Tatipata v Davies, Hales and Thomas - [2002] NTSC 27

Tatipata v Davies, Hales & Thomas [2002] NTSC 27
PARTIES:ADRIEL TATIPATA

v
STUART DAVIS
PETER HALES
PETER THOMAS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NOS:20108006 (JA68/01), 9924387 (JA69/01), 20008274 (JA70/01)
DELIVERED:  2 May 2002
HEARING DATES:  12 April 2002
JUDGMENT OF:  THOMAS J
CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – sentencing – principal of totality – principal of parity – concurrency - whether sentence manifestly excessive – youthful first offender – multiple charges.
Crassen v R (1936) 55 CLR 509; Postiglione v The Queen (1996-1997) 189 CLR 295; The Queen v Scanlon (1987) 89 FLR 77, applied
REPRESENTATION:
Counsel:
Appellant:G. Bryant
Respondent:  G. Dooley
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200203
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Tatipata v Davis, Hales & Thomas [2002] NTSC 27
Nos. 20108006, 9924387, 20008274

BETWEEN:
ADRIEL TATIPATA

Appellant
AND:
STUART DAVIS,
PETER HALES
and PETER THOMAS

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 2 May 2002)

The appellant was sentenced in the Court of Summary Jurisdiction on 30 October 2001 in respect of five offences of assault committed over a period slightly in excess of two years.
The grounds of appeal as set out on the Notice of Appeal, are as follows:
“1. 9924387
(i)The sentence of one month and 21 days on file 9924387 was manifestly excessive,
2.20008274
(i)The sentence of five months and three days on count 1 and to be served cumulative on file 9924387 was manifestly excessive;
(ii)The sentence of one month and 18 days to be served cumulative on count 1 was manifestly excessive;
(iii)The sentence of 24 days to be served cumulative on count 2 was manifestly excessive.
3.20108006
(i)The sentence of 14 months and seven days to be served cumulative on files 9924387 and 20008274 was manifestly excessive.”
The principles to be applied in considering such appeals against sentence are set out in a number of authorities including; Cranssen v R (1936) 55 CLR 509 Dixon, Evatt and McTernan JJ at 520:
“….. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority. …..”
See also Raggett, Douglas & Miller v R (1990) 50 A Crim R 41 at 46.
The essential ground of appeal is that the sentence was manifestly excessive and failed to have regard to the principle of totality. With respect to the sentence imposed for the first offence which occurred on 2 May 1999. Mr Bryant for the appellant argued, in addition to the matters set out in the grounds of appeal, that this sentence does not have regard to the principle of parity with respect to the sentence which was imposed on the co-offender.
I will deal with the appeal as it relates to the principle of parity and then proceed to the other grounds of appeal.
At the date he was sentenced the appellant was 20 years of age. The offences were committed while he was between the ages of 18 to 20 years.
The first offence occurred on 2 May 1999. The findings of the learned stipendiary magistrate which are not challenged is the assault consisted of three punches to Mr Pethick after he intervened in an assault by the defendant’s companion upon another person. The bodily harm to Mr Pethick as a result of the appellant’s assault, consisted of bruising.
For this offence the appellant was convicted and sentenced to imprisonment for one month and 21 days to commence on 13 September.
With respect to this offence the submission of Mr Bryant on behalf of the appellant is that this sentence offends the parity principle of sentencing as expressed in the High Court decision of Postiglione v The Queen (1996 – 1997) 189 CLR 295. Mr Bryant read from the headnote at 295 – 296 per Dawson, Gaudron and Kirby JJ:
“Per Dawson, Gaudron and Kirby JJ. (1) The parity principle of sentencing requires there should not be a marked disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. In determining whether the parity principle has been observed, the different circumstances of co-offenders including degrees of criminality, must be considered. In assessing a sentence imposed on a co-offender, all components of the sentence must be taken into account, not only the head sentence. The total effect of a sentence on the co-offender must be considered, not only the increase in time to be served on top of a prior sentence.
(2) Where an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave should be refused rather than the appeal be dismissed.”
I am informed the co-offender, Christopher Davern, was 14½ years of age. He was released on a bond to be of good behaviour for 12 months. I am further informed that this was Christopher Davern’s fourth recorded offence of assault and that he was in breach of a suspended sentence. It was also submitted that Christopher Davern’s part in this offence had been of a more serious nature than that committed by this appellant.
The appellant in this matter had no prior convictions. However, the appellant in this matter was being dealt with as an adult he being 18 years of age. Christopher Davern as a juvenile was dealt with under a very different sentencing regime and in accordance with all the principles pertaining to juvenile offenders. In addition to this Christopher Davern is not a person who only just comes within the jurisdiction of the juvenile court. He was at the time of the offence only 14½ years of age. There is a significant difference in the eyes of the law between a 14½ year old boy and a boy of 18. An 18 year old boy is entitled to the consideration given by the Court to youthful offenders but he is in law an adult and is sentenced accordingly.
Because of the disparity in ages between the appellant and Christopher Davern, I do not consider there be a breach of the parity principle of sentencing.
I set out in full the sentences that were imposed for each offence.
As stated above, the sentence for the assault that occurred on 2 May 1999 was one month and 21 days imprisonment.
For the offence of aggravated assault that occurred on 10 November 1999, convicted and sentenced to five months and three days imprisonment cumulative upon the previous sentence. The facts found by the learned stipendiary magistrate in respect of that charge are as follows (t/p 45):
“On 10 November 1999, still at the age of 18, the defendant was involved in a particularly nasty assault on a Kurt Ferguson. The assault again occurred after midnight, about 1.30 in the morning. The victim, Ferguson, was in the street. He was approached by the defendant. He was struck with a fist to the nose and mouth by the defendant. There were a further two blows administered by the defendant to the left side of the victim’s head. Mr Ferguson fell to the ground and he curled up in a foetal position. He was then kicked by Mr Tatipata while he was on the ground.
Mr Tatipata then tried to drag the victim by his right arm along the ground and while he was doing this, he kicked the victim once to the body and he struck him once. Mr Tatipata then grabbed Mr Ferguson’s T-shirt and Mr Ferguson was able to slide out from the T-shirt and got away.
Mr Ferguson suffered injuries. A swollen and bruised left eye; bruising around the eyes and jaw; cuts to the inside of the mouth; a swollen neck and bruising to the right temple, back of the head and the top of his head.”
For the offence of assault on 28 April 2000 being the second assault upon Kurt Ferguson convicted and sentenced to one month and 18 days imprisonment. For the offence of assault on the same date on Mr Jessop sentenced to 24 days imprisonment cumulative.
The facts found by the learned stipendiary magistrate on these two charges are (t/p 45):
“On 28 April 2000, at the age of 19, Mr Tatipata once again assaulted Mr Ferguson. On this day, Mr Ferguson was in company with a Mr Jessop. The defendant approached Mr Ferguson, shaped up like a boxer, lunged at him. Mr Ferguson avoided contact with Mr Tatipata and ran away. He ran to the door of the Centrelink building at Casuarina. He was chased by Mr Tatipata. He was caught by Mr Tatipata. Mr Tatipata struck him once to the back and once to the top of his head and then struck him four times to the right forearm. At this time, Mr Ferguson was trying to open the door with his right arm and he was struck on the right arm as he was trying to open the door. Mr Ferguson got inside.
Didn’t stop there though. Mr Tatipata then felt the need to assault Mr Jessop. Mr Jessop was in the process of collecting Mr Ferguson’s thongs. He approached Mr Jessop and threw a punch which struck the back of Mr Jessop’s head and near the right ear. Mr Tatipata then struck him twice more to the head.
Mr Ferguson suffered injuries: cuts to the inside right cheek; a swollen lump and bruising on his right forearm; a pain in the back of his head. Mr Ferguson had some difficulty moving his right arm after the incident. Mr Jessop suffered a sore head.”
For the offence of assault upon his de facto wife, Kylie Marie Durston, on 28 May 2001, the appellant was convicted and sentenced to 14 months and seven days imprisonment cumulative upon the other sentences.
The facts found by the learned stipendiary magistrate on this charge are (t/p 46):
“On Monday 28 May 2001, the victim, Kylie Marie Durston, was a[t] home at 1/26 Emery Avenue, Woodroofe, with her de facto of two years, Adriel Gavin Tatipata. At about 7.30 pm, the defendant and victim engaged in a verbal argument in the lounge room. The defendant became angry and they moved to the kitchen where the defendant began to slap the victim to the head a number of times. The victim held her arms up in front of her face to protect herself but was unsuccessful. The defendant continue to slap the victim while he yelled abuse at her over a period of a couple of hours.
At about 1.30 am on Tuesday 29 May 2001, the defendant again began to yell at the victim while they were in the lounge room. The defendant punched the victim to the left side of the face causing a laceration on her cheek under her eye. At the time, the victim was sitting on the lounge. The victim got up and the defendant punched her to both sides of her face and around the head, causing bruising.
The victim then went and sat on the floor in the corner of the lounge room near the kitchen where the defendant kicked at her legs, causing bruising to both her legs. The defendant was wearing runners at the time. The victim was yelling out, ‘Stop, stop, please, I’m fucked up here.’ Using his left hand, the defendant then stabbed the victim with a pair of small metal scissors to the upper thigh of the victim’s right leg causing two punctures, allowing blood to pour freely.
The victim got up, ran towards the front door. The defendant yelled, ‘Don’t try to run out that door, I’ll catch you and fuck you up.’ The victim tried to run from the defendant. The defendant grabbed the victim and began to punch her several times with a closed fist to the face.
Over the next few hours, the defendant continued to both physically and verbally abuse the victim. At about 10.40 am, when he had fallen asleep, the victim was able to sneak out and went next door.”
The total sentence for the five offences was 21 months and 73 days.
The learned stipendiary magistrate then made the following order on 31 October 2001 (t/p 53):
“I order that the sentence be suspended on 13 March 2002, that is after serving six months as follows: the first six months of the unserved sentence is suspended upon the defendant entering into a home detention order for a period of six months; to reside at 32 Moray Street, Karama.
There are three conditions attached to that home detention order. (1) upon release from gaol, he is to report immediately to a Community Corrections officer at the Home Detention Unit, 266 Trower Road, Casuarina. (2) he is to undergo psychological counselling for displays of anger, as directed by the Director of Correctional Services. (3) he is to undergo drug and alcohol counselling as directed by the Director of Correctional Services.
And (2) the balance of the unserved sentence of nine months and 73 days, is suspended generally, I specify pursuant to section 40(6), for a period of two years from the day hereof during which the offender is not to commit another offence punishable by imprisonment, if the offender is to avoid being dealt with under section 43. And I recommend that while the defendant is in prison, he undergo the therapeutic cannabis program.”
His Worship then went on to say:
“The suspended sentence becomes operational on 13 September next year, that is after he’s completed his home detention.”
Mr Bryant, counsel for the appellant, submitted that the learned stipendiary magistrate did not have due regard to the principle of totality and quoted a number of authorities in support of the principle that Mr Bryant referred to as the presumption of concurrency Brown v Lynch (1982) 5 A Crim R 404; The Queen v Scanlon (1987) 89 FLR 77. Mr Bryant argued that this applied particularly to the offences of assault that occurred on 28 April 2000 which arose from the same incident.
The issue of concurrent and cumulative sentences was the subject of consideration in the Court of Criminal Appeal decision in The Queen v Scanlon (supra). In addressing the issue of concurrent and cumulative sentences Nader J at 84:
“….. I think there is a tendency to elevate conventional practice to the status of principle. Courts should consider well before purporting to lay down matters of principle where no principle presently exists. There is a great overriding principle governing the sentencing process. It is simple and clear to enunciate, if difficult to apply. It should never be minimised by elevation to principle status those lesser rules which are convenient devices for the attainment of justice. …..”
and at 85 quoting his own remarks in Lade v Mamarika (1986) 83 FLR 312 at 315 – 316:
“It is, in my view, the overriding requirement that the aggregate sentence made up of the individual sentences should not lack proportion to the total criminality of the offender’s conduct. This last can fairly be regarded as a true principle of law. To fail in this respect is to impose an unjust sentence: either too lenient or too severe. From the point of view of the prisoner and the community, the aggregate sentence is of paramount importance.”
and at 86:
“The paramount task of the judge is to fix a total sentence by reference to the whole of the criminal behaviour: how the component elements of that sentence are arranged to make up the total, whilst generally done according to sensible rules, is ultimately a matter of expedience. ...”
I am not persuaded that the learned stipendiary magistrate in imposing cumulative sentences erred in law. The imposition of cumulative sentences was within his discretion.
The important issue is that “the aggregate sentence made up of the individual sentences should not lack proportion to the total criminality of the offenders conduct.”
The submission on behalf of the appellant is that the learned stipendiary magistrate in proportioning relevant sentences for each discrete offence undertook an arithmetic exercise producing a sentence which did not accurately reflect the totality of the criminal behaviour.
I am not persuaded in looking at the facts of each of the assaults the aggregate sentence lacks proportion to the “total criminality of the offenders conduct”.
I then turn to consider the other ground of appeal which was that the sentences are manifestly excessive.
Mr Bryant, on behalf of the appellant, submitted that the learned stipendiary magistrate failed to appreciate that the appellant was a first offender.
I do not accept this submission. The learned stipendiary magistrate from his remarks on sentence was well aware the appellant had no prior convictions. In the course of his reasons for sentence, the learned stipendiary magistrate said this (t/p 48 - 49):
“The second thing I take into account is that the defendant is a person who comes before the court as a first offender, in this sense. He is a person who does not have a criminal record for assault. Before any of these assaults were committed, he had not appeared before a court to be dealt with for assault, so it could be said that he (inaudible) warning given to him as a result of a court appearance.
However, the defendant is in a different situation to a person who comes before the court on one charge of assault. He appears before the court essentially on five first offences for assault. The offences occurred over a period of two years and 26 days. To my mind, he is entitled to less leniency than a person who has less time to consider the ramifications or consequences of his behaviour.
He is, to my mind, entitled to less leniency than a person who commits five assaults on the one night or five assaults over a period of one month. The defendant has had more time to consider the consequences of his behaviour over a period of two years. A period of good behaviour after the commission of the offence, prior to that offence being dealt with by a court, can entitle a person to leniency.
Commit an offence a year ago, you don’t get into any trouble before the matter is dealt with, it is the potential to show that the defendant is a person with prospects of rehabilitation. It has the potential to show the person’s entitled to leniency. A person who offends after the commission of the offence, before the offence is dealt with, is entitled to less leniency than a person who doesn’t offend after the commission of an offence before it’s dealt with.”
On behalf of the appellant, it is submitted the learned stipendiary magistrate failed to properly take into account the age of the appellant when the offences occurred and the age of the offender at time of sentence.
I am satisfied the learned stipendiary magistrate was well aware of the age of the appellant, that he was dealing with a young offender who was from a supportive family, and the importance of rehabilitation as an aspect of sentencing. At t/p 49 his Worship said:
“The next thing I take into account is the defendant’s age and I remind myself and it’s at the forefront of my mind that courts generally emphasis rehabilitation, in dealing with young or younger defendants. The defendant appears to come from a good home, despite that he was seduced at the age of 14 by alcohol and cannabis. He became a self-described heavy cannabis user as [w]ell as a heavy drinker.”
The learned stipendiary magistrate had the benefit of a very detailed report dated 24 October 2001, a Home Detention assessment report, an Alcohol & Other Drug assessment report from Correctional Services and the report of psychologist Mary Crabbe dated 12 September 2001.
In his reasons for sentence, the learned stipendiary magistrate deals at some length with the issue of whether the appellant has shown genuine remorse. The learned stipendiary magistrate concludes that the sorrow the appellant feels is for himself and the mess he has got himself into rather than the pain he has inflicted on other persons. On the material that was before the learned stipendiary magistrate this is a conclusion that was open to him.
The learned stipendiary magistrate expressed the concerns he had about the appellant’s immature attitude to his offending. The appellant had an excuse for each of his acts of assault that is not acceptable. These included his own inability to control his anger and what he says was the influence of alcohol and cannabis upon his actions.

Despite the concerns expressed by the learned stipendiary magistrate he nevertheless did not conclude that the appellant’s prospects of rehabilitation “are poor or hopeless”. The learned stipendiary magistrate expressed himself in this way during the course of his reasons for sentence.
Mr Bryant on behalf of the appellant, submits that the imposition of a home detention order of six months, upon the completion of a six month term of imprisonment combined with a suspended sentence of 11 months and 73 days, was excessive. It is the submission on behalf of the appellant that the imposition of a home detention order would have been a more appropriate disposition.
I consider the learned stipendiary magistrate gave very careful consideration to the way in which he structured his sentence. In his reasons for sentence he indicated concern about the serious aspects of the assault, the principle of general deterrence and the need to give protection to the community. His Worship indicated that a prison sentence of close to two years would normally mean the offender being released on parole after approximately 11 or 12 months. The learned stipendiary magistrate made a reference to a lengthy gaol term doing little to rehabilitate the offender. He made further reference to the age of the offender, the serious aspects of the assault, the fact there was an offence committed whilst on bail, the concerns of the community particularly with respect to the offender’s assault upon his de facto. Balancing all these facts, his Worship concluded there should be a six month sentence of imprisonment followed by home detention for six months and the balance of the sentence suspended.
In structuring the sentence in this way, the learned stipendiary magistrate was attempting to do justice to all the aspects of sentencing a youthful offender which he is required to take into account.
I am not persuaded that there has been any error demonstrated in his Worship’s reasons for sentence or that looking at the sentences both individually and in their totality I could conclude they were manifestly excessive.
Accordingly, this appeal is dismissed.

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