Namala v The King

[2024] NTCCA 7

CITATION:Namala v The King [2024] NTCCA 7

PARTIES:NAMALA, Christopher

v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 2 of 2024 (22216118)

DELIVERED:  5 July 2024

HEARING DATE:  4 July 2024

JUDGMENT OF:  Brownhill, Huntingford and Reeves JJ

CATCHWORDS:

CRIMINAL LAW – Appeals – Appeal against sentence – whether sentence breached the principle of parity having regard to the different objective and subjective circumstances of the appellant and co-offender – whether sentences imposed gave rise to a justifiable sense of grievance – whether ‘disparity’ is both unjustified and significant – relevant differences between co-offenders – whether sentencing Judge had regard to relevant differences between co-offenders – appeal dismissed.

Criminal Code 1983 (NT) s 211, s 218, s 241.

Sentencing Act 1995 (NT) s 40.

AK v The Queen [2021] NTCCA 4, Bara v The Queen [2016] NTCCA 5, Bianamu v Rigby [2021] NTCA 4, Bugmy v The Queen (2013) 249 CLR 571, House v The King (1936) 55 CLR 499, SE v The Queen [2022] NTCCA 9, TM v The Queen (2017) 40 NTLR 58, Whitehurst v The Queen [2011] NTCCA 11, referred to.

REPRESENTATION:

Counsel:

Appellant:J Bourke with M Mazzone

Respondent:  L Babb SC with L Auld

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  19

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Namala v The King [2024] NTCCA 7

CA 2 of 2024 (22216118)

BETWEEN:

CHRISTOPHER NAMALA

Appellant

AND:

THE KING

Respondent

CORAM:    BROWNHILL, HUNTINGFORD AND REEVES JJ

REASONS FOR JUDGMENT

(Delivered on 5 July 2024)

BROWNHILL J:

1. The appellant and his co-accused pleaded guilty to three offences, namely: (i) aggravated robbery contrary to s 211 of the Criminal Code 1983 (NT) (Count 1); (ii) unlawful use of a motor vehicle contrary to s 218 of the Criminal Code (Count 2); and (iii) damage to property contrary to s 241 of the Criminal Code (Count 3).

2. Both offenders were sentenced by the Supreme Court at the same time. The sentences imposed on both offenders were a total effective sentence of imprisonment for four years, comprised of three years and two months on Count 1, 10 months on Count 2, with four months of the sentence on Count 2 cumulative on the sentence on Count 1, and eight months on Count 3, with six months of the sentence on Count 3 cumulative on the sentence on Count 2. The appellant’s sentence was suspended after serving 20 months, while his co-offender’s sentence was subject to a non-parole period of 24 months.

3. On 22 May 2024, the appellant was granted leave to appeal against his sentence on the ground that the lack of greater disparity between the sentences imposed on the appellant and the co-offender gave rise to a justifiable sense of grievance and gives the appearance that justice has not been done.

4. The basis of that ground is said to be the absence of any distinction in the culpability of each offender’s offending and the ‘vast difference’ in personal circumstances, particularly that the appellant had no criminal history, while the co-offender had a significant criminal history.

5. On 4 July 2024, this Court dismissed the appeal, with reasons to be published. These are my reasons.

   The circumstances of the offending

6. The circumstances of the offending were that, on 27 May 2022 at around 3am, the appellant and the co-offender went to a premises in Palumpa. Two vehicles were parked there which belonged to an Aboriginal development corporation. The offenders went into the front yard and got into one of the vehicles. They tried to start it, damaging the steering column in the process. They were unsuccessful. The occupier of the premises woke up, went outside and stood on the front steps of a secure patio. Security lights were activated and the offenders ran off. The occupier heard people yelling that they would hurt him and steal the vehicle. The occupier went inside and locked his doors. He called 000, and was told Police would be there in about an hour. He stayed inside. He again heard people yelling, threatening to hurt him and demanding the keys for the vehicle. One or both of the offenders forced open the door to the common area of the premises by cutting the mesh, reaching in and opening the door. One or both of them entered that common area, armed with a tomahawk, hammers and/or a machete. The occupier could see one or both of the offenders through the glass door. One or both of the offenders said to him words to the effect of: ‘I’m going to kill you unless you give me the keys’ to the vehicle. The occupier feared for his safety and said he would bring the keys if they went outside and down the stairs. One or both of the offenders did so, the occupier got the keys, went outside and threw the keys to one or both of the offenders. He then sat on the stairs outside for about an hour, watching the offenders trying to start the vehicle. They could not start it and were agitated. They demanded the keys to the other vehicle. The occupier told them he did not have the keys, even though he did. The appellant walked to that vehicle, holding a hammer and a machete, and hit the side rear vision mirror, causing it to break. The offenders then said words to the effect that if the occupier did not give them the keys, they would kill him and his dogs. The occupier again told them he did not have the keys. They became more agitated. The appellant armed himself with a machete and a hammer and walked up the stairs towards the occupant. The co-offender armed himself with a tomahawk and was behind the appellant. The offenders stopped a couple of steps away from the occupier, and the appellant swung the machete towards the occupier’s neck, stopping before striking him. He said: ‘Give us the keys or I’ll cut your head off’. The co-offender lifted the tomahawk above his head and said: ‘And I’ll put my axe in your skull’. The occupier was very scared and said he would get the keys. He went inside, got them, went outside and threw them to the co-offenders. The co-offenders went to the vehicle. The appellant got in the passenger seat, the co-offender got in the driver’s seat and they left in the vehicle. Police arrived two minutes later and pursued the vehicle before they lost sight of it. It was later found abandoned.

   Legal principles

7. The ground of appeal is, in essence, that the parity principle has been misapplied, or has not been applied.

8. The principles relevant to an allegation of a justifiable sense of grievance arising from the parity principle are well known, and not in dispute. They were summarised by the Court of Criminal Appeal in Bianamu v Rigby[1] and in AK v The Queen[2]. I need not repeat them.

9. In short, where the appeal ground is that like co-offenders were given different sentences, the appellant must point to a marked or clearly unjustifiable, or manifest disparity, which objectively engenders a justifiable sense of grievance.[3]

10. Such an error, which may be summarised as a misapplication of, or failure to apply, the parity principle, would be an error as identified in House v The King.[4] It is not, therefore, necessary for the appellant to show that the sentence imposed on the appellant was manifestly excessive in order to ground the appellate court’s intervention.[5]

11. Where the appeal ground is that different co-offenders were given like sentences, it is necessary that the ‘disparity’ be both unjustified and significant, that is, manifestly and not merely arguably excessive, before the appeal court will intervene, where ‘disparity’ is understood in circumstances where the same head sentence was imposed in circumstances where the respective conduct and antecedents warranted the imposition of disparate sentences.[6]

    The differences

    Differences in criminal record, character and prospects of rehabilitation

12. The appellant was 20 years old at the time of the offending and was 23 years old at the time of sentence. The co-offender was 20 years old at the time of the offending and was 22 years old at the time of sentence. There is no relevant age difference.

13. The appellant had no criminal history. The appellant submitted two character references which attested to his excellent prior good character. The sentencing Judge noted that the appellant’s prior good character entitled him to ‘a significant degree of leniency’, that his prospects of rehabilitation were ‘reasonable’ and better than those of the co-offender.

14. The co-offender had a criminal record which included what the sentencing Judge described as ‘significant offences’ of an aggravated robbery in 2019, and an associated aggravated assault. The co-offender’s criminal history also included two other aggravated assaults committed in 2019, an offence of going armed in public committed in 2020, an offence of damage to property committed in 2022, with single instances of related offences of stealing and unlawful entry, an offence of aggravated unlawful use of a motor vehicle committed in 2022, and an offence of driving whilst unlicensed committed in 2021. There were also seven instances of breaching a condition of a suspended sentence. The sentencing Judge described the co-offender’s prospects of rehabilitation as not ‘better than guarded’.

15. The appellant argued that the sentencing Judge’s assessment of his prospects of rehabilitation as ‘reasonable’ was understated, but acknowledged that no ground of appeal was brought from this finding. Rather than the label, I have taken into account the matters about the appellant’s circumstances set out above.

16. The sentencing Judge expressly took into account the difference between the appellant’s and co-offender’s prospects of rehabilitation.

17. The appellant relied upon the observations of the Court of Criminal Appeal in Bara v The Queen[7] to the effect that it may be accepted that a recidivist will ordinarily receive a heavier sentence than a person who has previously led a blameless life. The appellant also argued that, while both offenders were of a very similar age, the Supreme Court had failed to recognise a qualitative difference between the co-offenders which disregarded or did not give sufficient weight to the diminishing mitigatory effect of the sentencing principles applicable to youths (particularly the emphasis on rehabilitation, a decreased importance of general deterrence and a reduction in moral culpability due to immaturity) in the case of ‘recidivist offenders who have previously been afforded a number of opportunities to modify [their] behaviours ... but [have] failed to do so’.[8]

18. The co-offender’s criminal record disclosed 10 offences committed in five separate periods of offending over the course of some three years, for which he was before the Local Court three times and the Supreme Court once. He was also dealt with for each of the breaches of his suspended sentence. It should be noted that the three aggravated assaults and the aggravated robbery were committed when the co-offender was 17 years old, and he did not receive convictions. He completed the 12 month suspended sentence imposed. The co-offender breached the suspended sentence six times, four of those breaches resulted in no action being taken, and two of those breaches resulted in the extension of the operational period. For the offence of going armed in public, he was given a good behaviour bond.

19. By way of contrast, the appellant in TM v The Queen was a 14 year old when he committed the very serious offence the subject of the sentence appealed from. He had appeared 33 times before the Youth Justice Court where offences were found proved, and had committed further offending after the offence, and whilst on bail.[9] The Court in TM v The Queen described the offending in that case as being of ‘considerable gravity’, describing it as ‘very violent’. The offending included both punching and kicking the vulnerable victim to her face and other parts of her body, it was a prolonged attack and the seriousness escalated with the undoing of the button on her jeans and the attempt to pull her jeans down, causing the victim to fear she would be raped, and having a significant and ongoing effect upon her.[10]

20. What the Court of Criminal Appeal said in TM v The Queen about the focus of rehabilitation over deterrence in the case of youthful offenders (at [26]) is as follows:

    Rehabilitation may carry far less weight in respect of a repeat offender who has previously been afforded a number of opportunities to modify his or her behaviours through the imposition of non-custodial dispositions, but has failed to do so and has committed a very serious criminal offence. In such cases the prospects of rehabilitation may be considered diminished, and the weight properly attributed to rehabilitative purpose in the sentencing process lessened as a result.

21. While it is accepted that the appellant was entitled to a degree of lenience for his prior good character which the co-offender was not, and that the factor of specific deterrence would have less weight in the case of the appellant than the co-offender, I do not accept that the co-offender’s criminal record or the seriousness of this offending was such as to reduce by any substantial degree the weight to be given to the rehabilitation of the co-offender as a young person in this case.

    Differences in personal circumstances and ‘Bugmy factors’

22. The appellant was born in Darwin and grew up between Papangala Outstation, Palumpa and Wadeye. He was raised by his maternal grandfather, a senior cultural leader, who taught him song lines, stories and how to hunt. He passed away when the appellant was 10 years old. The appellant then lived with his mother, father and sister, who both worked. He went to school in Wadeye until he was 18 years old, he then moved to a remote outstation, where he learnt to hunt. He returned to Wadeye and worked with the Community Development Program. He was involved in the Men’s Shed and sports, and had an important cultural role as taught to him by his father and grandfather. He was married and had a child and his wife continued to support him. He recalled his childhood being marred by significant unrest and interfamilial conflict in the community. The sentencing Judge accepted that the appellant was exposed to unrest and interfamily violence during his formative years for the purpose of the application of the principle in Bugmy v The Queen.[11]

23. The co-offender was born and raised in Palumpa in a house with more than 10 people living in it. As an infant, he suffered from illness and deprivation in a profound way. At nine months old, he was taken to hospital with pneumonia and concerns of malnutrition. Whilst an infant, he was again treated in hospital for tuberculosis. He was underweight, dehydrated and lethargic. Concerns were raised with the child protection authorities. When he was 11 years old, he was an unrestrained passenger in a car involved in a rollover. The co-offender’s uncle and one of his grandfather’s died in front of him. He was ejected from the car, sustaining traumatic injuries. When admitted to hospital, he was found to be suffering from various conditions associated with malnutrition. After the accident, his attendance at school dwindled and he started using cannabis and volatile substances. The sentencing Judge said that Bugmy principles should be given full weight in his case, and he was entitled to a reduction in his moral culpability by reason of ‘severe childhood deprivation’.

24. The appellant argued that, while both co-offenders were entitled to a reduction of their moral culpability by reason of the Bugmy principle,[12] the co-offender’s reduction was off-set by the increased need for community protection, whilst the appellant’s was not, given his prior criminal history.

25. I do not accept this submission. Notwithstanding the increased risk of reoffending consequent upon the impact of a deprived and dysfunctional childhood which enhances the need for community protection, the co-offender’s reduction in moral culpability (and its consequent moderation on general and specific deterrence) was far greater than that of the appellant, and provided a clear basis for the sentencing Judge to reduce the sentence to be imposed on the co-offender to a significant degree.

    Differences in involvement in the offence

26. The sentencing Judge observed that, aside from the differences in prospects of rehabilitation, ‘there is not much between the two offenders in terms of involvement in the offences’.

27. I consider that there are some relevant differences in the co-offenders’ conduct during the offending, which make the appellant’s conduct more serious than the co-offender’s. It was the appellant who broke the rear vision mirror on the second vehicle whilst armed with a hammer and a machete and after the occupier had denied having its keys. This was undoubtedly designed to intimidate the occupier in demand for the keys. It was the appellant who first walked up the stairs of the premises towards the occupant, armed with both a machete and a hammer. The co-offender, armed with a tomahawk, followed. It was the appellant who swung his machete towards the occupant’s neck, stopping before striking him, and who first demanded the occupant give them the keys. The co-offender raised his tomahawk and followed up the appellant’s threat with his own. In the execution of these intimidating and threatening acts, it was the appellant who took the lead and acted first and the appellant actually swung his weapon towards the victim, while the co-offender simply raised his tomahawk over his head. These matters are a basis upon which to distinguish between the involvement of the two offenders in the offending and to find that the appellant’s conduct was more serious than the co-offender’s.

28. The appellant argued that, in oral sentencing submissions, the prosecutor had disavowed the distinction they had put in writing in the seriousness of the conduct of the appellant and the co-offender. It was argued that, for this reason, the Supreme Court treated the co-offenders as ‘equally culpable’.

29. I reject that submission. What the sentencing Judge said was that there was ‘not much between the two offenders in terms of involvement in the offences’. That acknowledges that there was some difference between their involvement, although it was not extensive, as set out above, and is consistent with the written submissions made by the prosecutor to the sentencing Judge that the culpability of both offenders was ‘largely the same’, with two identified matters of difference. The matters referred to above do provide a basis for a not insignificant difference in the weight attributable to the factor of involvement in the offending in the sentences imposed.

    Different discounts for the guilty pleas

30. The sentencing Judge discounted the appellant’s sentence by 20%, and discounted the co-offender’s sentence by 25%. Once those discounts are taken into account, the starting points for the total sentences were imprisonment for five years for the appellant, and five years and four months for the co-offender.

31. The appellant argued that no reason was given for the different discounts and none was apparent, including the reason identified by the respondent, being a lesser degree of remorse on the appellant’s part, given what he said to the writer of the supervision assessment report.

32. About the appellant’s plea and discount, the sentencing Judge said:

    It is disturbing to note that the explanation which [the appellant] gave to the author of the s 103 report for this significant offending was simply that he was bored and that he and his co-offender went after the car for some fun. He has spent time in custody presentence, such that the commencement of any sentences which I impose should be backdated to 28 March 2023.

    I accept that he entered early pleas of guilty to these charges, which had significant utilitarian effect, as it did not require the prosecution to conduct a defended trial. I also accept that his plea of guilty evidenced some remorse for these offences and also relieved the victim of the necessity to give evidence. I also accept that he expressed some remorse to the author of the s 103 report. I will reduce by approximately 20 percent the sentence that would otherwise have been appropriate in light of the pleas of guilty.

1. About the co-offender’s plea of guilty and remorse, the sentencing Judge then said:

   I also accept that the pleas of guilty entered by [the co-offender] were early pleas, which again had utilitarian value and also evidence of some remorse. I will reduce the otherwise appropriate sentence by approximately 25% because of his pleas of guilty.

2. The supervision assessment report obtained in respect of the appellant provides as follows:

   [The appellant] agreed with the statement of facts and stated he didn’t want to hurt the man and was just after the car for some fun. He stated he was in Palumpa visiting his sick grandmother at the time and was bored and formed the intention with the co-offender to look for a car to steal.

   When [the appellant] was asked how the man would have felt being threatened with the weapons he stated ‘scared, I didn’t want to kill him’.

3. The appellant argued that the failure to explain the differences in discount ‘bespeaks error’ and was ‘perhaps the most telling sign that the principle of parity had not been properly applied.

4. On the contrary, I consider that, in accordance with SE v The Queen,[13] the sentencing Judge started with the proposition that a reduction of 25% will normally be given in circumstances where there has been an early guilty plea which is indicative of true remorse and resipiscence. There was nothing before the sentencing Judge to indicate that the co-offender’s early plea was not indicative of true remorse and resipiscence. Consequently, a discount of 25% was appropriate.

5. By contrast, there was evidence before the sentencing Judge that the appellant’s early plea was not indicative of true remorse and resipiscence, namely what he said to the author of the supervision assessment report. In that discussion, the appellant was referred to the agreed facts of the offending, which record that he was armed with two weapons and threatened by words and action to hurt or kill the victim. The appellant denied any intention to do so, and said he wanted the car for some fun and because he was bored. While he acknowledged that the victim would have felt scared (which could be construed as an expression of ‘some remorse’), he said he did not intend to kill him. What the appellant said could readily be construed as minimising and/or justifying the seriousness of the offending and its effects upon the victim. So construed, these statements could rationally have satisfied the sentencing Judge that the appellant’s early plea was indicative of a lesser degree of remorse and resipiscence than would have been found in the absence of such statements.

6. The appellant referred to the character reference in which the appellant’s aunt stated that the appellant ‘feels bad for [the victim] and knows he did the wrong thing, he told me on the phone that he is sorry’. What is said there only attributes to the appellant the statement that he is ‘sorry’, which is not an expression of remorse for the effects of the offending on the victim. What the character reference says carries very little (if any) weight as an indication of true remorse and resipiscence.

7. The statements of the appellant to the writer of the supervision assessment report were a basis upon which to reduce to 20% the 25% discount normally afforded where there has been an early guilty plea which is indicative of true remorse and resipiscence. That, and the sentencing Judge’s reference to these statements as ‘disturbing’ only one sentence before he dealt with the plea and the discount is a sufficiently clear indication that they were the reason for the differences in discounts as between the appellant and the co-offender.

   Difference in time to be served

8. It is also relevant to the operation of the parity principle that the appellant was ordered to be released after serving 20 months, while the co-offender was subject to a non-parole period of 24 months.

9. The appellant argued, effectively, that this difference between the sentences was immaterial in considering whether the sentencing Judge had misapplied the parity principle. I do not accept that submission. The appellant has not submitted (correctly, in my view) that the sentence imposed on the appellant is outside the range of appropriate sentences which could have been imposed for this offending. Consequently, there is no suggestion that the suspended sentence imposed on the appellant would not be appropriate in the circumstances as required by s 40(3) of the Sentencing Act 1995 (NT). In choosing whether to proceed by way of a suspended sentence or a non-parole period, the sentencing Judge must consider many things including the minimum period of imprisonment which must be actually served to reflect the seriousness of the offending, and the personal circumstances of the offender including any prospects for rehabilitation.[14] The imposition of a suspended sentence for the appellant and a non-parole period for the co-offender is one of the ways adopted by the sentencing Judge to acknowledge and allow for the differences between the two in terms of their prospects of rehabilitation.

   Conclusion

10. As set out above, there are numerous differences between the appellant and the co-offender, some of which point towards a lighter sentence and some of which point towards a heavier sentence. Determining the extent to which these matters weigh in the sentencing process when comparing the circumstances of co-offenders is, as with most parts of the sentencing calculus, not a mathematical exercise.[15] I am not satisfied that the ‘disparity’ presented by the same terms of imprisonment imposed on the appellant and the co-offender and the differences between the appellant and the co-offender are either unjustified or significant, that is, manifestly and not merely arguably excessive as required to permit this Court to intervene.

    Disposition

11. For the above reasons, the appeal was dismissed.

    HUNTINGFORD J:

12. I agree.

    REEVES J:

13. I agree.

    ORDER

14. The appeal is dismissed.

________________________

[1]Bianamu v Rigby [2021] NTCA 4 at [73]-[80] per Southwood J (Kelly J and Hiley JA agreeing).

[2]AK v The Queen [2021] NTCCA 4 at [48]-[49] per the Court.

[3]Ibid at [49] per the Court.

[4]House v King (1936) 55 CLR 499.

[5]Bara v The Queen [2016] NTCCA 5 (‘Bara v The Queen’) at [39] per the Court.

[6]Ibid at [38]-[39] per the Court.

[7]Ibid at [57] per the Court.

[8]Citing TM v The Queen (2017) 40 NTLR 58 (‘TM v The Queen’) at [26] per the Court.

[9] Ibid at [14]-[15] per the Court.

[10]Ibid at [29]-[32] per the Court.

[11]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

[12]     I accept the respondent’s submission that the sentencing Judge afforded a degree of mitigation to the appellant in accordance with Bugmy principles given the finding of his exposure to unrest and interfamily violence in his formative years and the statement, in the segment of the sentencing remarks dealing with both offenders, that some modification of general deterrence is justified due to a reduction in moral culpability for Bugmy factors.

[13]SE v The Queen [2022] NTCCA 9 at [12] per the Court.

[14]Whitehurst v The Queen [2011] NTCCA 11 at [28] per Riley CJ (Mildren and Martin JJ agreeing).

[15]     Bara v The Queen at [59] per the Court.