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:

I will ask Harper JA to deliver the first judgment.

HARPER JA:

Introduction

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.

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.

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.

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.

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…

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 Tamati v The Queen

Details

AGLC: Tamati v The Queen [2012] VSCA 153
Case: [2012] VSCA 153
Decision Date: 29 June 2012

CaseChat Overview and Summary

Tamati and two co-defendants were convicted for various offences including false imprisonment, intentionally causing injury, and intentionally causing serious injury. They appealed against their sentences. The appeal focused on whether the sentencing judge had appropriately considered the differences in age, criminal history, and culpability between Tamati and his co-offenders. The court found that the sentencing judge had not sufficiently addressed these factors, leading to an imbalance in the sentences imposed. The court held that the differences between Tamati and his co-offenders warranted a re-assessment of his sentence.

The primary legal issue before the court was whether the sentencing judge had correctly applied the principles of parity in sentencing. The court considered whether the sentencing judge had given proper weight to the mitigating factors of Tamati's younger age, lesser criminal history, and comparatively lower culpability. The court concluded that the sentencing judge had not adequately taken these factors into account, which resulted in an unfair disparity between Tamati's sentence and those of his co-offenders.

In reaching its decision, the court emphasised the importance of parity in sentencing, ensuring that sentences reflect the individual circumstances and culpability of each offender. The court noted that Tamati's age and criminal history were significant mitigating factors that should have been more prominently considered. Given the sentencing judge's failure to properly weigh these factors, the court allowed the appeal and ordered that Tamati be re-sentenced. The court found no point of principle in the matter, indicating that the outcome was specific to the unique circumstances of this case.

Orders