Jalloh v Macklin
[2012] ACTSC 99
•June 15, 2012
MOHAMED JALLOH v NATHAN DANIEL MACKLIN
[2012] ACTSC 99 (15 June 2012)
Crimes Act 1900 (ACT), s 24 (1)
House v The Queen (1936) 55 CLR 499
Kien v The Queen [2012] ACTCA 25
R v Campbell [2010] ACTCA 20
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 111 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 15 June 2012
IN THE SUPREME COURT OF THE )
) No. SCA 111 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MOHAMED JALLOH
Appellant
AND: NATHAN DANIEL MACKLIN
Respondent
ORDER
Judge: Burns J
Date: 15 June 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed and the sentence imposed by the learned Magistrate is confirmed.
In this matter the appellant Mohamed Jalloh committed an offence of assault occasioning actual bodily harm on 21 August 2011. On 31 August 2011 he entered a plea of not guilty to that charge in the ACT Magistrates Court. On 23 September 2011 he changed his plea to one of guilty in the ACT Magistrates Court. On 24 October 2011 a sentence hearing was not reached in the ACT Magistrates Court and ultimately the appellant was not sentenced until 11 November 2011. At that time the appellant was convicted and sentenced to two years imprisonment with a non-parole period of 18 months. That sentence was to commence on 21 August 2011.
On 22 November 2011 the appellant lodged an appeal against the sentence imposed by the learned Magistrate. I note that at the time he was sentenced in the ACT Magistrates Court and at the time that the appeal was lodged, the appellant was represented by a legal practitioner. However, by the time the appeal came on for hearing before me in this Court, the appellant was unrepresented.
The grounds of appeal as set out in the Notice of Appeal are:
i. Her Honour erred in imposing a sentence that in all of the circumstances was manifestly excessive.
ii. Her Honour erred by failing to give sufficient weight to the appellant’s prospects of rehabilitation.
I note that the second ground of appeal appears to be a particular of the first and does not appear to have alleged any error or fact or law as required by House v The Queen (1936) 55 CLR 499, therefore I proceed on the basis that the foundation of the appeal is an allegation that the sentence was manifestly excessive.
Recently, this Court in Kien v The Queen [2012] ACTCA 25 (Kien) referred to the matter of R v Campbell [2010] ACTCA 20 as setting out what is required when appealing against the manifest excess of a sentence. The Court in Kien said,
32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
46.The determination of whether a sentence is manifestly excessive is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Haynes J said in Dinsdale v The Queen ... must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245.
47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said that the court can – and should – draw the relevant conclusion.
The court went onto say:
33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
I note that the offence of assault occasioning actual bodily harm, of which the appellant was convicted, carries a maximum penalty of five years imprisonment under s 24 (1) of the Crimes Act 1900 (ACT).
The facts placed before the learned Magistrate reveal a serious case of assault occasioning actual bodily harm. The appellant punched and kicked his domestic partner to the head numerous times, causing an apparent loss of consciousness, extensive facial swelling, bruising, and a comminuted fracture of the right Zygomatic arch. The appellant also attempted to choke his partner, as well as hitting her over the head with a chair. Objectively, this was a very serious offence of this type.
The appellant has a history of violence. In January 2007 he was convicted of an offence of common assault. In August 2007 he was convicted of offences of assault with intent to rob and robbery in company. In December 2008 he was convicted of an offence of assault of occasioning actual bodily harm. I note that many of the sentences imposed upon the appellant with respect to those offences were sentences clearly designed to encourage the rehabilitation of the appellant and to address issues likely to lead to him re‑offending.
I have given very careful consideration to the sentence imposed by the learned Magistrate and the reasons given for imposition of that sentence. I have also given very careful consideration to the material which was put before the learned Magistrate and I find that the sentence imposed cannot said to be manifestly excessive, even taking into account the appellant’s history of mental disorder and exposure to violence in his youth.
I note that the learned Magistrate had a considerable amount of material before her concerning the appellant’s subjective features. It is quite clear in my view that her Honour gave sufficient weight to those subjective features and also to the question of the appellant’s prospects of rehabilitation.
Further material was put before me on the appeal with the consent of the Crown. The Crown quite properly acknowledged the fact that the accused was unrepresented in the course of the appeal and presented no barrier to the appellant placing that material before the Court. That material consisted of, firstly, a letter from the appellant dated 26 May 2012, which refers significantly to the background of the appellant and his hopes for the future. That material was similar to material which was put before the learned Magistrate in one form or another.
The second piece of material which was placed before me on the appeal was a Statement of Participation and Achievement Summary from the Alexander Maconochie Centre Education and Training Centre. That Statement showed that the appellant is in the process of completing a number of courses whilst he has been in custody, namely a Certificate 1 in Information Technology, a Construction White Card, and a Certificate 1 in General Education for Adults.
The third piece of material which was put before me was a letter dated 22 May 2012 by the general owner of a business called Telecommunications Experts, later identified as Mr Robert Senderowski. Essentially that letter stated that the appellant has a job opportunity with Mr Senderowski’s business in “Telecommunications expert maintenance”. Mr Senderowski attended to give evidence at the hearing of the appeal. I was not impressed with the evidence given by Mr Senderowski. I was firstly not impressed with his explanation as to why the Australian Business Number on the letter which he provided is shown as cancelled on a search of Australian Business Numbers in the Australian Capital Territory. Secondly, Mr Senderowski did not produce anything of substance to prove his business was operating and capable of employing the appellant.
However, even if I was satisfied on the material before me that there was a job opportunity for the appellant with Mr Senderowski, nothing in the material which was produced on the appeal in my opinion justifies me exercising my own discretion in imposing a sentence. In my opinion the sentence imposed by the learned Magistrate was not excessive, and indeed was just and appropriate for the offence committed by the appellant.
The appeal is dismissed and the sentence imposed by the learned Magistrate is confirmed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 21 June 2012
Solicitor for the appellant: The appellant appeared in person
Counsel for the respondent: Mr J Hixcox
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 8 June 2012
Date of judgment: 15 June 2012
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