Maymaru v Neesham
[2001] NTSC 12
•7 March 2001
Maymaru v Neesham [2001] NTSC 12
PARTIES:PAUL YIKAKI (2) MAYMARU
v
MATTHEW DAVID NEESHAM
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA6 of 2001 (20004728)
DELIVERED: 7 March 2001
HEARING DATES: 20 February 2001
JUDGMENT OF: THOMAS J
CATCHWORDS:
APPEAL - APPEAL AGAINST SENTENCE
Appeal from Court of Summary Jurisdiction – that sentence manifestly excessive – traditional aboriginal Australian – term of actual imprisonment
Criminal Code Act 1983 (NT), s 188(2)
Wurramara v The Queen (1999) 105 A Crim R 512, applied
REPRESENTATION:
Counsel:
Appellant:J Lewis
Respondent: T Austin
Solicitors:
Appellant:Miwatj Aboriginal Legal Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: tho200104JA
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMaymaru v Neesham [2001] NTSC 12
No. JA6 of 2001 20004728
BETWEEN:
PAUL YIKAKI (2) MAYMARU
Appellant
AND:
MATTHEW DAVID NEESHAM
Respondent
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 7 March 2001)
This is an appeal against a sentence imposed by a stipendiary magistrate sitting in the Court of Summary Jurisdiction in Nhulunbuy on 9 January 2001.
On that date the appellant entered a plea of guilty to a charge that:
On 3 March 2000 at Nhulunbuy in the Northern Territory of Australia
1. unlawfully assaulted Jodie Louise Sephton.
AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:
(i) that the said Jodie Louise Sephton suffered bodily harm.
(ii)that the said Jodie Louise Sephton was a female and the said Paul Yikaki Maymaru was a male.
Contrary to Section 188(2) of the Criminal Code Act 1983 (NT).
The facts in support of the charge were admitted and are covered by the learned stipendiary magistrate in the course of his giving reasons for the sentence he imposed. The learned stipendiary magistrate detailed the matters he took into account in sentencing the appellant and referred to the facts, the principles of law and the subjective factors relevant to the appellant and stated as follows (t/p 12 – 16):
“Paul Yikaki – number 2 – Maymuru has pleaded guilty to an aggravated assault committed on 3 March 2000 at Captain Cook shopping Centre in Nhulunbuy. He admits that the victim suffered bodily harm and is a female and he a male. A third circumstance of aggravation that the victim was indecently assaulted has been withdrawn by the prosecutor.
Whatever one may think of a naked man seizing a woman and dealing with her as this man did, it is not part of the prosecution case that his nakedness caused the assault to be indecent, or indeed, that her partial nakedness at the end caused the assault to be indecent. There is no suggestion of any indecency in the defendant’s actions.
The defendant is 19 without previous convictions. He was 18 at the date of the offence. He lives on an outstation and was in Nhulunbuy for the funeral of his grandfather. He is not used to drink and has found himself in town quite affected by liquor and separated from his family and friends.
At Captain Cook, which is a good walk from central Nhulunbuy on the way to the airport and to Yirrkala, he stopped to urinate in the bushes. Let me pause here for a moment. I meant to check this before I spoke out. This was 9.20-ish in the morning, wasn’t it?
MS BURNESS: Pm, Your Worship.
HIS WORSHIP: Pm, pm. Only once was anything said about dark. Right. Thank you. Right. Well, there you are. He stopped to urinate in the bushes.
It was then round about 9.20 pm. He took his clothes off to protect his clothing. Those are his instructions and I am told that he normally lives and hunts naked. I have not inquired whether he normally goes stark naked among his family, particularly, female members, but I accept that his clothes were all off on this evening at this time because he drunkenly did not want to drunkenly soil them, and that indicates to me that he wasn’t all that drunk.
At 9.20 pm there he was at least partly concealed by shrubs, probably fairly effectively concealed also by darkness, minding his own business. He needed to return to Yirrkala. He saw the victim leave the shops. It would appear that he may have seen her illuminated by lighting as she left the video shop, but I’m not certain of that. That as an impression I got from the facts. As she came to her car, he walked out and went towards her. She saw him, she turned and she began to run. She was dressed. She was wearing shoes, she was carrying a bag of shopping and a handbag. He followed her.
The surfaces at Captain cook are variable. Some are smooth and some are quite rough. I interpose this from my own experience of staying in the motel and shopping there. He followed her and when she tripped and lost her shoe, he caught her. He grabbed her left arm and pulled her towards the motel; that is, away from the shops. The defendant says that his intent was to ask her for money for a taxi to get to Yirrkala.
He has used an interpreter in court and I am told his English is very limited and it certainly does not appear that he asked effectively for anything. I cannot find that he did not try to ask for money, nor can I find that he made any other sort of demand. The victim uttered the words ‘No, leave me alone’ which may or may not have been understood and hit him with her handbag which should have been understood.
He pulled her some 26 metres across an open space, she fell in loose dirt and gravel and she suffered cuts to both knees and the tops of her feet. And as one looks at the photographs that have been tendered, one can only draw the inference that the cuts to the tops of her feet were caused not by falling on gravel so much as by being dragged.
Those photos are before me. The injury to the left knee, in particular, looks quite deep and nasty. Having thus injured her, he let her go. She got up, she hit him with her shopping bag, containing videos and ice cream. The bag split. The contents, as far as I know, are lost.
There is no suggestion he suffered any hurt from either that or the previous blow from the handbag. She ran again and again he chased her and he grabbed her T-shirt from behind. She lost her other shoe. He pulled her in the direction of the Mitre 10 shop. She fell, cutting and bruising her thigh but she was able to slip out of the T-shirt. Now, he was naked and she was in shorts and bra.
She fled towards Matthew Flinders Way, the road between the town and the airport. She abandoned her handbag, he took her shirt. He then put on some clothes and walked to the motel area and then to Matthew Flinders Way and that must have given her some little time to make her escape. When he got to Matthew Flinders Way, he saw the victim and she saw him and she changed her direction back to town. He followed.
She came upon a police vehicle – it’s not suggested though that in following her that he was actually chasing her, I don’t believe whatever she might have thought. She complained to the police and the defendant went into the bush in the general direction of Yirrkala. He was later stopped on Melville Bay Road and was questioned but was not then arrested.
At 6.30 pm the next day, he was arrested and at 8.55 pm he took part in an electronic record of interview with a relation to interpret and as a prisoner’s friend and he declined comment.
The victim had medical treatment for her injuries. For 2 to 3 weeks, she had to attend hospital every day to have dressings changed. After that for about 2 weeks she was out of town and had to change the dressings herself for that period. She had difficulty walking, showering, getting dressed. She suffered pain on rising from sitting to a standing position.
The prosecution has tendered a victim impact statement. The victim says ‘As a result of this attack and a previous attack, my life has changed dramatically and it is not for the better’. She was, she said, too scared to go into town or to work or to be at home by herself. The victim impact statement I note is undated and this case has gone on so long that it may be – one hopes that things may have improved for her since then.
Her boyfriend was even having to go to work with her in the video store at Captain Cook. Visible and painful scarring on her knees and feet have caused people to ask about the scars and, of course, that causes memories to flood back. For a couple of months she had nightmares. She gave up both her jobs for 2 weeks to get out to Darwin for a break, and I take that to be about 3 weeks after the incident.
Clearly she was in a bad way and clearly too it may not all be the defendant’s responsibility because this has come to her on top of that previous incident whatever it was, but something similar apparently, which brings me to the question of prevalence.
The prosecutor seeks an actual prison sentence and speaks of the prevalence of this offence in this area. She says she has some five similar files in her office. Sadly these are awaiting trial or the arrest of defendants and she does not offer evidence of convictions around the traps – around the place from which one could really clearly deduce that the offence is on the up – is on the rise.
Mr Hausman from the Bar table tells me that he has experience of the Gulf of Carpentaria coastline and that this sort of attack by naked Aboriginal males is far less common here than around the coast. Well, I was the magistrate in Borroloola for 4 of the last 5 years and I cannot say it was a prevalent occurrence on that part of the coastline.
MR HAUSMAN: Probably from about (inaudible).
HIS WORSHIP: Yes. What I can say is that now and again in Nhulunbuy and Katherine and probably in every similar centre, one will get an attack by a young Aboriginal male on a young white woman. Sometimes there is drink involved, sometimes he is dared on by his mates. It happens, it is serious, it is generally treated seriously but I am not persuaded that it is so prevalent, so commonly occurring that rehabilitation should give way to retribution.
The defendant is 19. He works on CDEP – and have I said he was 18 at the time so far as I can work out?
MR HAUSMAN: Yes, you mentioned that, Your Worship.
HIS WORSHIP: I did mention that, did I? Right. He works on CDEP for $380 a fortnight. He is single, and I’m told – I guess, it’s either Mr Hausman’s assessment or the defendant admits it, that he’s very withdrawn and shy. He advisably did not speak to the police. He has not required the victim to give evidence even although his view of the offence, I’m told, differs a bit from hers.
He pleaded guilty immediately the prosecutor withdraw the allegation of indecency. His explanation for the whole affair is that when the victim panicked, he panicked too.
Between 14 June and 12 July last year, the defendant missed court on five occasions. He’s had $1000 bail forfeited and is in peril now of losing his liberty for 20 days. I’m told he relies very much on his male relative, who has interpreted for him, to get him here to court and that there were occasions last year when ceremonial matters and deaths prevented this from happening.
A person as unsophisticated as he appears to be should not, I think, suffer increased penalty because of this sort of delay in these circumstances. He’s been assessed as suited for supervision although his preferred outstation seems so remote that I question how much help Corrections could give him or how much accurate information they could readily get about how he was performing.
I have no doubt the defendant must suffer a term of imprisonment for this which was, in anyone’s terms, a brutal and sustained attack. It is not enough to say that he panicked. No doubt he did. He appears remorseful now. I just hope that he has the imagination to put himself in the victim’s position and to see not only that he’s got himself into an awful lot of trouble but to see, to some degree, what a terrible thing he’s done to this young woman’s life. She must have expected to be raped.
Anyone who so acts against a young woman can expect actual imprisonment from the court. The defendant is entitled to a discount of around 25 to 30% on the head sentence for his plea, and his youth, his lack of record and the fact that he did desist when he went back and put his clothes on, are all matters in his favour and I think militate in favour of a relatively early release.
That he retained her shirt leaving her to go undressed for help is a matter of concern. As it may involve the separate crime of theft, it may be that it is not properly an aggravating factor. That’s something that prosecutors need to be wary of when they impose charges – when they draw charges and when they drop charges because there is a decision of the High Court, which I regret shall remain nameless today, which I think is pretty plain that aggravating factors don’t include things which actually amount to separate charges.
The head sentence here must be close to the 18 months to 2 year area before discounts. The formal order of the court is that the defendant is found guilty. He is convicted and sentenced to imprisonment for a period of 15 months commencing on 9 January 2001. I order that sentence be suspended after he serves 6 months. I specify, pursuant to section 40(6) a period of 2 years from the date hereof – no, I don’t. That’s using the wrong form. From the date of release. I’m going to have to start carrying my own forms – during which the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under section 43.
That will be subject to this condition, to which his consent is required, that for the first 12 months, he will be subject to supervision of the Director of Correctional Services or his delegate and will obey all reasonable directions about residence, employment and associates.”
The ground of appeal is that:
(1) In the circumstances the sentence of 15 months gaol and the period to be served before release of 6 months was manifestly excessive.
Mr Lewis, counsel for the appellant, submitted there are inconsistencies in the learned stipendiary magistrate’s finding of facts that form the basis of the sentence. In particular Mr Lewis refers to the magistrate’s finding that the appellant may have panicked and that there was a reasonable possibility he had approached the woman to ask for money for a taxi as being inconsistent with the finding that this was a “brutal and sustained attack on a victim”. I do not consider these to be inconsistent findings. On the objective facts as agreed this was indeed “a brutal and sustained attack”. By referring to the possible panic on the part of the appellant and the possibility he approached the woman to ask for money for a taxi, the learned stipendiary magistrate is acknowledging the submission made by the appellant’s then counsel, Mr Hausman. His Worship is accepting that this submission may be correct but that does not alter the serious nature of the assault. I am not persuaded the appellant has demonstrated any error on the part of the learned stipendiary magistrate relevant to his interpretation of the facts.
Counsel for the appellant complains that the learned stipendiary magistrate made no express reference to the fact that the appellant was and is a traditional aboriginal Australian non-English speaking man customarily living in a remote community unused to alcohol, save and expect that he referred to the appellant as being (t/p 16.1) “a person as unsophisticated as he is”. I do not accept this submission. A complete reading of the sentencing remarks indicate to me the learned stipendiary magistrate was well aware and took into account all of these matters. In particular at t/p 13.1 the learned stipendiary magistrate says:
The defendant is 19 without previous convictions. He was 18 at the date of the offence. He lives on an outstation and was in Nhulunbuy for the funeral of his grandfather. He is not used to drink and has found himself in town quite affected by liquor and separated from his family and friends.
at t/p 13.3:
“. . . I am told that he normally lives and hunts naked.”
at t/p 13.8:
“He has used an interpreter in court and I am told his English is very limited . . .”
at t/p 15.7:
“He works on CDEP for $380 a fortnight. . . . he’s very withdrawn and shy. . . .”
at t/p 15.9:
“I’m told he relies very much on his male relative, who has interpreted for him, to get him here to court and that there were occasions last year when ceremonial matters and deaths prevented this from happening.
and t/p 16.1:
“A person as unsophisticated as he appears to be should not, I think, suffer increased penalty because of this sort of delay in these circumstances.”
All these statements indicate to me that the learned stipendiary magistrate was well aware he was dealing with a traditional aboriginal Australian non-English speaking man customarily living in a remote community unused to alcohol.
Counsel for the appellant argues that the magistrate had the option of imposing a fully suspended sentence of imprisonment having regard to the circumstances of the offender, his prior lack of offending, his youth and that he was at all material times a traditional aboriginal Australian out of his country and uncharacteristically affected by alcohol.
The learned stipendiary magistrate stated (t/p 16.3):
“Anyone who so acts against a young woman can expect actual imprisonment from the court. The defendant is entitled to a discount of around 25 to 30% on the head sentence for his plea, and his youth, his lack of record and the fact that he did desist when he went back and put his clothes on, are all matters in his favour and I think militate in favour of a relatively early release.”
The statement by the learned stipendiary magistrate in the paragraph above reiterates and adopts for the purpose of the case before him the statement by the Court of Criminal Appeal (NT) in Wurramara v The Queen (1999) 105 A Crim R 512 at 522:
“It is, of course, important to ensure that the punishment fits the crime and in the sentencing process the objective seriousness of the offence is a vital matter for consideration. Whilst proper recognition of claims to mitigation of sentence must be accorded due weight in cases such as the present the court must be influenced by the need to protect the weaker members of the community, particularly women and children, from excessive violence: Bulmer (1986) 25 A Crim R 155 at 162; Woodley at 318.”
This statement is applicable to a traditional aboriginal Australian in the circumstances of this appellant.
From my reading of his Worship’s reason for sentence, he has made it plain why he considers there is a need for imposing a term of actual imprisonment.
I accept as correct the submission made by Ms Austin for the respondent as to general principles applicable to appeals against sentence. This submission was as follows:
“It is fundamental that a trial Judge’s (or Magistrate’s) exercise of his sentencing discretion is not to be disturbed on appeal, unless error in that exercise is shown. The presumption is that there is no error.
Salmon and Chute 1994 94 NTR 1 at p 24 where Kearney J repeated the comments made in Raggett, Douglas and Miller v R (1990) 50 A Crim R 41 at 42.
An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest error.
An appellate Court is entitled, when considering the evidence and the reasons given, to assume that the Magistrate has considered all matters which are necessary implicit in any conclusion which he has reached.”
I am not persuaded the appellant has identified any error in the sentencing magistrate’s findings either of fact or law or that the sentence itself is so excessive as to manifest such error.
Accordingly this appeal is dismissed.
__________________________
0
0
0