Edmond and Moreen v The Queen

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CITATION:Edmond and Moreen v The Queen [2017] NTCCA 9

PARTIES:EDMOND, Malcolm & MOREEN, Mark James

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:No. CA 2 of 2017 (21601340 & 21601341) & CA 14 of 2016 (21563377 & 21601324)

DELIVERED:  29 August 2017

HEARING DATES:  7 June 2017

JUDGMENT OF:  Grant CJ, Blokland and Hiley JJ

APPEALED FROM:  Kelly J

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT

Whether sentences manifestly excessive having regard to the circumstances of the offending and the appellants – determination of objective seriousness influenced by the need to protect vulnerable members of the community including taxi drivers – stealing from taxi driver at night time considered towards the higher level of seriousness – both appellants considered to have poor prospects of rehabilitation – sentence not manifestly excessive – appeal dismissed.

Sentencing Act (NT) s 5, s 6.

Dinsdale v The Queen [2000] HCA 54, Emitja v The Queen [2016] NTCCA 4, Veen v The Queen (No 1) (1979) 143 CLR 458, Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465, applied.

Bara v The Queen [2016] NTCCA 5, Baumer v The Queen (1988) 166 CLR 51, Dinsdale v The Queen (2000) 202 CLR 321, Director of Public Prosecutions v Ottewell [1970] AC 642, Hoare v The Queen (1989) 167 CLR 348, Kuvanci v Scott [2004] ACTSC 16, Morrow v The Queen [2013] NTCCA 7, R v Anthony [2013] QCA 95, R v Devine (unreported, Tasmanian Court of Criminal Appeal, Cox, Crawford, Zeeman JJ, 22 December 1992), R v Dodd (1991) 57 A Crim R 349, R v Ellis (1993) 68 A Crim R 449, R v Gannon [2009] SASC 73, (2009) 103 SASR 398, R v Hamilton [2009] QCA 391, R v Lee [2006] VSCA 80, R v Rushby [1977] 1 NSWLR 594, R v Yousef (2005) 155 A Crim R 134, R v Jones (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Lee CJ at CL and Smart J, 2 March 1991), Woods v The Queen [1999] WASCA 299, referred to.

Phan v Western Australia [2014] WASCA 144, followed.

Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thompson Reuters, 3rd ed, 2014)
Australian Law Reform Commission, Same Crime Same Time: Sentencing of Federal Offenders, Report No 103 (ALRC, 2006)

REPRESENTATION:

Counsel:

Appellant Moreen:  JCA Tippett QC

Appellant Edmond:  P Bellach

Respondent:  WJ Karczewski QC, Director of Public Prosecutions

Solicitors:

Appellant Moreen:  Northern Territory Legal Aid Commission

Appellant Edmond:  Pipers Barristers and Solicitors

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  38

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Edmond and Moreen v The Queen [2017] NTCCA…

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Details
Case
[2017] NTCCA 9
Decision Date

CaseChat Overview and Summary

Edmond and Moreen appealed their sentences for stealing from a taxi driver. The appellants, Edmond and Moreen, were convicted of stealing from a taxi driver during the early hours of 17 October 2015. The incident involved the appellants being picked up by the victim, behaving aggressively, refusing to pay the fare, and subsequently stealing money from the driver's wallet and the taxi's console. The appeal was heard by Grant CJ, Blokland and Hiley JJ.

The central legal issue before the court was whether the sentences imposed on the appellants were manifestly excessive, considering the circumstances of the offending and the personal circumstances of each appellant. This required the court to assess the objective seriousness of the offence, taking into account factors such as the need to protect vulnerable members of the community, the fact that the theft occurred at night from a taxi driver, and the appellants' prospects of rehabilitation.

The court affirmed that the assessment of whether a sentence is manifestly excessive involves considering the maximum penalty, the offence's place on the scale of seriousness, customary sentencing standards, and the offender's personal circumstances. The court rejected the appellants' argument that the sentence was excessive due to the relatively small amount stolen, finding that the gravamen of the offence lay in the confrontation with a vulnerable individual providing a public service at night. The court also addressed the submission that the appellants' criminal histories were improperly used as an aggravating factor, clarifying that while a criminal history can influence considerations of deterrence and community protection, it should not lead to a sentence exceeding that appropriate for the instant offence. The court found that the sentencing judge had correctly considered the objective seriousness of the offence and the appellants' poor prospects of rehabilitation, concluding that the sentence was not manifestly excessive. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

These sentiments have been expressed by the courts in all Australian states and territories.[6]Relevant facts The sentencing judge made the following findings in relation to count 1:On 16 October 2015 you two were drinking together and you were both drunk. That night, the first victim was working a night shift driving a taxi.In the early hours of the morning on the next day, 17 October 2015, the victim picked you both up from the One Mile Dam Community. You asked him to take you to an address in Driver in Palmerston. You told him that neither of you had any money but that a family member would pay for the fare when you got to the Palmerston address.The victim agreed to take you there and you both got into the taxi. Mr Edmond, you sat in the front passenger seat, and Mr Moreen, you sat in the back seat. While the victim was driving, you both behaved badly. You harassed the driver by smoking and distracting him while he was driving.The victim was uncomfortable with your behaviour, so he pulled into the Caltex Service Station at Berrimah knowing that there were CCTV cameras there. At this point both of you verbally abused the victim. He told both of you that he would not drive you any further because you were being aggressive towards him. He asked you to pay the fare on the meter, which was $40, and you both refused to pay.Mr Moreen, you got out of the back seat, went up to the driver’s side window and argued with the victim. While this was going on, Mr Edmond, you were still in the front passenger seat. You continued to distract the victim by arguing with him and rummaging through the centre console.Presumably it was at this stage that you stole a bag of coins from the centre console. Then you got out of the front passenger seat and went around to where Mr Moreen was standing. By this stage, the driver’s side door was open. While Mr Edmond distracted the driver, Mr Moreen, you stole his wallet from the storage pocket on the driver’s side door. One of you gave the victim $20 and both of you walked away.After you had both left, the victim realised that his wallet with his night’s takings of $400 was missing as was a bag of coins in a clipseal bag that had about $60 in it. That had been taken from the centre console. He phoned police and they arrived about 20 minutes later.Meanwhile, the two of you walked to Knuckey’s Lagoon Camp to visit family.Mr Edmond’s subjective circumstances Mr Edmond was born on 12 December 1993. His parents separated when he was seven years old. His father lives in Belyuen and his mother in Palmerston. He left school during year 8 and did some stock work on properties and other work as a construction worker. When Mr Edmond was about 15 years old a number of close relatives died, including a sister, a cousin-brother and his stepfather. He started using cannabis and alcohol at or about that time, and started engaging in offending behaviours. He did volunteer work with the Riding for the Disabled Centre as part of a program offered at Don Dale, and was said to be hard-working and respectful when he was there. He has also done some training in conservation and land management.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRANT CJ

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Ratio Decidendi

Legal Principle Established

Established by: GRANT CJ

Regrettably, offending against taxi drivers in circumstances such as these is prevalent.Consideration As the Court of Appeal of Western Australia said in Phan v Western Australia:[7] Whether a sentence is manifestly excessive requires a consideration of the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[8] Counsel for the appellants pointed out that the starting point of the sentence before the 20 per cent discount was two years and six months, almost 36 per cent of the maximum penalty of seven years’ imprisonment. They contended that sentence was manifestly excessive for stealing in an amount of less than $500. Counsel for the appellants also pointed out that most sentences imposed in the Local Court and in the Supreme Court for stealing relatively small amounts of money are significantly lower than the sentence imposed in the present case. However, those sentences to which reference was made during the conduct of the appeal were indicative sentences in relation to the stealing component of multiple counts involving stealing, break and enter with intent to steal, and unlawful damage to property. In cases such as that, the particular circumstances concerning the stealing count are largely subsumed by the circumstances involved in the more serious counts of break and enter and unlawful damage to property. Moreover, for the reasons already detailed, the stealing offences in that type of matter do not involve the aggravating features that exist in the present matter. The respondent’s submission that the amount stolen was not the gravamen of this offending should be accepted. Although that amount was no doubt significant relative to the victim’s income that night, the gravamen of the offending was that the property was stolen during a confrontation with a vulnerable person working alone at night providing a necessary service to the public. Counsel for Mr Moreen, whose submissions in this respect were adopted by counsel for Mr Edmond, contended that the sentencing judge’s starting point of almost 36 per cent of the maximum penalty implies that inappropriate weight was given to Mr Moreen’s criminal history. In other words, that criminal history was erroneously used as an aggravating factor over and above the sentence appropriate for this particular offending. That submission stressed the overriding requirement for proportionality; namely that the sentence not exceed what is commensurate with the gravity of the crime being punished. The operation of that principle is not in question. Absent contrary statutory direction, it is not permissible to punish offenders more severely than the offence itself warrants on account of criminal history. Although an offender’s criminal history and propensity to commit similar crimes may tend against mitigation, and may elevate the weight attributed to personal deterrence and community protection in the sentencing calculus, it cannot increase the sentence beyond what is appropriate for the instant offence.[9]