ML v The Queen - [2018] NTCCA 18

CITATION:ML v The Queen [2018] NTCCA 18

PARTIES: ML

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 10 of 2018 (21709440)
DELIVERED:  27 November 2018
HEARING DATES:  5 September 2018
JUDGMENT OF:  Grant CJ, Southwood and Blokland JJ
CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT
Whether sentence for aggravated robbery manifestly excessive – youths should only be sentenced to custody for the shortest appropriate period – sentence of 33 months manifestly excessive having regard to the objective circumstances and moral culpability – appeal allowed – whether sentencing court erred by purporting to resentence the appellant for breaches of good behaviour orders imposed by the Youth Justice Court – strong inference that sentencing court resentenced under s 15 of the Sentencing Act – that section has no application to orders to be of good behaviour made by the Youth Justice Court – error of principle disclosed – appeal allowed – Supreme Court had power to resentence under s 121(6) of the Youth Justice Act (NT) – less severe sentences warranted and should have been passed – appellant resentenced.

Anderson v The Queen [2014] NTCCA 18; Braun v The Queen; Ebatarintja v The Queen (1997) 6 NTLR 94, House v The King (1936) 55 CLR 499, R v Gurruwiwi (2008) 22 NTLR 68, TB v The Queen [2018] NTCCA 8, referred to.
Criminal Code (NT) s 3, s 188, s 211, s 213
Sentencing Act (NT) s 11, s 13, s 15

Youth Justice Act (NT) s 5, s 52, s 54, s 54A, s 55, s 56, s 56A, s 82, s 83, s 85, s 121
REPRESENTATION:
Counsel:
Appellant:A Abayasekara
Respondent:  D Morters
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  36

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
ML v The Queen [2018] NTCCA 18

No. CA 10 of 2018 (21709440)
BETWEEN:

ML

Appellant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, SOUTHWOOD AND BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 27 November 2018)
THE COURT:
Introduction

On 30 November 2017 the appellant, who is a youth, pleaded guilty to counts 1 and 3 on the indictment dated 29 November 2017. Count 1 charges that contrary to s 213(1), (4), (5) and (6) of the Criminal Code (NT) on 20 February 2017 at Alyangula the appellant unlawfully entered the Groote Eylandt Lodge (“the lodge”) in company and at night with intent to commit the offence of stealing. One of the appellant’s co-offenders, Edmond Wurramara, was armed with a tomahawk. The maximum penalty for this offence is imprisonment for 20 years. Count 3 on the indictment charges that contrary to s 211(1) and (2) of the Criminal Code on 20 February 2017 at Alyangula the offender robbed Nishantha Gunathilake of assorted alcohol being…

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 ML v The Queen

Details

AGLC: ML v The Queen [2018] NTCCA 18
Case: [2018] NTCCA 18
Decision Date: 27 November 2018

CaseChat Overview and Summary

The appellant, ML, appealed against sentences of detention imposed by the Supreme Court of the Northern Territory for aggravated robbery and unlawful entry. The appeal also concerned sentences imposed for breaches of good behaviour orders made by the Youth Justice Court. ML argued that the sentence for aggravated robbery was manifestly excessive, and that the Supreme Court had erred in resentencing him for the breaches of good behaviour orders.

The legal issues before the Court of Criminal Appeal were whether the sentence for aggravated robbery was manifestly excessive, and whether the sentencing judge had erred in resentencing the appellant for breaches of good behaviour orders made by the Youth Justice Court, particularly in relation to the application of section 15 of the Sentencing Act and the power to resentence under section 121(6) of the Youth Justice Act.

The Court found that the 33-month sentence for aggravated robbery was manifestly excessive, considering the appellant's age (16 at the time of the offence) and his moral culpability within the group of offenders. While the unlawful entry sentence was not deemed excessive, the overall sentence was considered too severe. The Court also determined that the sentencing judge had erred in principle by purporting to resentence the appellant for breaches of good behaviour orders under the Sentencing Act, as that section did not apply to orders made by the Youth Justice Court. However, the Court held that it had the power to resentence under section 121(6) of the Youth Justice Act.

Consequently, the appeal was allowed. The Court resentenced the appellant to a less severe period of detention, reflecting the errors identified in the original sentencing.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the sentences of detention imposed on him for counts 1 and 3 on the indictment on the ground that both sentences of detention are manifestly excessive. However, counsel for the appellant acknowledged that the appellant’s main complaint was about the sentence of 33 months detention imposed for count 3 on the indictment, the offence of aggravated robbery.The facts of the counts on the indictment The facts of the offending for counts 1 and 3 on the indictment are as follows. The appellant and his four co-offenders are all from the Angurugu Community on Groote Eylandt. At 3:30 am on 20 February 2017, Ian Mamarika, Raymoss Lalara, Edmond Wurramara, Alex Lalara, and the appellant decided to unlawfully enter the lodge and steal alcohol. The five offenders travelled to the lodge in a motor vehicle that had been stolen from GEMCO. The driver parked the motor vehicle in bushland a short distance from the lodge. Edmond Wurramara, Alex Lalara and the appellant got out of the motor vehicle and walked to the kitchen unloading bay of the lodge. Edmond Wurramara was armed with a tomahawk ostensibly for the purpose of breaking into the lodge if entry proved difficult. The three of them pushed on the door that connects the unloading bay to the kitchen. The noise of them doing so alerted the victim of the robbery, Mr Gunathilake, who opened the door and saw the three offenders in the unloading bay. He saw Edmond Wurramara waving the tomahawk at him. This caused him to fear for his safety. He closed and secured the door and walked through the kitchen into the Seagrass Restaurant. After the three offenders saw Mr Gunathilake go inside the building they continued to try to enter the building. One or more of them pushed on the door until it gave way and opened. The force that was applied to the door was strong enough to bend a steel padbolt. After the door was opened they walked through the kitchen and behind the bar of the Seagrass Restaurant. At that stage, Ian Mamarika and Raymoss Lalara got out of the motor vehicle and entered the restaurant through the same door. Edmond Wurramara saw Mr Gunathilake standing on the opposite side of the bar. He raised the tomahawk in a threatening manner and said to Mr Gunathilake, “Don’t call anyone. Don’t go anywhere.” Edmond Wurramara then grabbed the telephone line which was nearby, placed it on the bar and cut it with the tomahawk so that the telephone could not be used. The appellant also threatened Mr Gunathilake. He raised his fist and shook it at him. Alex Lalara opened the roller shutter at the bar. Ian Mamarika, Raymoss Lalara and Alex Lalara took possession of a large quantity of alcohol which the five offenders carried outside and put in the stolen motor vehicle. They then drove back to Angurugu and began consuming the alcohol. The total value of the stolen alcohol was $2,382.88. The appellant was the youngest of the five offenders. He was 16 years of age. Ian Mamarika was 28 years of age. Raymoss Lalara was 21 years of age. Edmond Wurramara was 20 years of age. Alex Lalara was 18 years of age. It may be inferred that there was a strong bond between the offenders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As a consequence of the sentence for count 3 being manifestly excessive, we also find that the total sentence was manifestly excessive. However, in making that finding we do not consider that the sentence of 15 months’ detention imposed on the appellant for count 1, the offence unlawful entry, was manifestly excessive. The appellant (and his co-offenders) persisted in unlawfully entering the lodge at night even after he knew the lodge was occupied. He did so in company in order to steal a significant quantity of alcohol, and such offences are prevalent.Grounds 2, 3 and 4: The resentence of six months’ detention for each of the three assaults and the operation of s 121(6) of the Youth Justice Act The appellant appeals against the sentences of six months’ detention imposed for each of the three aggravated assaults on the following grounds.2. That the learned sentencing Judge erred in resentencing the [appellant] in respect to the [three] offences in the Supreme Court.3. That the sentences of six months’ detention in respect to each of the breaches of the good behaviour bonds was, in all the circumstances of the offending and the [appellant], manifestly excessive.4. That the learned sentencing Judge erred in resentencing the [appellant] on a statement of facts which were substantially different to the facts to which he had pleaded guilty in the Youth Justice Court.[2] Ground 4 is pleaded in circumstances where the parties provided the sentencing Judge with the wrong facts for each of the three assaults committed by the youth in 2016, and conducted the plea on the basis that those facts were the basis on which the Youth Justice Court had dealt with the matters.The source of the power to resentence The principal ground relied on by the appellant was that his Honour erred by purporting to resentence the appellant under s 121(6) of the Youth Justice Act (NT) because that section does not confer any power on the Supreme Court to deal with a breach of an order of the Youth Justice Court. There are two aspects to this submission. First, did the sentencing Judge resentence the appellant for the three assaults under s 121(6) of the Youth Justice Act? Second, if so, did his Honour have jurisdiction to do so? In our opinion, there is nothing to indicate that his Honour resentenced the appellant under s 121(6) of the Youth Justice Act. His Honour expressly stated in his sentencing remarks that he was sentencing the youth under the Sentencing Act (NT)[3] and he made no mention of either s 121 or s 83 of the Youth Justice Act. The two references his Honour makes to the Youth Justice Act (one express, the other implicit) tend to confirm that he only relied on that Act in two particular respects. First, his Honour states he would be taking into account the sentencing principles contained in the Youth Justice Act and the fact the appellant was still a “relatively young man” (sic).[4] The relatively clear import is that the Court would be taking those important principles of youth sentencing into account, but would be sentencing (including resentencing) the appellant in accordance with the Sentencing Act.