Idai v Malogorski

Case [2011] NTSC 102

Idai v Malogorski [2011] NTSC 102

PARTIES:   IDAI, Eric

v

MALOGORSKI, Mark Anthony

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:   JA 22 of 2011 (21104209)

DELIVERED:   14 December 2011

HEARING DATE:   28 September 2011

JUDGMENT OF:   BARR J

APPEAL FROM:   MORRIS SM

CATCHWORDS:

APPEAL – Sentencing – totality principle – concurrency/cumulation of sentences – whether s 127(7) Domestic and Family Violence Act imposes a mandatory requirement on court to order term of imprisonment for a DVO offence to be served cumulatively with any other sentence

APPEAL – Sentencing – manifest excess – whether sentences imposed were disproportionate to the objective circumstances of the offending

Domestic & Family Violence Act s 121(6) and (7)

Interpretation Act s 62B

Sentencing Act s 50

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297, followed

Cahyadi v The Queen (2007) 168 A Crim R 41; Hampton v The Queen [2008] NTCCA 5; Hoare v The Queen (1989) 167 CLR 348; Miles v R [2001] NTCA 9; Mill v The Queen (1988) 166 CLR 59; Veen v The Queen (No 2) (1988) 164 CLR 465, considered

REPRESENTATION:

Counsel:

Appellant:   L Bennett

Respondent:   T McNamee

Solicitors:

Appellant:   Northern Territory Legal Aid Commission

Respondent:   Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:   Bar1114

Number of pages:   19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Idai v Malogorski [2011] NTSC 102

No. 22 of 2011 (21104209)

BETWEEN:

ERIC IDAI

Appellant:

AND:

MARK ANTHONY MALOGORSKI

Respondent:

CORAM:     BARR J

REASONS FOR JUDGMENT

(Delivered 14 December 2011)

Appeal against severity of sentence

  1. On 28 June 2011 the appellant pleaded guilty to and was sentenced in relation to five offences.  The offending conduct had occurred on 2 and 3 February 2011.  Three of the offences were charged on information and two on complaint.  In chronological order, that is, in the order in which the offences were committed, the offences and brief details of offending are as follows:

Date and time

Details of the offence

2 February 2011, late afternoon and evening

Count 2 - Administration to himself of a dangerous drug (cannabis) contrary to s 13 of the Misuse of Drugs Act

2 February 2011, late evening

Count 4 – Contravention of a Domestic Violence Order contrary to s 120(1) of the Domestic and Family Violence Act, constituted by swearing at the victim and calling her a slut.

3 February 2011, just prior to 1.00 am

Count 5 – Contravention of a Domestic Violence Order contrary to s 120(1) of the Domestic and Family Violence Act, constituted by kicking and banging on the bedroom door.

3 February 2011, at 1.00 am

Count 1 - Aggravated assault (male/female) contrary to s 188(2) of the Criminal Code, constituted by pouring dirty bong water over the victim and a short while later tipping flour…

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AGLC
Idai v Malogorski [2011] NTSC 102
Case
[2011] NTSC 102
Decision Date

CaseChat Overview and Summary

The appellant, Idai, appeals against his conviction and sentence imposed by a magistrate. The appellant was convicted of multiple counts of domestic violence-related offences, including breaches of a domestic violence order (DVO) and assault. The primary dispute in this appeal concerns the sentencing of the appellant by the magistrate. Specifically, the appellant challenges the magistrate's application of the totality principle and the cumulative nature of the sentences imposed. The appellant also contends that the sentences imposed were manifestly excessive.

The central legal issues in this appeal are whether the magistrate correctly applied the totality principle in sentencing and whether the sentences imposed were disproportionate to the objective circumstances of the offending. The appellant argues that the magistrate erred in ordering the sentences to be served cumulatively rather than concurrently and that the cumulative sentences resulted in a manifest excess in the overall sentence. The appellant contends that the sentences imposed were excessive considering his age and the nature of the offences.

In considering the appeal, the court examined the magistrate's application of the totality principle, which requires that the overall sentence should not be excessive in relation to the objective circumstances of the offending. The court noted the appellant's extensive history of domestic violence and his multiple prior breaches of DVOs. The court found that the magistrate appropriately considered the totality of the appellant's offending and the need to deter and protect the community. The court also determined that the sentences, while cumulative, were proportionate to the seriousness of the offences and the appellant's criminal history. Consequently, the court dismissed the appeal.

The court affirmed the sentence imposed by the magistrate and found no error in the application of the totality principle or in the proportionality of the sentence. The appeal was dismissed, and the original sentence stands.

Orders

Orders of the court

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Background

Background to the litigation

The period of restraint imposed by the DVO was 12 months from 26 March 2010. There was no issue that the DVO applied to the appellant at the time of his offending in February 2011. Facts The appellant was almost 41 years old as at February 2011. The magistrate noted that his criminal record included some seven prior breaches of domestic violence orders dating back to 2001. Her Honour noted as well an extensive history of convictions for assaults. Prior to the events in question, the appellant and the victim had been in a relationship for three to four years. Throughout that time there had been acts of violence towards the victim by the appellant. In the afternoon of Wednesday 2 February 2011, the appellant acquired some cannabis plant material and returned to the victim’s residence in the Umbakumba community. The appellant admitted to police that he self-administered the cannabis on some eight or nine occasions that afternoon and evening (Count 2). The appellant behaved that evening in an abusive manner towards the victim, accusing her of having had sexual relations with other men and calling her a ‘slut’ (Count 4). Just prior to 1.00 am on 3 February 2011, the victim locked herself in the bedroom and the appellant stood at the door kicking and banging and demanding that she open the door (Count 5). Eventually the victim opened the door and sat on a mattress on the floor. The appellant picked up a bong he had used earlier to self-administer cannabis and threw the liquid contents of the bong over the victim. The appellant then left the room and located a tin containing flour. He returned to the room and emptied the flour tin over the victim (Count 1). The appellant then threw the tin down in front of the victim and left the house. At about 10.00 am in the morning of 3 February, the appellant returned home and a further argument developed between the appellant and the victim about making tea. The appellant shouted at the victim and became angry that she appeared to be ignoring him. He reached out with his right hand, grabbed her chin, and squeezed her cheeks to force her to face him (Count 3). The magistrate convicted the appellant on all counts and sentenced the appellant, starting with the two DVO contraventions, in the following order: on count 4, five months imprisonment; on count 5, five months imprisonment cumulative on the sentence imposed on count 4; on count 1, five months imprisonment cumulative on the sentence imposed on count 5; on count 3, five months imprisonment concurrent with the sentence imposed on count 1. The magistrate fined the appellant $200 on count 2. The effective head sentence for all counts was a term of imprisonment of 15 months, with a non parole period of 10 months, to be served cumulatively on the term of imprisonment (due to end on 29 August 2011) the appellant was then serving for another matter.[1] Issues on appeal The appellant appeals to this Court on two grounds: 1. The learned Magistrate erred in her application of the totality principle; and 2. The sentence imposed was manifestly excessive.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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