Mamarika v Rourke - [2016] NTSC 51

Mamarika v Rourke [2016] NTSC 51
PARTIES:MAMARIKA, Travis
v

ROURKE, Josette Lisa

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 53 of 2015 (21521584)
DELIVERED:  30 September 2016
HEARING DATE:  26 August 2016
JUDGMENT OF:  BARR J
APPEAL FROM:  COURT OF SUMMARY JURISDICTION
CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – manifest excess ground – sentencing principles – general and specific deterrence – punishment and denunciation – where offender went armed in public – offender in company – late plea of guilty – sentence three months’ imprisonment suspended after one month – manifest excess not established – appeal dismissed.
CRIMINAL LAW – Sentencing – parity principle – “like offenders” – interpretation of – distinguishing factors – age – timing of plea – sense of grievance – test objective – different sentences justified – appeal dismissed.

Sentencing Act (NT) 1995
Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen [(2001) 207 CLR 584; R v Wei Pan [2005] NSWCCA 114, applied.
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36; Lowe v The Queen (1984) 154 CLR 606, cited
REPRESENTATION:
Counsel:
Appellant:G O’Brien-Hartcher
Respondent:  S Ledek
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar1610
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mamarika v Rourke [2016] NTSC 51

No. JA 53 of 2015 (21521584)
BETWEEN:

TRAVIS MAMARIKA

Appellant

AND:

JOSETTE LISA ROURKE

Respondent

CORAM: BARR J
REASONS FOR DECISION
(Delivered 30 September 2016)

On 26 August 2016, I dismissed the appeal against severity of sentence. I now publish my reasons.
The appellant was charged by count 3 on information that, at Angurugu on 12 May 2015, he went armed in public, namely armed with a spear and machete, without lawful occasion and in such a manner as to cause fear to a person of reasonable firmness and courage, contrary to s 69 of the Criminal Code.
That offence carried a maximum penalty of imprisonment of three years.
The appellant and other co-offenders had earlier pleaded not guilty to a number of charges (including count 3), and a hearing commenced in the Court of Summary Jurisdiction on 17 September 2015. The hearing was adjourned part-heard to November 2015. On 19 November 2015 the appellant pleaded guilty to the offence charged as count 3.
The agreed facts, exhibit P1 at the sentencing hearing, established that on 12 May 2015 the appellant and co-offenders attended a residence at Lot 383 Angurugu community. The defendant was armed with a spear and a machete. Other co-offenders were armed with spears, machetes, tomahawks and axes. The defendant and co-offenders were part of a large gathering of approximately 200 to 300 people, including many women and children. Most of the male adults present were carrying weapons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mamarika v Rourke

Details

AGLC: Mamarika v Rourke [2016] NTSC 51
Case: [2016] NTSC 51
Decision Date: 30 September 2016

CaseChat Overview and Summary

Mamarika v Rourke involved an appeal against a sentence imposed on the appellant, Mamarika, who had been found guilty of going armed in public. The case was heard by the Court of Appeal, which was asked to determine whether the original sentence was manifestly excessive and to consider the application of the parity principle in sentencing. The appellant had entered a late plea of guilty, and as a result, was sentenced to three months' imprisonment, suspended after one month.

The court considered whether the sentence was manifestly excessive, a criterion under which an appellate court can intervene. The court found that the sentence did not exceed the range of appropriate penalties for the offence. It also evaluated the parity principle, which requires that like offenders receive like sentences. The appellant argued that the principle required him to receive a similar sentence to a co-offender. However, the court found that distinguishing factors, such as the timing of the plea and the appellant's sense of grievance, justified a different sentence. The court applied an objective test in assessing the similarity of offenders and concluded that the sentences were proportionate and appropriate given the circumstances.

In its reasoning, the Court of Appeal emphasised the importance of considering specific deterrence, punishment, and denunciation in sentencing. The court noted the appellant's late plea of guilty and his behaviour in company as factors that warranted a custodial sentence. The court rejected the appeal, holding that the sentence was within the appropriate range and that the parity principle did not require a like sentence for the appellant and his co-offender. The appeal was dismissed, and the original sentence was upheld.

The court did not make any additional orders beyond dismissing the appeal and affirming the original sentence. The appellant's conviction and sentence remained unchanged, with the three months' imprisonment suspended after one month.

Orders