The King v Mamarika

Case [2024] NTCCA 5

CITATION:The King v Mamarika [2024] NTCCA 5

PARTIES:THE KING

v

MAMARIKA, Anthony

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 1 of 2023 (22041054)

DELIVERED:  16 April 2024

HEARING DATE:  22 May 2023

JUDGMENT OF:  Grant CJ, Brownhill and Burns JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy

Whether sentence manifestly inadequate – Respondent’s moral culpability reduced by profound disadvantage including childhood deprivation and cognitive dysfunction – Punishment for risk of danger to occupant of building properly incorporated into sentence for aggravated reckless endangerment of life and not also sentence for arson – Fire confined – Little risk of spread to building – Damage caused not significant in monetary terms – Sentence for arson offence within range – Overall sentence not manifestly inadequate having regard to total criminality conduct – Appeal dismissed.

Criminal Code 1983 (NT) s 174C, s 174G, s 243

Ajax v The Queen (2006) 17 NTLR 80, Andalong v O’Neill [2017] NTSC 77, Bugmy v The Queen (2013) 249 CLR 571, Muldrock v The Queen (2011) 244 CLR 120, Pearce v The Queen (1998) 194 CLR 610, R v De Simoni (1981) 147 CLR 383, R v O’Connor [2014] NSWCCA 53, R v Verdins (2007) 16 VR 269, The Queen v Roe (2017) 40 NTLR 187, Veen v The Queen (No 2) (1988) 164 CLR 465, referred to.

REPRESENTATION:

Counsel

Appellant:V Engel SC with T Grealy

Respondent:  A Abayasekara with K Roussos

Solicitors

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  29

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The King v Mamarika [2024] NTCCA 5

CA 1 of 2023 (22041054)

BETWEEN:

THE KING

Appellant

AND:

ANTHONY MAMARIKA

Respondent

CORAM:    GRANT CJ, BROWNHILL & BURNS JJ

REASONS FOR JUDGMENT

(Delivered 16 April 2024)

THE COURT:

  1. On 5 December 2022, the respondent was sentenced for one count of arson contrary to s 243(1) of the Criminal Code 1983 (NT) (Count 1), and one count of aggravated reckless endangerment of life contrary to ss 174C and 174G(a) of the Criminal Code (Count 2). The pleaded circumstance of aggravation was that the offence was committed ‘by the use of an offensive weapon, namely fire’.

  2. The maximum penalty applicable to the offence in Count 1 was life imprisonment, while that applicable to the offence in Count 2 was 14 years’ imprisonment. The respondent was sentenced to 2 years’ imprisonment on Count 1 and 5 years’ imprisonment on Count 2. The sentences were accumulated to the extent of 12 months, such that the total sentence imposed was 6 years’ imprisonment. A non-parole period of 4 years was imposed. The accumulated sentences and the non-parole period were backdated to commence on 23 December 2022 to take into account time served prior to…

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The King v Mamarika [2024] NTCCA 5
Case
[2024] NTCCA 5
Decision Date

CaseChat Overview and Summary

The Crown appealed against the adequacy of a sentence imposed on the respondent, Mamarika, by a sentencing judge. The dispute concerned whether the sentence for aggravated reckless endangerment of life and arson was manifestly inadequate, given the respondent's conduct and personal circumstances.

The court was required to determine three issues: first, whether the sentence for arson was manifestly inadequate; second, whether the total sentence reflected the overall criminality of the respondent's offending and was manifestly inadequate; and third, whether the non-parole period was manifestly inadequate. In considering these issues, the court had regard to the principles governing Crown appeals against sentence, which are generally to be a rarity and brought to establish matters of principle or to correct manifest inadequacy or inconsistency in sentencing standards.

The court reasoned that while arson is a potentially serious offence, its circumstances can vary widely, and the mitigating principles established in cases such as *Bugmy* and *Verdins*, relating to profound disadvantage including childhood deprivation and cognitive dysfunction, were applicable to the respondent. The court also applied the principle from *Pearce v The Queen*, that punishment for the risk of danger to an occupant of a building should be incorporated into the sentence for aggravated reckless endangerment of life, and not also into the sentence for arson, particularly where the fire was confined, the risk of spread was minimal, and the monetary damage was not significant. The court noted that the sentencing judge had taken into account the respondent's moral culpability being reduced by his profound disadvantage.

Ultimately, the court found that the sentence for arson was within the appropriate range, and the overall sentence was not manifestly inadequate, having regard to the totality of the respondent's criminality and his personal circumstances. The Crown had not advanced a specific argument that the non-parole period was manifestly inadequate. Accordingly, the Crown's appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The principles to be applied in Crown appeals are not in doubt. They are conveniently to be found in the judgment of this Court in The Queen v Roe[1]:Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders. The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.As to what will constitute an error in point of principle, in R v Riley this Court stated:In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle. His Honour said:“It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct.”These remarks do not operate to displace the principle expressed by King CJ in R v Osenkowski, namely:It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where the judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has been traditionally extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of an offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.The principles enunciated in House v The King remain applicable to the determination of manifest inadequacy. In the oft-quoted passage from that decision, the High Court stated:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R v Sidlow). Lord Reading LCJ said the court will not interfere because its members would have given a lesser sentence, but only if the sentence appealed from is manifestly wrong (R v Wolff). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R v Dunbar).In Hili v The Queen, the plurality reasons contain the following observations concerning the assessment of manifest inadequacy, in the absence of any assertion of specific error, on the basis that the sentence subject to appeal was unreasonable or plainly unjust:[A]ppellate intervention on the ground that the sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases”. Rather as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the statement of the reasons.[...] But what reveals manifest excess, or inadequacy, of sentence is consideration of all the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal.Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced. In R v BJW the New South Wales Court of Criminal Appeal stated:The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional. However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct. The case must be a compelling one before this Court will interfere. It is not sufficient that this Court would itself, in the position of the sentencing judge, have imposed a more severe sentence. However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error. Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere. (Footnotes omitted)As to the exercise of the residual discretion, in Green v The Queen the plurality of the High Court stated:A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.That principle has been accepted and applied by this Court in R v Hitanaya and R v Wilson. In R v Hitanaya this Court stated:The principles governing Crown appeals are not in doubt and are well known. They were discussed in R v Riley [(2006) [2006] NTCCA 10; 161 A Crim R 414 at [18]-[20]] and it is unnecessary to repeat that discussion. Even if the manifest inadequacy is such as to demonstrate error in point of principle, the Court must carefully consider the next step which involves determination as to whether this is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent resentenced.Following Hitanaya, and before Wilson was decided, s 414(1A) of the Criminal Code was enacted to provide that in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence. In R v Wilson Riley CJ considered the impact of s 414(1A) of the Criminal Code on the Court’s residual discretion, and described the ambit of the discretion in light of that section. His Honour stated:[Section 414(1A) of the Criminal Code] removes any need for the Court of Criminal Appeal to give consideration to ensuring that Crown appeals are “rare and exceptional”. Responsibility in that regard rests with the Director of Public Prosecutions.....Apart from double jeopardy considerations, the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.Accordingly, the principle of double jeopardy no longer requires this Court to ensure that appellate intervention is rare and exceptional in the manner spoken of in Hitanaya. It remains the case, however, that this Court will not intervene where no point of principle arises, and will be slow to intervene where there is a countervailing factor which may warrant the exercise of the residual discretion.(Footnotes omitted)Facts of the offending

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The facts of the offending are set out in the sentencing remarks of the primary judge:On 22 December 2020 you and RS were at Mindil Beach, where you drank alcohol. You both went to Uncle Sam's, where you purchased some food and returned to your house at One Mile Dam. You told RS to go to sleep. She stated she did not want to go to sleep as she was hungry, and began to eat her food. You became angry and began to yell at RS.You walked over to her and punched her once to the back of the head. You used your left clenched fist and continued to yell at her. RS became fearful and locked herself inside the bedroom. You tried to get into the room by kicking the door, but you were unable to gain entry. RS called 000 to speak to the police, and reported being hit by you. The person who took the call heard banging and smashing in the background. RS requested that she stay on the phone as she was scared. While she was on the phone to police, you dragged a nearby mattress towards the room before leaning it against the bedroom door, where she was taking refuge. You lit fire to the mattress, causing it to ignite, and smoke began to fill RS's room. You said, "I am going to make you suffocate and you will die." RS, while still on the phone to police, reported seeing the flames and described having difficulty breathing.You left the area. RS was unable to leave the room due to the ignited mattress blocking the door and all of the windows of the room being shut. Shortly afterwards, the fire brigade attended and extinguished the fire and forced open the bedroom door, which allowed RS to leave. She was taken to hospital by St John Ambulance.At about 2:08 am on the same morning, you returned to the location, and whilst holding your hands over your head, you approached police and said, "I give myself up." Police arrested you and you were taken to the Palmerston Watchhouse.The material components of the mattress were completely destroyed, with only the innerspring mattress remaining. The bedroom door of the dwelling, the door frame, walls and steps leading into the bedroom all suffered significant fire related damage, including significant charring.RS had difficulty breathing due to smoke inhalation. She also had tenderness to the back of her head, where you had punched her. In her victim impact statement, RS told the court she was in hospital because the smoke meant she could not breathe. She has said it makes her sad that you hit her. She was very frightened. She stated, "He did an awful thing to me."Further, she told the court her house was burnt, the mattress and blanket got burnt, there was lots of damage inside. She stated, "Anthony is not nice when he is drinking. He is violent."The decision of the primary judge The primary judge accepted that the facts revealed serious offending and persistence by the respondent in the offending conduct. The primary judge referred to a report from a psychologist which stated that the respondent had told the psychologist that he set fire to the mattress to terrify the victim and to burn the house down with the victim inside. The respondent had told the psychologist that he behaved badly when intoxicated and was prone to “raging”.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submitted that the non-parole period of 4 years represented approximately 67% of the overall sentence, a figure above the mandatory minimum. No specific argument had been advanced by the Crown to support the proposition that the non-parole period was manifestly inadequate.Consideration The Crown’s concession that the sentence imposed on Count 2 was not manifestly inadequate leaves open for consideration in this appeal only three matters:(a)Was the sentence imposed on this offender for this offence of arson manifestly inadequate?(b)Was the total sentence imposed on the respondent manifestly inadequate to reflect the overall criminality of his offending?(c)Was the non-parole period imposed manifestly inadequate? It is worthwhile reiterating what was said by this Court in Roe concerning Crown appeals against sentence, as extracted at the commencement of these reasons. That is, they should be a rarity brought only to establish some matter of principle, and to afford an opportunity to this Court to perform its proper function in laying down principles for the guidance of sentencing courts. In the context of this appeal, the performance of that function must necessarily take into account that in Ajax, Mildren J stated:Before leaving this appeal, I think something needs to be said about the current level of sentencing for offences of this kind. Arson is potentially an extremely serious offence as it carries a maximum penalty of imprisonment for life. The current level of sentences are, in my view, too lenient and need to be increased significantly.[10] That statement was expressly endorsed by Martin (BR) CJ, who said that “potential offenders are now on notice that in future they can expect to receive significantly longer sentences of imprisonment for this crime”;[11] and by Thomas J, who said that “I agree with the comments of Mildren J that sentences for this event should be increased taking account of … the factors he has identified”.[12] We respectfully agree with and adopt what was said by their Honours in that respect. However, the statement by Mildren J was immediately followed by the passage extracted at paragraph [36] above, to the effect that arson is an offence which can be committed in a wide variety of circumstances. Those circumstances were expressed to include whether the defendant has been brought up in an impoverished section of society resulting in dysfunction. That draws attention to the mitigating principles expressed in cases such as Bugmy and Verdins, which had clear application in this case. To the extent that the potentially aggravating circumstances of arson include whether the property was occupied at the time and the attendant level of risk to persons, in accordance with the principle expressed in Pearce, punishment for that feature of this offending was properly incorporated into the sentence imposed for the aggravated reckless endangerment of life offence and not also into the sentence imposed for the arson offence. For these reasons, this case is not an appropriate vehicle for this Court to lay down general principles regarding sentencing for offences of arson.