R v Tamawiwy (No 4) - [2015] ACTSC 371

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Tamawiwy (No 4)
Citation:	[2015] ACTSC 371
Hearing Dates:	21-24 September and 2 November 2015
DecisionDate:	11 November 2015
Before:	Refshauge J
Decision:	1. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 2 on the indictment. 2. Billy Bartolomeus Tamawiwy be sentenced to nine months imprisonment to commence on the 9 September 2014 to take into account pre-sentence custody. 3. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 3 on the indictment. 4. Billy Bartolomeus Tamawiwy be sentenced to ten months imprisonment to commence on the 9 October 2014, that is to be cumulative as to two months on the sentence for Count 2. 5. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 5 on the indictment. 6. Billy Bartolomeus Tamawiwy be sentenced to nine months imprisonment to commence on the 9 January 2015, that is to be cumulative as to two months on the sentence for Count 3. 7. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence. 8. Billy Bartolomeus Tamawiwy be sentenced to twelve months imprisonment to commence on the 9 January 2015, that is to be cumulative as to three months on the sentence for Count 5. 9. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 10 on the indictment. 10. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 September 2014, that is to be cumulative as to six months on the sentence for Count 6 on the indictment. 11. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 12 on the indictment. 12. Billy Bartolomeus Tamawiwy be sentenced to twenty-four months imprisonment to commence on the 9 January 2015, that is to be cumulative as to six months on the sentence for Count 10 on the indictment. 13. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 13 on the indictment. 14. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 September 2015. That is to be cumulative as to six months on the sentence for Count 12 on the indictment. 15. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 14 on the indictment. 16. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 March 2016, that is to be cumulative as to six months on the sentence for Count 13 on the indictment. 17. A non-parole period for those sentences of 22 months is set, to commence on the 9 September 2014 and end on the 9 July 2016. 18.…

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: [2015] ACTSC 371
Decision Date: 11 November 2015

CaseChat Overview and Summary

Billy Bartolomeus Tamawiwy was charged with a number of offences including using a carriage service to menace, harass or cause offence, sexual intercourse without consent and committing an act of indecency without consent. The matter was heard by the Supreme Court of South Australia. The court needed to determine whether Tamawiwy was guilty of the offences and if so, what the appropriate sentences should be.

In assessing the charges, the court considered the evidence presented, including the nature and extent of the communications Tamawiwy made through electronic means. The court found that Tamawiwy had used a carriage service to menace, harass or cause offence on multiple occasions and that he had engaged in sexual acts without consent. The court noted the aggravating factors such as the fraudulent and deceptive nature of Tamawiwy's actions and his vindictive behaviour. Tamawiwy was found guilty on all counts and was sentenced accordingly.

The court sentenced Tamawiwy to a total of 136 months imprisonment, with a non-parole period of 22 months for the first set of charges and 15 months for the second set. The sentences were cumulative, with Tamawiwy to serve a total of 136 months, taking into account the pre-sentence custody. The court also ordered that the non-parole periods for the sentences be set at 22 months and 15 months respectively.

The final orders included convictions on all counts and sentences that reflected the seriousness of the offences committed by Tamawiwy. The non-parole periods were set to ensure that Tamawiwy would serve a significant period of time before being eligible for parole.

Orders

Orders of the court

1. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 2 on the indictment.

2. Billy Bartolomeus Tamawiwy be sentenced to nine months imprisonment to commence on the 9 September 2014 to take into account pre-sentence custody.

3. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 3 on the indictment.

4. Billy Bartolomeus Tamawiwy be sentenced to ten months imprisonment to commence on the 9 October 2014, that is to be cumulative as to two months on the sentence for Count 2.

5. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 5 on the indictment.

6. Billy Bartolomeus Tamawiwy be sentenced to nine months imprisonment to commence on the 9 January 2015, that is to be cumulative as to two months on the sentence for Count 3.

7. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence.

8. Billy Bartolomeus Tamawiwy be sentenced to twelve months imprisonment to commence on the 9 January 2015, that is to be cumulative as to three months on the sentence for Count 5.

9. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 10 on the indictment.

10. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 September 2014, that is to be cumulative as to six months on the sentence for Count 6 on the indictment.

11. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 12 on the indictment.

12. Billy Bartolomeus Tamawiwy be sentenced to twenty-four months imprisonment to commence on the 9 January 2015, that is to be cumulative as to six months on the sentence for Count 10 on the indictment.

13. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 13 on the indictment.

14. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 September 2015. That is to be cumulative as to six months on the sentence for Count 12 on the indictment.

15. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 14 on the indictment.

16. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 March 2016, that is to be cumulative as to six months on the sentence for Count 13 on the indictment.

17. A non-parole period for those sentences of 22 months is set, to commence on the 9 September 2014 and end on the 9 July 2016.

18. Billy Bartolomeus Tamawiwy be convicted of engaging in sexual intercourse without consent, being Count 7 on the indictment.

19. Billy Bartolomeus Tamawiwy be sentenced to thirty months imprisonment to commence on the 9 July 2015.

20. Billy Bartolomeus Tamawiwy be convicted of engaging in sexual intercourse without consent, being Count 8 on the indictment.

21. Billy Bartolomeus Tamawiwy be sentenced to thirty months imprisonment to commence on the 9 July 2016, that is to be cumulative as to twelve months on the sentence for Count 7 on the indictment.

22. Billy Bartolomeus Tamawiwy be convicted of committing an act of indecency without consent, being Count 9 on the indictment.

23. Billy Bartolomeus Tamawiwy be sentenced to fifteen months imprisonment to commence on the 9 April 2018, that is to be cumulative as to six months on the sentence for Count 8 on the indictment.

24. For those sentences a non-parole period of one year and three months be set, to commence on the 9 July 2015 and end on the 8 November 2016.

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

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