Emitja v The Queen [2016] NTCCA 4
PARTIES: EMITJA, James
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA 15 of 2015 (21419050)
DELIVERED: 21 October 2016
HEARING DATES: 20 July 2016
JUDGMENT OF: GRANT CJ, KELLY and BARR JJ
APPEALED FROM: SOUTHWOOD J
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether sentence was manifestly excessive having regard to the circumstances of the offending and the appellant – the exercise of the sentencing discretion having regard to the protection of society clearly permissible provided that the purpose not simply preventative detention and provided that sentence does not go beyond what is proportionate to the crime – appellate court interferes only if error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence – incumbent on the appellant to show that the sentence was not just excessive but manifestly so – function of appellate court to minimise disparities of sentencing standards while maintaining the reasonable and just area of discretion of sentencing judge – sentencing standard not a fixed range departure from which will necessarily found demonstrable error – the absence of a factor which would elevate the seriousness of the offending not a matter of mitigation – not established that the sentencing judge acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence – not established that the sentence was clearly and obviously excessive – appeal dismissed
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether sentencing judge erred in failing to set a non-parole period – court may only determine not to fix a non-parole period if it would be inappropriate to fix a non-parole period having regard to the nature of the offence, the past history of the offender or the circumstances of the particular case – appellant’s moral culpability for offending was very high – considerations of deterrence and community protection attracted a particular weighting at that stage of the process – prospects of rehabilitation bleak given extensive criminal history – neither necessary nor desirable for the appellant to be released after some minimum period of imprisonment had been served – not shown that discretion miscarried in determining that the fixing of a non-parole period was inappropriate – appeal dismissed
Criminal Code ss 177, 181, 429
Sentencing Act (NT) ss 5, 53Albert v The Queen [2009] NTCCA 1, Veen v The Queen (No 2) (1988) 164 CLR 465, applied
AB v The Queen (1999) 198 CLR 111, Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998), Bugmy v The Queen (1990) 169 CLR 525, Bulmer & Ors (1987) 25 A Crim R 155, C v Gokel [1999] NTSC 93, Channon v The Queen (1978) 20 ALR 1, Cheung v The Queen (2001) 209 CLR 1,
Continue reading Emitja v The Queen
Sign in free to access the full text
- AGLC
- Emitja v The Queen [2016] NTCCA 4
- Case
- [2016] NTCCA 4
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge erred in failing to set a non-parole period. The appellant contended that the sentence did not adequately reflect the circumstances of the offending and the appellant himself, and that the exclusion of a non-parole period was inappropriate.
The Court affirmed that an appellate court should only interfere with a sentencing discretion if the sentencing judge acted on a wrong principle or misunderstood or wrongly assessed a salient feature of the evidence. The Court found that the sentencing judge had properly considered the objectives of punishment, deterrence, and the protection of the community, particularly in light of the appellant's high moral culpability, the serious nature of the domestic violence offence, and the victim's injuries. The Court also noted that the appellant's extensive criminal history and bleak prospects of rehabilitation supported the decision not to fix a non-parole period, as it was neither necessary nor desirable for the appellant to be released after serving a minimum period. The Court concluded that the appellant had not established that the sentence was clearly and obviously excessive or that the discretion miscarried.
Consequently, the appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: GRANT CJ
It was this course of conduct to which the sentencing judge was referring when he observed:The offending is once again a very serious incident of domestic violence committed by the offender. The offender’s moral culpability for this offending is very high. The offender engages in domestic violence in order to control the victim and to express his displeasure when she does not behave in a manner that he expects her to behave. The offence was committed while [the offender was] subject to [a] DVO once again. The victim was seriously injured.The main sentencing objectives are punishment, deterrence and protection of the victim. The offender must be severely punished and he and others must be discouraged from engaging in the same or similar conduct in the future. The community strongly disapproves of such conduct.The offender must learn that women are not required to do what men tell them to do. Women are entitled to lead dignified lives free from such violence.Considerations relevant to fixing the head sentence The only legitimate purposes for the imposition of a sentence on an offender are just punishment, rehabilitation, personal and general deterrence, the expression of community disapproval, and the protection of the Territory community from the offender.[3] The protection of the public is both “an overall umbrella identifying the purpose of all of the different elements traditionally listed as matters to which consideration must be given in the exercise of a sentencing discretion”,[4] and a separate and individual goal or purpose of the imposition of sentence.[5] Within that matrix the protection of the community will take precedence over offender rehabilitation, unless those goals are mutually achievable.[6] In R v Wurramara,[7] this Court observed that, “[t]he courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so”.[8] In making that observation, the Court cited what was said by Kearney J in Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998) in the following terms:The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased. As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities. While it may be accepted that some Aboriginal communities have an unusually high incidence of serious crimes of violence, and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence, Aboriginal women and children living in those communities “are entitled to equality of treatment in the law’s responses to offences against them”.[9] The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature. As Martin (BF) CJ observed in Najpurki v Luker:[10]Until such time as it is demonstrated to me that people who are minded to take up a weapon with a view to assaulting some person with whom they have a grievance are not deterred by the knowledge that others who have done similar things have spent time in gaol, then the element of general deterrence remains a meaningful factor in the sentencing process for such offences. If it is emphasised by the courts often enough and firmly enough then the message must start to get through, or be reinforced, that the community and individuals within it will be to some extent relieved of the threats, the real tragedy and distress caused by assaults with offensive weapons.