Wurramarba v Passmore - [2003] NTSC 121

Wurramarba v Passmore [2003] NTSC 121
PARTIES:WURRAMARBA, Heather

v
PASSMORE, Malcolm

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA29 of 2003 (20216373)
DELIVERED:  16 December 2003
HEARING DATES:  26 November 2003
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Appellant:D Dalyrmple
Respondent:  G McMaster
Solicitors:
Appellant:Miwatj Aboriginal Legal Service
Respondent:  DPP
Judgment category classification:    C
Judgment ID Number:
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Murramarba v Passmore [2003] NTSC 121

No. JA29 of 2003 (20216373)
BETWEEN:

HEATHER WURRAMARBA

Appellant

AND:

MALCOLM PASSMORE

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 16 December 2003)

This is an appeal against sentence under the provisions of the Justices Act.
The appellant had been charged with and pleaded guilty to, one count of unlawfully entering a dwelling house which at the time was occupied with intent to commit a crime therein, namely stealing, contrary to s 213 of the Criminal Code, and with one count of stealing ten cans of XXXX Gold beer, contrary to s 210 of the Criminal Code. Both of those offences occurred at Alyangula on 2 November 2002.
The agreed facts were that on 1 November 2002 the appellant and her co-offenders Leonora and Denise Lalara travelled from Angurugu to Alyangula. Outside the Alyangula Recreation Club they purchased a carton of beer from an unknown male. They took the carton to the beach where they consumed it and become intoxicated.
On 2 November 2002 they walked to the single residents’ accommodation. The appellant acted as a lookout whilst the Lalara sisters tried the doors to the rooms. On finding an unlocked door the Lalara sisters went inside and took eleven cans of XXXX Gold beer from a refrigerator. They handed the beer to the appellant who was just outside the door. The Lalara sisters then went back inside to obtain more beer.
The occupant of the room, Mr David Anderson, was asleep inside and was awoken by the disturbance. He chased the women from the room. He caught Denise Lalara by the shirt. However, she was able to slide out of her clothes and to run away. The Lalara sisters having made good their escape, Mr Anderson caught up with the appellant who was still carrying nearly all of the beer.
Mr Anderson then took the appellant to the Alyangula police station. Ten cans of beer were later located where the appellant had been apprehended. She was held in police custody due to her intoxicated state. She later participated in an electronic record of interview during which she admitted her part in the offence. She indicated that the reason for the offence was “to make ourselves really drunk”. She was then charged.
On 3 November 2002 the Lalara sisters were taken from Angurugu to Alyangula for questioning by police. Both admitted their involvement in the offences during separate records of interview. Both indicated that they had drunk one shared can of beer whilst the appellant remained in possession of the other cans. Both indicated the purpose for the commission of the offence was to obtain more beer to drink. They were then both charged.
The circumstances of the appellant were not in dispute. She was 38 years of age, married with no children and living in Angurugu. She usually resided, however, at an outstation nearby with her extended family.
She was in receipt of an unemployment benefit amounting to $390 per fortnight. That benefit was expended on rent and the daily needs of her and her husband, most particularly, food. The appellant was born on Groote Eylandt. She was raised in Umbakumba by her parents and their extended family. She was educated at the Umbakumba community school. She attended primary school and received some post primary education. She believed that she left school at around the age of 16 years of age. She speaks good English although her first language remains Anindilyakwa and she only utilises the English language when required.
Upon leaving post primary education she married and appears never to have been in employment. She was a first offender having never previously appeared in court.
Section 78B of the Sentencing Act provides as follow:
“(1)A court that finds a person guilty of an aggravated property offence must take into account the purpose of this Division before sentencing the person in relation to the offence.
(2)A court that records a conviction against an offender found guilty of an aggravated property offence must –
(a)order the offender to serve a term of imprisonment; or
(b)order the offender to participate in an approved project under a community work order,
unless there are exceptional circumstances in relation to the offence or the offender.
(3)A court that orders an offender to serve a term of imprisonment in accordance with subsection (2)(a) may only wholly suspend the sentence on the offender entering into a home detention order.
(4) Nothing in subsection (2) is to be taken to affect the power of a court to make any other order authorised by or under this or any other Act in addition to an order made in accordance with the subsection.”
Section 78A provides:
“The purpose of this Division is to ensure that community disapproval of persons committing aggravated property offences is adequately reflected in the sentences imposed on those persons.”
An offence against s 213 of the Criminal Code is an aggravated property offence but an offence against s 210 (stealing) is not.
No submission was directed to Mr Gillies SM who sentenced the appellant that there were exceptional circumstances in relation to the offence or the offender.
Mr Gillies SM imposed an aggregate sentence on the co-offender, Denise Lalara, of imprisonment for11 months. In addition he ordered that she serve the balance of a suspended sentence, the conditions of her release in respect of which had been breached by the instant offending. That resulted in a total of 13 months imprisonment and his Worship specified a non-parole period of eight months. The co-offender Denise Lalara was a person with a substantial criminal record.
The other co-offender, Leonora Lalara, was sentenced at a later sittings at the Alyangula Court of Summary Jurisdiction before a different Magistrate, Mr Lowndes SM. So far as Leonora Lalara was concerned, she pleaded guilty. It was put that she was 29 years of age at the time of the offending and would turn 30 in March of that year. Her most recent partner and ex husband was at the time in custody on remand awaiting to be dealt with in relation to an aggravated assault on Leonora Lalara as a result of which she suffered injuries to her back, head and legs and she was stabbed with a spear gun, scissors, a knife, and with a piece of wire.
Prior to the commencement of this relationship it was put that Leonora Lalara did not consume alcohol but that she used alcohol subsequently to block out the abuse of that relationship. Their relationship had lasted for just over 12 months and it was put that the entire relationship was characterised by domestic violence and she was subjected to abuse on a daily basis. Leonora Lalara had not been able to obtain any counselling. It was put on behalf of Leonora Lalara that the suggestion to carry out the stealing came from her sister Denise Lalara and that Leonora just went along with it because she was substantially intoxicated which affected her judgment. Leonora Lalara had no prior convictions, she pleaded guilty to the offences, she expressed her remorse, she voluntarily attended the police station and made full admissions in relation to the charges. She had no income and also lived on an unemployment benefit at the rate of $360 per fortnight.
Mr Lowndes SM, was informed of the sentences imposed by Mr Gillies SM in relation to the other co-offenders. No submission was made to Mr Lowndes SM that there were exceptional circumstances in Leonora Lalara’s case, but his Worship raised the matter with counsel. Clearly his Worship considered that the sentence imposed by Mr Gillies SM on the appellant was high, although he was not prepared to go so far as to say that it was manifestly excessive. He took the course of inviting counsel to submit to him that there were exceptional circumstances so that he could avoid having to impose a parity community service order on Leonora Lalara in accordance with the parity principle as expressed by the High Court in Lowe v The Queen (1984) 154 CLR 606.
In the result Mr Lowndes SM found that there were exceptional circumstances in Leonora Lalara’s case and that accordingly he was not bound by the parity principle to impose a community work order.
So far as the finding that there were exceptional circumstances is concerned, his Worship said that he thought that it was “clearly unusual for a person to come before the court in relation to serious matters like this at the age of 35 without any prior criminal record.” Elsewhere he referred to the fact that not only had Leonora Lalara no prior criminal record, but during her 35 years (sic) she had been a mother raising children which was not an easy job and a particularly difficult one in an Aboriginal community like Alyangula, and also, that she had had a lot to put up with in terms of domestic violence. He went on to say:
“It’s probably fair to say that you’ve had a fairly hard life and this particular instance of offending is aberrational. That means very much out of the blue and unusual. So much so that it is pretty hard to explain it.”
In the end his Worship convicted Leonora Lalara and released her on her own recognizance in the sum of $750 to be of good behaviour for a period of 12 months during which time she was to be subject to supervision by the Department of Correctional Services.
The grounds of appeal as set out in the Amended Notice of Appeal are that the sentence imposed by Mr Gillies SM was manifestly excessive in all the circumstances and that the disparity between the sentence imposed on the appellant and the sentence imposed on the co-offender Leonora Lalara gave rise to a justifiable sense of grievance on the part of the appellant.
I do not see how it could be contended that the sentence imposed upon the appellant was manifestly excessive.
However, the argument based upon the parity principle has more substance to it. So far as criminality is concerned, the appellant was only a “cockatoo” compared to Leonora Lalara who actually entered the premises and assisted in stealing the cans from the room. So far as their personal circumstances are concerned, Mr Lowndes SM was in error when he referred to the age of Leonora Lalara. In fact Leonora Lalara was 29 at the time of the offending and not 35. The appellant was 38 at the time of the offending. Neither woman had any prior convictions. The only other differences between the two women were that Leonora Lalara had been a mother whereas the appellant had never had any children and Leonora Lalara had suffered for a period of 12 months at the hands of her ex husband.
It was submitted on behalf of the Crown that the sentence imposed by Mr Lowndes SM was manifestly inadequate. I note that there is no appeal by the Crown against Mr Lowndes’ decision.
Ideally whenever there are co-offenders each offender should be sentenced by the same Judge or Magistrate, but this is not always possible. Where a co-offender is to be sentenced by a different Judge or Magistrate, that Judge or Magistrate should be made aware of the sentences imposed on the other co-offenders. The sentence to be imposed should then be arrived at by reference to the principles laid down by the High Court in Lowe v The Queen and as restated in a number of other cases but particularly in the judgment of King CJ in The Queen v MacGowan (1986) 42 SASR 580 at 582-583. Of particular importance is the following (at 583):
“Sentences imposed by different judges on co-offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. He should endeavour to assess a sentence which fairly reflects any relevant distinctions. If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what he regards as the appropriate sentence, leaving any correction of the disparity to the Court of Criminal Appeal. The sentencing judge should give reasons explaining any disparity between the sentence which he imposes and the earlier sentences imposed on co-offenders.”
Clearly the sentence imposed by Mr Gillies SM was not outside of the range of sentences properly applicable to the case of the appellant. Mr Lowndes SM did not consider that to be so either, but he felt that he was able to impose a lesser sentence than Mr Gillies SM because he had reached the conclusion that a sentence below the minimum could be imposed because Leonora Lalara’s case presented exceptional circumstances.
In R v Kelly [1999] 2 All ER 13 at 20 Lord Bingham of Cornhill CJ said that exceptional circumstances means:
“out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered.”
In AWA v Independent News Auckland Limited [1996] 2 NZLR 184 at 186 Hammond J said:
“As a matter of general approach, it is usually construed as meaning something like “quite out of the ordinary”.”
I do not think that I am in a position to say that Mr Lowndes SM was wrong in reaching the conclusion that there were exceptional circumstances in the case of Leonora Lalara. That being so, it is not difficult for me to arrive at the conclusion that there were also exceptional circumstances in the appellant’s case. She was a 38 year old Aboriginal woman with no prior convictions and whose role in the offending was minimal. She had been easily apprehended. She pleaded guilty. All that was lost was one can of beer. I agree with Mr Lowndes SM that it is most unusual for a woman of that age with no prior convictions to become involved in offending of this kind for the first time; and particularly is this so in Aboriginal communities.
I think therefore that the parity principle now requires that a similar sentence be imposed upon the appellant as that of her co-offender Leonora Lalara. Counsel for the respondent submitted that the sentence imposed on Leonora Lalara was manifestly inadequate. If I were to accept that submission I would not allow the appeal. It is plain that the parity principle does not require the court to interfere in circumstances such as these where the second sentence imposed was “manifestly” inadequate. I emphasise here the word manifestly, because as was recognised by Mason J in Lowe v The Queen, supra, at 613-614:
“… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing the sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”
However, “inadequate” does not mean “manifestly inadequate”. Consistently with principle, a sentencing Judge has a wide discretion and provided that he makes no errors of fact or law, his sentence will not be interfered with unless it is either manifestly excessive or manifestly inadequate. So a sentence might be regarded as inadequate without it necessarily being manifestly inadequate.
I do not think it can be said that in the circumstances the sentence imposed on Leonora Lalara was manifestly inadequate.
Accordingly the appeal is allowed, and the sentence imposed by Mr Gillies SM is set aside. In lieu thereof the appellant is convicted on each count and placed upon a good behaviour bond in the sum of $750 to be of good behaviour for a period of 12 months from today. The appellant will also be placed under the supervision of the Director of Correctional Services and required to obey all reasonable directions as to employment, residence, associates, reporting and counselling. I note that there are two victim levies each of $40 in respect of each charge. The order placing the appellant under supervision is subject to my receiving a report from the Director of Correctional Services to the effect that the appellant is suitable for supervision. ---------------------