Testalamuta v The Queen

Case [2007] NSWCCA 258

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      TESTALAMUTA v R [2007]  NSWCCA 258

FILE NUMBER(S):
2006/5469 (formerly 2006/2814)

HEARING DATE(S):               18 April 2007

JUDGMENT DATE: 4 September 2007

PARTIES:
Sammy TESTALAMUTA (applicant)
REGINA (respondent)

JUDGMENT OF:       McClellan CJ at CL Hidden J Rothman J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/21/3200

LOWER COURT JUDICIAL OFFICER:     Sides DCJ

COUNSEL:
Mr P Byrne SC (applicant)
Ms V Lydiard (respondent)

SOLICITORS:
G Goold (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
Sentence
specially aggravated breaking and entering
maliciously inflicting grievous bodily harm with intent
attempt to intimidate witness in prosecution against applicant
applicant on bail at the time
whether sentence is manifestly excessive
assessment of objective gravity of offences
relationship of sentences to standard non-parole periods

LEGISLATION CITED:
Crimes Act 1900

CASES CITED:
R v Amohanga & Rai (2005) 155 A Crim R 202
R v El-Andouri [2004] NSWCCA 178
R v Fidow [2004] NSWCCA 172
R v Duncan & Perre [2004] NSWCCA 431
R v Kirkland [2005] NSWCCA 130
R v Bobak [2005] NSWCCA 320
Vragovic v R [2007] NSWCCA 46
R v Engert (1995) 84 A Crim R 67
R v Way (2004) 60 NSWLR 168
McArthur v R [2006] NSWCCA 200
Pearce v The Queen (1998) 194 CLR 610

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/5469 (formerly 2006/2814)

McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J

4 September 2007

Sammy Testalamuta v Regina

Judgment

  1. McCLELLAN CJ at CL:  I agree with Hidden J.

  2. HIDDEN J:  The applicant, Sammy Testalamuta, pleaded guilty in the District Court to the following charges:

    (1) Breaking and entering a dwelling house, knowing there to be a person inside, and being armed with a dangerous weapon, a gun, and committing therein a serious indictable offence, namely, threatening to cause injury to a person to be called as a witness in judicial proceedings, intending to influence him not to attend court as a witness: an offence of specially aggravated breaking and entering under s112(3) of the Crimes Act;

    (2) Maliciously inflicting grievous bodily harm with intent to do grievous bodily harm: an offence under s33 of the Act.

  3. Both offences carry a maximum sentence of 25 years imprisonment and a standard non-parole period of seven years.  In addition, the applicant asked the sentencing judge to take into account on a form 1 an offence under s93G(1)(c) of the Act, that is, carrying a firearm in a manner likely to endanger the safety of another person.

  4. He had embarked upon a trial on a different indictment, which included a charge of shooting with intent to murder and the charge of carrying of a firearm in a manner likely to endanger the safety of a person.  However, on the second day of the trial he pleaded guilty after a fresh indictment was presented containing the two charges I have set out above, and on the basis that the firearm charge…

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Details
AGLC
Testalamuta v The Queen [2007] NSWCCA 258
Case
[2007] NSWCCA 258
Decision Date

CaseChat Overview and Summary

In Testalamuta v The Queen, the applicant was convicted of two offences: specially aggravated breaking and entering and maliciously inflicting grievous bodily harm with intent, in addition to an attempt to intimidate a witness in the prosecution against him. The applicant was on bail at the time of the offences and was sentenced to concurrent terms of imprisonment for fifteen years, with a non-parole period of ten-and-a-half years. The applicant sought leave to appeal against the sentences, arguing that they were manifestly excessive.

The legal issues before the court were whether the sentences were manifestly excessive and if the court had adequately considered the objective gravity of the offences and the relationship of the sentences to the standard non-parole periods. The court had to assess whether the sentences reflected the appropriate balance between punishment and deterrence, and whether the sentencing judge had properly exercised his discretion in determining the appropriate length of the non-parole periods.

The court found that the sentences were not manifestly excessive and that the sentencing judge had adequately considered the objective gravity of the offences and the relationship of the sentences to the standard non-parole periods. The court noted that the applicant had a history of violence and had breached his bail conditions by approaching the victim's premises. The court also noted that the applicant had pointed a gun at a witness, which demonstrated a clear intent to intimidate the victim. The court concluded that the sentences reflected the appropriate balance between punishment and deterrence and that the sentencing judge had properly exercised his discretion in determining the appropriate length of the non-parole periods.

The court granted leave to appeal but dismissed the appeal, finding that the applicant had not demonstrated that the sentences were manifestly excessive. The court noted that the sentences were within the range of sentences that could be imposed for the offences and that the sentencing judge had adequately considered the relevant factors in determining the appropriate length of the non-parole periods. The court also noted that the applicant had a history of violence and had breached his bail conditions, which were relevant factors in determining the appropriate length of the sentences.

Orders

Orders of the court

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Background

Background to the litigation

On each charge in the indictment, taking into account the form 1 matter in connection with the first of them, the applicant was sentenced to concurrent terms of imprisonment for fifteen years, to commence on 7 November 2003, comprising a non-parole period of ten-and-a-half years and a balance of term of four-and-a-half years. He seeks leave to appeal against those sentences. Facts The sentencing judge summarised the facts in his remarks on sentence as follows:Prior to the events that give rise to these offences, the victim [Stephen Sheath] and Patricia Mathews had been involved in a de facto relationship. They had two children during that relationship. Those children had resided with the victim since October 2002. It was around that time that Ms Mathews had commenced a relationship with the offender. On 15 December 2002 the offender was charged with assaulting the victim Sheath and causing him actual bodily harm. This matter arose during an argument over access for Ms Mathews to one or more of her children. The assault occurred whilst the victim was holding one of the children and it was by means of punching and kicking. It was a condition of his bail in connection with that matter that he not approach the victim’s premises. In breach of his bail condition, on the evening of 6 November 2003, the offender went to the victim’s home. The front door was closed. It is clear that he forced it open using the sole of his foot. At this time, the victim and his young son, then aged five, were in the lounge room of the house playing an electronic game. The other child was not there but with the grandmother. When the victim stood up, the offender said to him: “Do you fucking think you’re going to court tomorrow.” Sheath replied: “Yes, I fucking am.” The hearing of the assault charge against the offender was scheduled for the Liverpool Local Court on 7 November, that is the following day. The offender said in response to the victim: “Right, we will see about that.”At this point, the victim noticed the offender was carrying a silver pistol. He told his son to go out the back. His son complied with that direction and the offender [victim?] ran out after him. When he was near the back door, the victim saw the offender was behind him and still holding the gun. He noticed the offender had transferred it to his left hand and pulled back a lever with his right hand. This appears to have been a cocking mechanism. The offender then said that he was going to kill the victim. The gun went off and the bullet struck the victim in the upper thigh. It apparently passed through his leg. The wound began to bleed. The victim went out the door and went up to the side of the house to check on his son. Having seen that his son was uninjured and at the front of the house, he returned to the back door to see if the offender had gone. When he looked through the screen door, he was surprised to see that the offender was still in the kitchen. At this time, the offender was standing near the refrigerator. He, that is, the offender, said: “You’re gone mate. You’re fucking gone this time.” The offender then reached into his pocket and pulled out another bullet. The victim tried to lock the screen door and he called out to a passer-by to call the police.After the offender had kicked the screen door three or four times, he repeated: “You’re fucking gone, mate,” and then discharged the gun. The bullet entered the victim’s hand, as it was against the screen door. When the victim saw the offender trying to reload the gun again, he opened the door, went into the kitchen, picked up a chair and swung it at the offender hitting him on the arm. The offender ran out of the kitchen to the front of the house. The victim went and collected his son.The offender was seen to enter a white BMW and drive it away. This was seen by a witness, Mr Sinclair, who noted the number plate of the vehicle. When this particular witness glanced at the offender, when the offender was sitting in the car, the offender pointed the gun in the direction of the witness. However it was not discharged.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ
Before parting with the matter, however, I should add this. The fact that his Honour passed the same sentences, to be served concurrently, for both of the principal offences suggests that he may have had an eye only to the aggregate sentence, without considering the appropriate sentence for each charge in accordance with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. One might have thought that a distinction in sentence was called for, given the different nature of the criminality of the two offences and, particularly, the fact that the form 1 matter was taken into account in sentencing for the aggravated break and enter offence. However, this point was not taken in the application. In any event, as the sentence for the aggravated break and enter is to stand, any adjustment of the sentence for the grievous bodily harm offence would be of no practical effect.Conclusion I am not persuaded that any of the challenges to the sentences has been made good. I would grant leave to appeal but dismiss the appeal. ROTHMAN J: I agree with Hidden J.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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