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Law Society Northern Territory
Issue no. 1
Law Society Northern Territory
N O T I C E B O A R D L A W S O C I E T Y N T Cameron Fords Supreme Court case notes Detailed notes of all Supreme Court decisions are published on www.ntclr.org and in the Northern Territory Law Journal NEGLIGENCE OF ROAD AUTHORITIES In Kent v City of Darwin  NTSC 3, Barr J found the City negligent in failing to prune vines protruding through a fence 40cm from a cycle path. A cyclist had fallen and been badly injured when the handle bars of his bicycle became entangled in the vine. His Honour applied the test in Brodie v Singleton Shire Council (2001) 206 CLR 512 and found that the City was generally aware of the identified risk and that the risk could have been eliminated easily with no additional resources or cost. The City had a maintenance program which should have revealed the protruding vines but was inadequate in that it did not require the pruning of vine vegetation to the side of the cycle path. His Honour reduced damages by 30 per cent for the cyclists contributory negligence in not slowing from 20 km/h in the face of unsteady oncoming cyclists. His Honour awarded at total of $395 880 for pecuniary loss, non-pecuniary loss, Wilson v McLeay damages, gratuitous services, commercial services, special damages and interest. S E N T E N C I N G A F T E R E L E C T R O N I C M O N I T O R I N G O R R E H A B P R O G R A M S In R v Lovegrove  NTSC 2 at , Southwood J held that the court does not have power to backdate the commencement of a sentence of imprisonment for either the time an offender spends in the community on electronic monitoring under the provisions of s 27A(1) (iaa), (iab) or (ia) of the Bail Act (NT), or on bail on stringent conditions at a residential rehabilitation facility. However, a sentencing court may consider such matters and may because of them reduce a sentence of imprisonment which might otherwise have been imposed on an offender. A point of error will only occur if the accuseds bail conditions demonstrate that in substance the offender has already suffered a penalty of significance and the sentencing court fails to take this fact into account and reduce the sentence of imprisonment accordingly. His Honour said that those conditions did not amount to custody within the meaning of s 63(5) of the Sentencing Act (NT) giving the power to backdate sentences. Further, a sentencing court should very carefully consider whether an accused person should be granted bail to undertake a rehabilitation program before pleading guilty. Bail is not a sentencing option, nor should it be an alternative to sentence or treated as a deferred sentence. A sentencing court should be careful to avoid this kind of conflation which has the potential to result in disproportionally lenient sentences. http://www.ntclr.org