINNEY, Tania Louise
First Respondent

BRENNAN, Michael David
Second Respondent

TUDOR-STACK, Paul Francis
Third Respondent

MALOGORSKI, Mark
Fourth Respondent

SIMMS, Erica Ann
Fifth Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 7 April 2006)

[1] At the commencement of the hearing of this appeal, counsel for the respondents, Mr Duguid, conceded that the appeal should be allowed. He further sought an order pursuant to s 177(2)(d) of the Justice Act that the matter be remitted to the Court of Summary Jurisdiction before the same magistrate to re-sentence the appellant.

[2] Ms Payal Saraf, who represented the appellant, stated that she was in agreement with the orders proposed by counsel for the respondents.

[3] The basis for the respondents’ concession, is for reasons other than those contained in the appellant’s notice of appeal. It relates to matters Mr Duguid uncovered in the course of preparing the respondents’ case for the appeal.

[4] There are essentially two matters:

[5] The first Prelates to offences on the Court of Summary Jurisdiction file 20505775. The complaint on this file refers to five offences under s 10 of the Domestic Violence Act. The complaint, copy of which is attached to these reasons for judgment, show that Count 4, an allegation of an offence on 28 February 2005, is incomplete.

[6] From a reading of the transcript of 13 April 2005, an allegation of offending on 28 February 2005 was never put to the appellant. No plea was taken with respect to that particular charge. Transcript pages 7 and 8 of 13 April 2004 is where pleas of guilty are entered to the other four charges on file 20505775. On the same date the prosecutor read the facts in support of the allegation of offending on 28 February 2005 as follows (tp 19-20):

“Then on 28 February 2005, at 1:33 am, ‘Hello, hello. I need to talk to you. I’ll ring you up on my next number. I’m not gonna be here, bub, I’ll buy some tucker for the kids tomorrow. I’m not gonna go back and visit the kids cause it’s too much. Thank you for whacking me on the head.
Then 1:35 am. “Well Snake not that I hate you, but I just wanted you. And yes, I am getting another job, I’m getting out of town soon just fucken listen Snake, I’m sorry for being such a bitch when I have, I just want my kids, my fucken babies I’ll be better. I miss my Minnie.’
At 1:40 am. ‘Snake, I know you’ve been out there to Palmerston looking for the kids to help look after them. I know you went out there lookin for fucken tucker. If you want me help you with fucken tucker, please stop treating me like shit. I will help you, I’ll fucken help you.’
At 1:42 am ‘Stop acting like your really smart man, because your not bub. I just wanna go and fucken send you some money to buy some stuff. I can’t give you the money, I just want to buy some stuff. I just put some stuff in for the kids. I’m sorry, but at the moment I’m going back to work. I’m leaving today on the bus. I’ll send you some money for the kids. I’m sorry I fucken love you Snake. I’m just fucken fucked.”

[7] These facts were admitted and formed the basis on which this offence was found proved and the appellant convicted and sentenced.

[8] Mr Duguid, for the respondents, agrees that in these circumstances the conviction on Count 4 on file 20505775 being an offence alleged to have occurred on 28 February 2005, should be quashed. This Court was advised that the respondents would not be seeking to put forward again, the facts in support of this charge, and sought to withdraw the charge. Accordingly, this charge is withdrawn and dismissed.

[9] The second matter, which formed the basis of the respondents’ concession that the appeal be allowed, related to information that was given to the learned stipendiary magistrate as to the amount of time the appellant had spent in custody, prior to the time she came to be sentenced for these offences on 18 August 2005.

[10] The learned stipendiary magistrate was informed on 18 August 2005 (tp 9) that the appellant had spent between 20 – 30 days in custody, on remand, prior to 18 August 2005. His Honour, in sentencing the appellant, proceeded on the basis that she had previously spent 21 days in custody, which time was to be taken into account.

[11] Mr Duguid, counsel for the respondents, has provided this Court with information from custodial records showing that the appellant had spent 59 days in custody prior to the sentence which was imposed on 18 August 2005.

[12] It was conceded by counsel for the respondents, that this may have affected the period of the suspended sentence or in some other way affected the sentences that were imposed.

[13] It is for these reasons I make the following orders with the consent of counsel for the appellant and counsel for the respondent.

1. The appeal is allowed.

2. Pursuant to s 177(2)(c) of the Justices Act, I order that the sentences imposed by Mr David Loadman SM (in the proceedings which are the subject of these appeals) be quashed.

3. To the extent that Count 4 (relating to an incident on 28 February 2005 in proceeding number 20505775) was ever properly laid, that charge is dismissed.

4. Pursuant to s 177(2) of the Justices Act, the proceedings be remitted to the learned stipendiary magistrate for re-sentencing on all charges (apart from Count 4 in proceeding number 20505775).

5. The parties are given liberty to apply.

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