Anthony Namala(Appellant) v Robert Whittington

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Barr J
• Judgment Date: 19 December 2016
• Neutral Citation: [2016] NTSC 71
• Docket Number: FILE NO: JA 19 of 2016 (21555404)
• Date: 19 December 2016

[2016] NTSC 71

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Barr J

FILE NO: JA 19 of 2016 (21555404)

Between:

Anthony Namala

Appellant

and

Robert Whittington

Respondent

Hili v The Queen (2010) 242 CLR 520 ; Liddy v The Queen [2005] NTCCA 4; Truong v The Queen (2015) 35 NTLR 186, applied

Bukulaptji v The Queen (2009) 24 NTLR 210 ; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, referred to

Ryan v Malogorski [2012] NTSC 55 ; Jinjair v Verity [2014] NTSC 35, considered

Criminal Code (NT) s 210

Sentencing Act (NT) s 43(3)

CRIMINAL LAW — Appeal against sentence — stealing alcohol — maximum penalty seven years — offender in company — sentenced to one month imprisonment suspended after three days — manifest excess ground — proportionality — sentencing principles — general and specific deterrence — punishment — offence prevalent — plea of guilty entered after arrest for breach of bail — offender in company — prior conviction for stealing — manifest excess not established — appeal dismissed.

CRIMINAL LAW — Appeal against sentence — sentencing principles — imprisonment as a last resort — no error established — appeal dismissed.

REASONS FOR JUDGMENT

(Delivered 19 December 2016)

1 The appellant appeals the severity of a sentence imposed by the Court of Summary Jurisdiction on 2 March 2016.

2 The appellant was charged on information that, on 9 November 2015, he stole a one litre bottle of Jim Beam, valued at $59, the property of Airport Hotel, Jingili. The appellant was later charged on complaint with a breach of bail on account of his failure to attend court on 11 November 2015 to answer the stealing charge. He was arrested by police for the breach of bail on 1 March 2016, and remained in custody when he entered pleas of guilty to both charges on 2 March 2016.

3 A document containing the agreed facts for each of the offences was tendered, and the facts read out in court.

4 The admitted facts in relation to the stealing charge were as follows. At about 3.00 pm on Monday, 9 November 2015, the appellant attended the BWS store at the Airport Hotel, McMillan's Road, Jingili, in company with a male co-offender.

5 The appellant and the co-offender entered the store and moved about the aisles. The appellant removed a one litre bottle of Jim Beam valued at $59 from a shelf and attempted to hide the bottle under his shirt. He and his co-offender then left the store without paying. The appellant admitted that he did not have permission to remove any property from the BWS store and keep it as his own.

6 The appellant's actions had been observed by a customer, who alerted the store manager, who then followed the appellant from the store, across McMillans Road, to an area of grassy bushland where he observed the appellant discard the Jim Beam and sit down with other persons. The store manager then retrieved the bottle of Jim Beam, returned to the store and notified police.

7 The actions of the appellant and co-offender had been captured by an in-store CCTV camera.

8 Police officers subsequently attended the bushland area and arrested the appellant and his co-offender. They were taken to the Darwin Watchhouse and placed in protective custody due to their level of intoxication. The appellant was later charged and bail considered.

9 The appellant had a limited criminal record. The only relevant matters were convictions imposed by the Court of Summary Jurisdiction in May 2012 for aggravated unlawful entry of a building and stealing. The offences were committed in November 2011. The appellant was sentenced to carry out 50 hours of community work.

10 Counsel for the appellant made submissions in mitigation of penalty. He drew the magistrate's attention to the appellant's limited record of prior offending, and the gap between the offences committed in November 2011 and the offending in November 2015. He referred to the relatively low value of the stolen alcohol. He submitted that the bottle was recovered intact and in a resalable condition.

11 Counsel went on to submit that the appropriate sentence was a fine, or possibly community work. In relation to the latter, however, the appellant had broken his arm a few days prior to his court appearance, and his capacity to perform community work was in doubt. Defence counsel told the magistrate that community work was not available to the appellant. 1 In relation to a fine, the appellant had already served three days on remand,

and therefore, counsel submitted, the magistrate should sentence the appellant to three days, noting that it had been served in full, rather than impose a fine. 2 Counsel made it clear at a later point that, if the appellant had not spent time in custody, he would have been asking for a fine; but that he was asking for the expedient “time served” sentence to ensure that time served was ‘not wasted’. 3

12 The magistrate informed defence counsel that he considered that a sentence of imprisonment was appropriate, but that the sentence should be longer than three days. 4 His Honour rejected defence counsel's pragmatic submission because he considered that a sentence of three days was inadequate.

13 The magistrate made the following sentencing remarks: 5

HIS HONOUR: Today the defendant Anthony Namala has pleaded guilty to a single count of stealing. He has done so at an early opportunity but not at the earliest opportunity, in that he was arrested on 9 November 2015 and bailed on that date to appear in court on 11 November 2015 and he did not appear, which resulted that a warrant had to be issued for his arrest.

… Accordingly while I give him credit for an early plea, I do not give him credit for anything like the earliest plea or the full discount that would be warranted for the earliest plea in such circumstances.

The maximum penalty for stealing is 7 years in gaol. The offending in this case was the defendant and a co-accused entered the hotel bottle shop with the intention of stealing. The defendant hid a bottle

of Jim Beam alcohol valued at $59 under his shirt and then left the hotel without attempting to pay. It was at all times his intention to do that.

This type of offending is depressingly prevalent.

This defendant was born on 15 February 1984, so at the time of this offending he was 31 and three-quarter years of age. He is now 32 years of age. He has a prior conviction for stealing. That offending occurred on 5 November 2011, four years before the offending which I'm dealing with today. At that time he was 27 and three-quarter years of age.

Neither at the time of the offending in November 2011 nor at the time of the offending in November 2015 was this defendant a young person for sentencing purposes. He was an adult. And the very important allowances which are made for young offenders, whether they be youth or whether they be young for sentencing purposes, a rough rule of thumb would be under the age of 25 and over the age of 18. But these things aren't fixed in concrete.

But the discount or the concession doesn't apply in this case. A gap of four years to an adult between 27 and 31, in my view is not a very great gap. The defendant clearly offended when he was in Darwin and on a drinking session. He normally lives in Palumpa where, if you look at his antecedents, he has not gotten into serious trouble apart from some driving matters.

The sentencing dispositions available to me in these circumstances include a fine. I'm told that at the present time he is not employed. No doubt he has some income from Social Security. I haven't been provided with details of that. I am informed that he cannot undertake community work because of an injury he has suffered recently, a broken arm which is why he's in Darwin at the moment.

In my view a fine does not recognise, given the circumstances of this offending and of this offender, the seriousness of the offending. To sentence the defendant to time served, a maximum of three days taking into account the original arrest in November and this his arrest yesterday and his court appearance today is very insufficient. It serves to trivialise the seriousness or the gravity of this type of offending. It's extremely prevalent offending.

And in my view a sentence of actual imprisonment is called for and it is one that is to be greater than the three days.

14 The magistrate convicted the appellant of both offences. For the stealing offence he sentenced the appellant to imprisonment for one month, backdated by three days and deemed to have commenced on 29 February 2016. The magistrate suspended the sentence immediately and fixed a 12 month operational period. 6 For the breach of bail his Honour sentenced the appellant to seven days imprisonment, to be served fully concurrently with the sentence for stealing. The total effective sentence was thus imprisonment for one month, suspended immediately and subject to a 12 month operational period.

15 The seven-day sentence for breach of bail is not challenged on appeal. However, it is contended that the sentence for the stealing offence was manifestly excessive and that the learned magistrate failed to apply the principle of imprisonment as a last resort.

16 An issue identified by the appellant on appeal 7 was whether the magistrate was justified in inferring that the appellant entered the BWS premises with the intention to steal alcohol. The appellant's intention at the time of entering the store was not specified in the admitted facts. No submissions were made in relation to the appellant's intention at the time of entering the store. The magistrate had not signalled that he might draw the inference.

Counsel for the appellant contends that the...