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Law Society Northern Territory; PublicationNT; E-Journals




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Law -- Northern Territory -- Periodicals.; Law Society of the Northern Territory -- Periodicals.

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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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35 B A L A N C E M A R C H 2 0 1 8 S E N T E N C I N G P O O R P R O S P E C T S O F R E H A B I L I T A T I O N F I N D I N G In Witham v The Queen [2018] NTCCA 1, the Court of Criminal Appeal held that the sentencing judge was not in error to find that the appellant had very poor prospects of rehabilitation. The appellant had supplied cannabis to an Aboriginal community while on bail for possession of a trafficable quantity of cannabis. The Court of Appeal found at [27] that this more serious offending while on bail provided material on which the judge could properly base his finding. The re-offending in a more serious manner while on bail sets this matter apart from the majority of broadly comparable cases referred to us. Although the appellants previous convictions for cannabis-related offences were comparatively minor, he had been dealt with many times before the courts, indicative of a need for some emphasis to be placed on specific deterrence. S E N T E N C I N G M A N I F E S T LY E X C E S S I V E A N D C O M PA R A B L E S E N T E N C E S In Witham v The Queen [2018] NTCCA 1, the Court of Criminal Appeal held that an unusual non-parole period of 68 per cent of the head sentence was not necessarily indicative of manifest error. There were particular features calling for a strong sentence such as supplying cannabis to an Aboriginal community while on bail for in possession of a trafficable quantity of cannabis. DPP v Dalgliesh (a pseudonym) [2017] HCA 41 at [10] emphasises the importance of the maximum penalty as the yardstick and that that the principle of reasonable consistency as between sentences requires consistent application of relevant legal principles. Although comparable cases can illustrate the possible range of sentences, they do not define the range. Appellate intervention on the grounds of manifest excess is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude there must have been some misapplication of principle. SETTING ASIDE CONVICTION ON GUILTY PLEA In Henwood v Duggan [2018] NTSC 1, Kelly J refused to set aside convictions based on guilty pleas where the appellant said she had been induced to plead to allow her partner to go free. Her Honour applied the principles in Maxwell v The Queen (1996) 184 CLR 501 at 522 and Singh v The Queen [2014] NTCCA 16 that there must be a miscarriage of justice arising from, for example, a failure to understand the nature of the charge, a lack of intention to admit guilt, a legal impediment to being guilty, or an improper inducement, fraud or intimidation. The appellant was legally represented at the time she entered the pleas and at no time has she made any specific comment about being unwilling to plead.

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