The Queen v Mamarika - [2019] NTCCA 24

CITATION: The Queen v Mamarika [2019] NTCCA 24
PARTIES: THE QUEEN

v
MAMARIKA, Ian

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 3 of 2019 (21830950)
DELIVERED:  30 December 2019
HEARING DATES:  5 December 2019
JUDGMENT OF:  Grant CJ, Southwood and Kelly JJ
CATCHWORDS:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy
Respondent sentenced to imprisonment for two years and three months – Sentence suspended on conditions after the respondent had served nine months – Objective circumstances placed offending in the middle range of seriousness – Starting point of three years’ imprisonment disproportionate to the objective circumstances of the offending – Sentence manifestly inadequate – At time appeal heard respondent had been in home community for eight months on order suspending sentence – Residual discretion to dismiss prosecution appeal if interests of justice require – To allow the appeal and resentence the respondent would disrupt rehabilitation, cause the respondent significant confusion, and give rise to unfairness – Circumstances such that residual discretion exercised to dismiss appeal even though manifest error demonstrated.
Criminal Code 1983 (NT) s 181
R v Wilson (2011) 30 NTLR 51, Smiler v The Queen [2018] NTCCA 2, The Queen v Ryan; Miller v The Queen [2019] NTCCA 20, TM v The Queen [2017] NTCCA 3, referred to.
REPRESENTATION:
Counsel:
Appellant:D Morters SC
RespondentNo appearance
Solicitors:
Appellant:Office of the Director of Public Prosecutions
RespondentNo appearance
Judgment category classification: B
Number of pages: 8

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Mamarika [2019] NTCCA 24

No. CA 3 of 2019 (21830950)
BETWEEN:

THE QUEEN

Appellant

AND:

IAN MAMARIKA

Respondent

CORAM: GRANT CJ, SOUTHWOOD and KELLY JJ
REASONS FOR JUDGMENT
(Delivered 30 December 2019)
THE COURT:

This is a Crown appeal against sentence on the ground of manifest inadequacy. For the reasons which follow, we have come to the conclusion that the sentence imposed in this case was so manifestly inadequate as to constitute an error in point of principle. However, at the time the appeal came before this Court the respondent had been back in his home community for almost eight months on an order suspending sentence under supervision by Community Corrections. Those circumstances were such that we have exercised the residual discretion to dismiss the appeal even though manifest error has been demonstrated.
Background
On 6 February 2019 the respondent pleaded guilty to one count of unlawfully causing serious harm contrary to s 181 of the Criminal Code 1983 (NT). The maximum penalty for that offence is imprisonment for 14 years.
The respondent was 24 years of age at the time he committed the offence. The victim was his 21 year old cousin. The respondent and the victim lived on Groote Eylandt. The respondent was told by somebody that the victim had engaged in sexual intercourse with the respondent’s girlfriend. The respondent then concealed…

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 The Queen v Mamarika

Details

AGLC: The Queen v Mamarika [2019] NTCCA 24
Case: [2019] NTCCA 24
Decision Date: 30 December 2019

CaseChat Overview and Summary

The Queen appealed against a sentence imposed on the respondent, Mamarika, by the Supreme Court of the Northern Territory. Mamarika had pleaded guilty to unlawfully causing serious harm to his cousin. The Crown contended that the sentence of two years and three months imprisonment, suspended after nine months, was manifestly inadequate.

The legal issues before the Court of Appeal were whether the sentence imposed was so disproportionate to the objective circumstances of the offending as to constitute an error in principle, and if so, whether the Court should exercise its residual discretion to dismiss the Crown's appeal. The Court was required to consider the seriousness of the offence, Mamarika's criminal history, and the circumstances that had arisen since the imposition of the original sentence.

The Court found that the objective circumstances of the offending placed it in the middle range of seriousness, and that a starting point of three years imprisonment would have been more appropriate. Consequently, the sentence imposed was found to be manifestly inadequate, constituting an error in principle. However, at the time of the appeal hearing, Mamarika had already served eight months of his suspended sentence in his home community under supervision. The Court determined that allowing the appeal and resentencing Mamarika would disrupt his rehabilitation, cause him significant confusion, and result in unfairness. Therefore, the Court exercised its residual discretion to dismiss the appeal, despite the demonstrated error in the original sentencing.

Orders

Orders of the court

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Background

Background to the litigation

This is a Crown appeal against sentence on the ground of manifest inadequacy. For the reasons which follow, we have come to the conclusion that the sentence imposed in this case was so manifestly inadequate as to constitute an error in point of principle. However, at the time the appeal came before this Court the respondent had been back in his home community for almost eight months on an order suspending sentence under supervision by Community Corrections. Those circumstances were such that we have exercised the residual discretion to dismiss the appeal even though manifest error has been demonstrated.Background On 6 February 2019 the respondent pleaded guilty to one count of unlawfully causing serious harm contrary to s 181 of the Criminal Code 1983 (NT). The maximum penalty for that offence is imprisonment for 14 years. The respondent was 24 years of age at the time he committed the offence. The victim was his 21 year old cousin. The respondent and the victim lived on Groote Eylandt. The respondent was told by somebody that the victim had engaged in sexual intercourse with the respondent’s girlfriend. The respondent then concealed a machete under his shirt and went looking for the victim. The respondent found the victim, confronted him with the accusation and threatened to kill him. The offender and the victim then engaged in a consensual fistfight during which they traded blows before the respondent’s nose began to bleed as a result of one of those blows. The respondent then pulled the machete from under his shirt and struck the victim with it on the left forearm, the left side of his neck and the right elbow. The victim was taken by ambulance to the Alyangula health clinic and then evacuated to the Royal Darwin Hospital. He was treated there for a large laceration approximately 20 centimetres in length over the left side of his neck; a deep laceration to the outer aspect of his left forearm; a superficial laceration approximately seven centimetres in length to the outer aspect of his right elbow; and a superficial laceration to the left shoulder. The cut on the victim’s neck transected three major neck muscles and caused a blood clot in the deep muscle tissues. The cut on the victim’s forearm penetrated to the bone and lacerated six tendons in the forearm. Both wounds required extensive surgical repair. If they had gone untreated it is likely that the victim would have experienced functional loss. The respondent left the scene following the assault and actively avoided police. Police spoke to the respondent’s father and impressed on him the importance of the offender handing himself in. The offender surrendered to police the following day and was arrested. He declined to participate in an interview with police. The offender had a criminal history which included convictions for recklessly endangering life and being armed with an offensive weapon. Those offences had been committed in November 2015 and July 2016 respectively. The first of those offences involved the offender throwing a spear and firing a slingshot at another group of males. He was sentenced to imprisonment for 14 months for that offence which was suspended after he had served almost three months in prison.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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