Matha v White, Burness and Eaton - [2003] NTSC 116

Matha v White, Burness & Eaton [2003] NTSC 116
PARTIES:ANDREW DJOKI MATHA

v
MICHAEL WHITE
JOSEPHINE LEAH BURNESS
DON JOHN EATON

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NOS:JA 117/03 (9910076), 118/03 (20101680), 119/03 (20204746)
DELIVERED:  28 November 2003
HEARING DATE:  21 November 2003
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:S Barlow
Respondents:  S Ozolins
Solicitors:
Appellant:NAALAS
Respondents:  DPP
Judgment category classification:    C
Judgment ID Number:  bai0306
Number of pages:  17

bai0306
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Matha v White, Burness & Eaton [2003] NTSC 116
Nos. JA 117/03 (9910076), 118/03 (20101680), 119/03 (20204746)

BETWEEN:
ANDREW DJOKI MATHA

Appellant
AND:
MICHAEL WHITE (JA 117/03)
JOSEPHINE LEAH BURNESS (JA 118/03)
DON JOHN EATON (JA 119/03)
Respondents

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 28 November 2003)
Background

On 6 June 2003, the appellant was convicted upon his own pleas of guilty and sentenced in the Northern Territory Court of Summary Jurisdiction sitting at Darwin in relation to nine offences appearing on three separate files. The nine offences comprised 3 counts of stealing, 3 counts of aggravated assault, 2 counts of criminal damage and one count of unlawful entry with intent to steal.
On file no. 9910076, the learned magistrate sentenced the appellant as follows –

1.

Stealing (petrol to the value of $135)

)

Aggregate sentence of

2.

Unlawful entry with intent to steal

)

7 months imprisonment

3.

Stealing (cash and petrol to the value of $47)

)

4.

Unlawfully damage property (value $500)

:

No conviction – discharged

5.

Stealing (petrol to the value of $2.70)

:

1 month imprisonment

6.

Aggravated assault (threatened with an offensive weapon)

:

5 months imprisonment

The sentences on counts 1, 2, 3, 5 and 6 were ordered to be served concurrently, resulting in a total period of imprisonment on this file of 7 months.

On file no 20101680, the learned magistrate sentenced the appellant as follows –
1.Aggravated assault (threatened with an offensive weapon): 5 months imprisonment.
2.Aggravated unlawful damage to property (value $946): 2 months and 2 weeks imprisonment.

The sentences on these counts were ordered to be served concurrently to each other and cumulatively upon the sentences imposed on file no 9910076.

On file no 20204746, the learned magistrate sentenced the appellant to imprisonment for 6 months for an aggravated assault (male/female, causing bodily harm). The sentence on this file was ordered to be served cumulatively upon the sentences imposed on files 20101680 and 9910076.
The effective head sentence imposed upon the appellant was imprisonment for a period of 18 months. The learned magistrate fixed a non-parole period of 9 months.
The circumstances of the three episodes of offending were summarised by the learned magistrate in the following terms:
“I’m dealing with a defendant who is now 28 years of age. On file 9910076, when he was 23 years of age, he was involved on Elcho Island in an unlawful…

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.

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Details

Case: [2003] NTSC 116
Decision Date: 28 November 2003

CaseChat Overview and Summary

In the matter of Matha v White, Burness and Eaton, the appellant, Matha, contested the sentence imposed by the magistrate. The nature of the dispute revolved around the severity and appropriateness of the sentence, specifically the period of imprisonment handed down by the magistrate. The court hearing this appeal was the Supreme Court of Queensland. The legal issues the court had to address included whether the magistrate erred in his assessment of Matha’s character and the weight given to his guilty pleas, as well as the consideration of whether the sentence should have been suspended.

The court considered whether the magistrate's negative view of Matha was justified based on the evidence presented, including Matha’s history of assault, threats, and failure to attend court. The court found that the magistrate had ample evidence to support his opinion, rejecting the appeal on this ground. Regarding the discount for Matha’s guilty pleas, the court determined that while the pleas did advance the administration of justice, the delay in resolving the case due to Matha’s non-attendance at court warranted a lesser discount than Matha had hoped for. The court also dismissed the argument that the magistrate had considered irrelevant factors, ruling that Matha’s continued offending after being spoken to by police was a legitimate factor in sentencing.

The final issue was whether the magistrate failed to properly consider suspending the sentence of imprisonment. The court concluded that the magistrate had considered the possibility of suspension but found it inappropriate given Matha’s repeated offending. The appeal was thus dismissed on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I am in no doubt that the learned magistrate’s negative view of the appellant in part stemmed from this threat to Mr Martin. However, there was other material upon which to found the learned magistrate’s opinion. Mr Martin had not only been threatened by the appellant, he had been assaulted by the appellant throwing a can of meat at him. The appellant had threatened his sister and family members. The appellant had threatened innocent passersby in a vehicle. The appellant had pushed his de facto to the ground and kicked her in the face. The appellant’s then counsel had on three occasions during submissions referred to the appellant as “spoilt”. I consider that there was ample material before the learned magistrate to justify his negative view of the appellant. There is no merit in this ground of appeal.Grounds 7 and 8 – Pleas of guilty/irrelevant considerations These two grounds of appeal may be disposed of in brief terms. The learned magistrate afforded the appellant a discount of 15% for his guilty pleas. His Worship indicated that he would have given the appellant a discount of 20% to 25% but for the fact that the appellant’s earliest offences dated back more than 4½ years and the appellant had been responsible for the delay in resolving matters by his failures to attend court. Mr Barlow submitted that the learned magistrate effectively punished the appellant for breaching bail. The submission is misconceived. An offender is afforded a discount for a guilty plea because his plea advances the administration of justice. The administration of justice was advanced by the appellant’s pleas – but not to the extent which it would have been if he had attended court as directed for the completion of his various matters. Accordingly, the appellant was not entitled to a “full” discount for his pleas. The complaint that the learned magistrate took into account irrelevant considerations is a reference to the fact that the learned magistrate noted that the appellant continued to offend after being spoken to by Police for earlier offences. Mr Barlow submitted that the learned magistrate had treated the appellant as if he had been placed on bail for the earlier offending. A mere conversation with a police officer about an incident is not comparable to a person being placed on bail and then committing a further offence. Persons are often spoken to by Police and released without charge. The difference in the appellant’s case, however, was that he knew (as evidenced by his guilty pleas) that he had offended, yet continued to commit further offences. The appellant cannot claim the credit due to a man who is guilty of a single lapse in an otherwise law-abiding life. The appellant’s repeated offending dilutes the consideration which may be afforded to him because the repeated offending shows that the conduct is not out-of-character. Personal deterrence may be required in a sentence for a repeat offender. There is no merit in appeal grounds 7 and 8.Ground 6 – Failure to properly consider whether to suspend the sentence of imprisonment

1.	Stealing (petrol to the value of $135)	)	Aggregate sentence of
2.	Unlawful entry with intent to steal	)	7 months imprisonment
3.	Stealing (cash and petrol to the value of $47)	)
4.	Unlawfully damage property (value $500)	:	No conviction – discharged
5.	Stealing (petrol to the value of $2.70)	:	1 month imprisonment
6.	Aggravated assault (threatened with an offensive weapon)	:	5 months imprisonment