Kelly v Brennan [2006] NTSC 80

PARTIES: KELLY, Andrew Raymond


BRENNAN, Michael David



FILE NO: JA 37 of 2006 (20606088)

DELIVERED: 11 October 2006

HEARING DATE: 11 October 2006


APPEAL FROM: Court of Summary Jurisdiction order,
Mr V. Luppino SM, 5 July 2006


Appellant: C McAlister
Respondent: A Nobbs-Carcuro

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

Judgment category classification: C
Judgment ID Number: ril0614
Number of pages: 5


Kelly v Brennan [2006] NTSC 80
No JA 37 of 2006 (20606088)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against an order handed down in the Court of Summary Jurisdiction at Darwin


KELLY, Andrew Raymond


BRENNAN, Michael David



(Delivered 11 October 2006)

[1] On 5 July 2006 the appellant pleaded guilty to a number of firearms charges arising out of events which took place on 22 December 2005. The facts placed before the Court of Summary Jurisdiction were as follows:

“On 22 December 2005 police received informant information that a male occupant of 28 Koolpinyah Crescent, Tiwi, was in possession of a stolen firearm. At 12.05 am on 23 December 2005 a search warrant was executed at the abovementioned premises. During the search warrant a bolt-action Howa .308 rifle with a serial number B100823 with a price tag attached to the trigger guard was located in the second bedroom under a sheet on a bed.

The rifle matched the description of property stolen the previous morning during an unlawful entry at Tex Gun Supplies located on the Stuart Highway, Winnellie. The rifle was subsequently seized and exhibited … The defendant, who was present at the time of the warrant of execution, was arrested and conveyed to the Darwin LPO where he participated in an electronic record of interview, during which time he claimed ownership of the firearm.

When asked if he had a firearms licence he replied: “No”. When asked why he had a firearm he replied: “Take it out to my mate’s outstation to go hunting”. When asked how he purchased the rifle he said: “$150 off an unknown person”. When asked had he made inquiries to see if the firearm was stolen he replied: “No”. When asked why the firearm was stored unsecured he replied: “I don’t have a licence to buy a safe”.

The rifle was later identified as being stolen from Tex Gun Supplies. At the time of the offence the .308 bolt-action rifle was classified as a category B firearm. At the time of the offence the offender was not the holder of a firearms licence and the rifle was stored in an unsecure location.”

[2] The appellant was convicted and sentenced to 21 days imprisonment, suspended after he had served seven days. An operational period of two years was imposed. The appellant now appeals against the sentence on the sole ground that the learned magistrate erred in failing to consider home detention properly, or at all, as an alternative to actual imprisonment.

[3] Reference to the transcript of the proceedings before the Court of Summary Jurisdiction makes it clear that not only did his Honour not specifically refer to the prospect of home detention but the issue was not raised with him by counsel. There was nothing put to him to suggest it would be worthwhile calling for a home detention report or indicating that the appellant would consent to the making of such an order. Notwithstanding the failure of counsel to raise the issue with his Honour, it was the submission on behalf of the appellant that the matter should have been addressed by the learned magistrate and that he fell into error by failing to consider home detention properly or at all as an alternative to full-time imprisonment.

[4] It was also submitted in writing that the appellant was before the court for his first firearm offence, he was a youthful offender being 21 years of age and he had accommodation with his grandmother in Parap.

[5] The mere fact that a sentencing magistrate does not refer to a particular disposition in ex tempore reasons delivered during the course of sentencing does not mean that the whole of the range of available dispositions has not been considered. As has been observed elsewhere, ex tempore remarks on sentence are not to be analysed as critically as the words in a considered reserve judgment. An appellate court is entitled to assume that a magistrate has considered all matters which are necessarily implicit in any conclusions he has reached. In this case the learned magistrate did not mention other dispositions and, in my view, it was not necessary for him to run through the whole gamut of available dispositions in order to reject them. The magistrate is a very experienced magistrate and, as Bailey J observed in Murrungun v Peach (JA 36 of 1997):

“Unless there is anything to suggest the contrary, this Court is entitled to presume that an experienced stipendiary magistrate both knew and applied appropriate sentencing principles. The fact that such a magistrate failed to refer expressly to every matter advanced by counsel does not mean that such a matter was either ignored or not given sufficient weight.”

Similar observations apply in circumstances such as the present. It is not necessary for courts, in passing sentence, to advert to all the penalties which they have the power to impose and to give reasons for selecting imprisonment rather than any other form of penalty: Napper v Samuels (1972) 4 SASR 63 at 74; Blacksmith v Materna (JA 21 and 22 of 1996 per Mildren J) and Wanambi v Thompson (1994) 120 FLR 243 at 264.

[6] In determining an appropriate sentence for the appellant it is clear that his Honour regarded personal deterrence as a significant factor. He made reference to the criminal history of the appellant which he described as “woeful” and went on to say:

“I’m not going to imprison him because of his record. What his record tells me is that he hasn’t learnt from the charges that he has had in the past and it tells me that some specific deterrence has to be reflected here because what we have here is two years after he has been dealt with for a breach as well as for a stealing offence he is committing another offence of dishonesty, this time buying a cheap high-powered rifle.”

[7] His Honour made it clear to counsel that he was considering actual imprisonment and invited submissions directed towards the suspension of the whole or part of that sentence. Following further submissions, his Honour said:

“All of my comments so far must indicate to you that I think that deterrence is a very major issue here, mainly specific deterrence, and again that all ties back to your record. The offence of unlawful possession is not the most serious of the dishonesty offences. Those would, of course, be the likes of the unlawful entry of premises and stealing which your record is littered with. Nonetheless it’s an offence which carries a term of imprisonment and in appropriate cases imprisonment has to be imposed. Deterrence here dictates that. … Deterrence doesn’t always require that a fully – a sentence fully to serve is imposed and I think in this case that a partial suspended sentence is appropriate as an aggregate penalty.”

[8] It is clear that his Honour considered alternatives to actual imprisonment including a wholly suspended term of imprisonment and there is nothing to suggest that he did not consider the prospect of suspending the sentence upon the making of an order for home detention or indeed on any other basis. The conclusion of his Honour was that a sentence of imprisonment, albeit partially suspended, was appropriate in the circumstances.

[9] I see no error. The appeal is dismissed.