Tamati v The Queen

[2012] VSCA 153

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2011 0276

MOHI KENNETH TAMATI
	Appellant
v
THE QUEEN	Respondent

S APCR 2011 0277

JAHDON KENNETH TAMATI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 June 2012
DATE OF JUDGMENT:	29 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 153
JUDGMENT APPEALED FROM:	DPP v Mohi Tamati and Jahdon Tamati (Unreported, County Court of Victoria, Judge Chettle, 11 October 2011)

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SENTENCE – False imprisonment, intentionally causing injury, intentionally causing serious injury and assault – Parity – Whether proper weight given by sentencing judge to differences in age, criminal history and culpability as between the two appellants and their co-offenders – Appeal allowed – Appellants re-sentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Mohi Tamati	Ms C B Hollingworth	Robert Stary Lawyers
For the Appellant Jahdon Tamati	Mr S A Moglia	James Dowsley & Associates
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

1. I will ask Harper JA to deliver the first judgment.

HARPER JA:

Introduction

1. On 1 February this year, I gave the present appellants, Jahdon Tamati and his brother Mohi, leave to appeal their sentences but only on one of a number of grounds upon which they originally relied.  It was that the sentencing judge failed to make due allowance when sentencing them to differences in their culpability and circumstances when these sentencing considerations are compared with those of two of their co‑offenders.

1. A recapitulation of the background is necessary.  On Friday 1 January 2010, three persons who held themselves out as vendors of ecstasy tablets, met with three prospective purchasers.  At about 9.30 am a deal was done.  One of the purchasers, Adam Gray, handed $13,000 to one of the vendors, Cihan Ayna, who promised to supply 1,000 tablets in return.  It seems that Gray was acting, at least in part, on behalf of a man called Daniel Best. 

1. Having received the cash, Ayna departed.  His announced intention was to collect, and return with, the tablets while two of his companions, Yaldez Demirkol and Michael Salatas, remained with Gray and his two companions, Daniel Best and Melissa Knight. 

1. Whether the continued presence of Demirkol and Salatas were originally intended as security for Ayna’s return is not of any real moment.  Their status as hostages became unarguable when, an hour having passed and Ayna having failed to return, Demirkol and Salatas were locked in a van and driven away.  During part of this journey, their ankles and wrists were bound by rope and duct tape.  Gray, who had a firearm, threatened to shoot them.  Best, who had a bottle of acid, threatened to pour it over Demirkol. 

1. For the next four days or so, the captives were kept under guard as the van moved from place to place.  From time to time they were tied to chairs in the rear of the van and from time to time pillow cases were placed over their heads.  At some point, Melissa Knight left the group.

1. Some 20 hours after their original detention, the hostages and their captors were joined by the appellants and a man named Daniel Smith.  The newcomers were armed with knives or meat cleavers, and from then on became active participants in the continuing detention of the hostages.  They were present when Demirkol and Salatas were threatened with amputation of their fingers and being shot in the leg, and when Best fired a bullet from a .22 rifle directly over Demirkol’s head. 

1. Saturday evening came and went.  In the early hours of the following day, the party moved to a house at an unknown location;  but the hostages were kept in the van, having first been bound and trussed by Mohi Tamati, Smith and Best. 

1. On Sunday evening, with neither the drugs nor the money having been recovered, Gray became very angry.  He ordered the appellants to assault Jesse Trigg, a step-son of Salatas.  Trigg had, earlier that day, joined the hostages.  This, apparently, was in exchange for Salatas, who was unwell and who wished to be released.  But if that was the agreement, the captors did not honour it.  Neither Salatas nor Trigg were released, while now Trigg became a primary victim of a vicious assault during which the appellants stomped on his head and back.  They were assisted by Gray, who contributed some punches to the victim’s face.  The three also punched and kicked Demirkol, whose hands were tied behind his back, while Gray added a vicious initiative of his own:  he used a cigarette lighter to burn Demirkol’s leg.  Gray and Jahdon Tamati then took a different tack: they poured hot candle wax over the victim’s leg and face, and into his ear, an act of horrendous violence to which Jahdon further contributed by first putting a metal claw hammer in a naked flame, and when it became hot applied it to Demirkol’s calf.  In the meantime, Smith took a sawn‑off rifle and placing a pillow against Demirkol’s chest, pulled the trigger.  The gun was not loaded; but it seems that Demirkol did not know this until after the trigger had been pulled.  That night, unsurprisingly, he suffered a panic attack.

1. Even then the captors had not done with their hostages.  On Monday 4 January, the offenders took the victims to a bridge on the Western Ring Road.  During the journey, Jahdon punched Salatas in the area of the head.  On arrival at the bridge the captives were made to enter a manhole.  As this was happening, Mohi punched Demirkol in the face, breaking his nose.  A later kick from Gray caused him to fall approximately three metres onto rocks while his arms and legs were tied with nylon rope.  After this, the two brothers punched and kicked him into unconsciousness. 

1. The party then moved to a garage in a property occupied by Best.  The victims were shown a high‑powered .303 rifle, together with bullets.  They remained in the shed overnight.  But on the following day, 5 January 2010, the offenders were intercepted by police and arrested when, at about 4.15 am,  they left the house. 

The charges and the sentences. 

1. At the time of offending, Jahdon Tamati was 19 years and 11 months old.  He had no prior convictions, and has not since come under notice of authorities.  On 23 September 2011 he pleaded guilty to the following charges and on 11 October 2011 was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	3 years	9 months
2	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	2 years	9 months
3	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	2 years	9 months
4	Intentionally Cause Injury [Crimes Act 1958 (Vic) s 18]	10 years [Crimes Act 1958 (Vic) s 18]	2 years	9 months
5	Intentionally Cause Serious Injury [Crimes Act 1958 (Vic) s 16]	20 years [Crimes Act 1958 (Vic) s 16]	4 years 6 months	Base
6	Assault [Common Law]	5 years [Crimes Act 1958 (Vic) s 320]	6 months	None
Total Effective Sentence:		7 years 6 months’ imprisonment
Non-Parole Period:		5 years

1. At the time of offending, Mohi Tamati was 22 years old.  He pleaded guilty to the following charges and was also sentenced on 11 October 2011.  The details appear in the table below:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	3 years	9 months
2	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	2 years	9 months
3	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	2 years	9 months
4	Intentionally Cause Injury [Crimes Act 1958 (Vic) s 18]	10 years [Crimes Act 1958 (Vic) s 18]	2 years	9 months
5	Intentionally Cause Serious Injury [Crimes Act 1958 (Vic) s 16]	20 years [Crimes Act 1958 (Vic) s 16]	5 years	Base
6	Assault [Common Law]	5 years [Crimes Act 1958 (Vic) s 320]	12 months	None
Total Effective Sentence:		8 years and 6 months’ imprisonment
Non-Parole Period:		6 years

1. By contrast, Gray was sentenced to four years’ imprisonment for the false imprisonment of Demirkol, three years for the same offence in relation to Salatas and two years for the false imprisonment of Trigg.  For intentionally causing injury to Trigg, he received a further two years and for intentionally causing serious injury to Demirkol, another five years.  He was also convicted of extortion, for which he received a sentence of three years’ imprisonment.  With cumulation of a portion of each sentence, save that for intentionally causing serious injury, his head sentence was 11 years’ imprisonment with a non‑parole period of seven years and six months.

1. For his part, Best was convicted of three charges of false imprisonment, each relating to Demirkol, Salatas and Trigg, and for being a prohibited person in possession of a firearm.  For the false imprisonment of Demirkol, he was sentenced to four years and six months’ imprisonment.  This was the base sentence.  For the false imprisonment of Salatas, he was sentenced to three years and six months’ imprisonment and for the false imprisonment of Trigg, to two years and six months’ imprisonment.  The penalty imposed for the firearm was three years and six months’ imprisonment.

The remaining grounds of appeal - Parity

1. Each appellant contends that the sentencing judge failed to give proper weight to the differences in age, criminal history and culpability as between him and his co‑offenders, Gray and Best.  Each submits that he has a justifiable sense of grievance because his sentences were unduly severe when compared with those imposed upon the other two.

1. In R v Wolfe, Maxwell P said:

[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a ‘justifiable sense of grievance’ about the relativity between the appellant’s sentence and the sentence of the co-offender.[1]  I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences.  That is, the question whether the appellant’s sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation – or lack of differentiation, as the case may be – between the appellant and the co-offender.  If it was reasonably open to the sentencing judge, on the material before the court, to differentiate – or fail to differentiate – between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant’s grievance about the sentencing relativity cannot be said to be justifiable.[2] 

[1]See Lowe v The Queen (1984) 154 CLR 606;  Postiglione v The Queen (1997) 189 CLR 295.

[2][2008] VSCA 284, [9], cited in Teng v The Queen (2009) 22 VR 706, 710 [17].

1. There are important and relevant distinctions between the appellants and the two co‑offenders with whom their sentences have been compared.  Gray is older than Jahdon by some 11 years, and older than Mohi by some nine.  He and Best initiated the offending, and were involved in it for almost a full day before the brothers joined them.  For his part, Best is 13 years older than Jahdon and 11 years older than Mohi.  Both were not only involved in the criminal enterprise from the beginning, but were more influential than either brother in determining the course of events.  Both have a criminal history which is considerably more significant than that of Mohi, while Jahdon has no such history at all. 

1. The Crown submitted that the brothers were willing participants in the very serious criminality which was involved with this offending.  The evidence bears this out.  I also accept, however, that each of Gray and Best initiated at least some of the actions of the appellants, and encouraged them in all that they did.  On the other hand, it does seem to me significant for sentencing purposes that Gray and Best are considerably older than either appellant, and that each of the older men has a lengthy criminal history.  That is true of neither of the appellants. 

1. Another significant difference in the seriousness of the offending of the appellants as compared with that of Gray and Best is that both of the older men were involved in the false imprisonment of each of Demirkol, Salatas and Trigg for some 20 hours longer than was the case in respect of the brothers.  There is also the circumstance that they were the initiators and were prepared to encourage the younger pair.

1. For these reasons, it seems to me that a greater degree of difference in sentences ought be allowed in each case as compared with those imposed upon Gray and Best.  I therefore propose that each be re‑sentenced as follows.

1. I would sentence Mohi Tamati on count 1 (the false imprisonment of Demirkol) to two years’ imprisonment; in respect of the second charge (the false imprisonment of Salatas) I would sentence him to 18 months’ imprisonment; and in respect of the third charge (the false imprisonment of Trigg), also to 18 months’ imprisonment.  I would make no change in either the sentence imposed in relation to the charge of intentionally causing injury to Trigg (two years’ imprisonment) or that imposed for common assault (12 months’ imprisonment).  I would reduce to four years and nine months’ the sentence of imprisonment imposed on Mohi Tamati for intentionally causing serious injury to Demirkol.  I would designate this sentence as the base sentence.  I would cumulate six months of the sentence on the charges of false imprisonment of, respectively, Demirkol, Salatas and Trigg.  I would also cumulate six months in relation to the charge of intentionally causing injury to Trigg.  The sentence for common assault is to be served concurrently with the other sentences thus imposed.  On my calculation, that brings the head sentence to one of six years and nine months’ imprisonment.

1. I would order that Mohi Tamati serve four years and nine months’ imprisonment before becoming eligible for parole.

1. I set out below, in tabular form, the effect of the above process of re-sentencing Mohi Tamati:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	2 years	6 months
2	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	18 months	6 months
3	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	18 months	6 months
4	Intentionally Cause Injury [Crimes Act 1958 (Vic) s 18]	10 years [Crimes Act 1958 (Vic) s 18]	2 years	6 months

5	Intentionally Cause Serious Injury [Crimes Act 1958 (Vic) s 16]	20 years [Crimes Act 1958 (Vic) s 16]	4 years 9 months	Base
6	Assault [Common Law]	5 years [Crimes Act 1958 (Vic) s 320]	12 months	None
Total Effective Sentence:		6 years and 9 months’ imprisonment
Non-Parole Period:		4 years 9 months’ imprisonment
Pre-sentence Detention Declared:		283 days

1. In relation to Jahdon Tamati, I would impose sentences as follows; for the false imprisonment of Demirkol, two years’ imprisonment; for the false imprisonment of Salatas, 18 months’ imprisonment; for the false imprisonment of Trigg, 18 months’ imprisonment; for the charge of intentionally causing injury to Trigg, two years’ imprisonment as presently imposed.  For the charge of intentionally causing serious injury to Demirkol, I would impose a sentence of four years’ imprisonment, and make that the base sentence.  I would retain the sentence of six months’ imprisonment in relation to the common law assault, to be served concurrently with the other sentences imposed upon Jahdon Tamati; and I would cumulate six months of each of the false imprisonment sentences and also six months of the sentence for intentionally causing injury to Trigg.  On my calculations, the result is a head sentence of six years’ imprisonment.

1. I would order that Jahdon Tamati serve four years and three months’ imprisonment before becoming eligible for parole. 

1. I set out below in tabular form the effect of the above process of re-sentencing Jahdon Tamati:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	2 years	6 months
2	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	18 months	6 months

3	False Imprisonment [Common Law]	10 years [Crimes Act 1958 (Vic) s 320]	18 months	6 months
4	Intentionally Cause Injury [Crimes Act 1958 (Vic) s 18]	10 years [Crimes Act 1958 (Vic) s 18]	2 years	6 months
5	Intentionally Cause Serious Injury [Crimes Act 1958 (Vic) s 16]	20 years [Crimes Act 1958 (Vic) s 16]	4 years	Base
6	Assault [Common Law]	5 years [Crimes Act 1958 (Vic) s 320]	6 months	None
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		4 years 3 months’ imprisonment
Pre-sentence Detention Declared:		283 days

BONGIORNO JA:

1. I agree with Harper JA. 

1. The orders of the Court will be as His Honour has indicated.  The PSD of 283 will be declared as PSD in respect of each of the prisoners.  Any ancillary orders will be confirmed. 

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