James Emitja v The Queen

• Jurisdiction: Northern Territory
• Court: Court of Criminal Appeal
• Judge: Grant CJ,Kelly J:,Barr J:
• Judgment Date: 21 October 2016
• Docket Number: FILE NO: No. CA 15 of 2015 (21419050)
• Date: 21 October 2016

Between:

James Emitja

Appellant

and

The Queen

Respondent

[2016] NTCCA 4

Judgment of:

Grant CJ, Kelly and Barr JJ

FILE NO: No. CA 15 of 2015 (21419050)

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

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

CRIMINAL LAW — OFFENCES AGAINST THE PERSON — JUDGMENT AND PUNISHMENT

Whether sentence was manifestly excessive having regard to the circumstances of the offending and the appellant — the exercise of the sentencing discretion having regard to the protection of society clearly permissible provided that the purpose not simply preventative detention and provided that sentence does not go beyond what is proportionate to the crime — appellate court interferes only if error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence — incumbent on the appellant to show that the sentence was not just excessive but manifestly so — function of appellate court to minimise disparities of sentencing standards while maintaining the reasonable and just area of discretion of sentencing judge — sentencing standard not a fixed range departure from which will necessarily found demonstrable error — the absence of a factor which would elevate the seriousness of the offending not a matter of mitigation — not established that the sentencing judge acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence — not established that the sentence was clearly and obviously excessive — appeal dismissed

CRIMINAL LAW — OFFENCES AGAINST THE PERSON — JUDGMENT AND PUNISHMENT

Whether sentencing judge erred in failing to set a non-parole period — court may only determine not to fix a non-parole period if it would be inappropriate to fix a non-parole period having regard to the nature of the offence, the past history of the offender or the circumstances of the particular case — appellant's moral culpability for offending was very high — considerations of deterrence and community protection attracted a particular weighting at that stage of the process — prospects of rehabilitation bleak given extensive criminal history — neither necessary nor desirable for the appellant to be released after some minimum period of imprisonment had been served — not shown that discretion miscarried in determining that the fixing of a non-parole period was inappropriate — appeal dismissed

Albert v The Queen [2009] NTCCA 1 , Veen v The Queen (No 2) (1988) 164 CLR 465, applied

AB v The Queen (1999) 198 CLR 111 , Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998), Bugmy v The Queen (1990) 169 CLR 525, Bulmer & Ors (1987) 25 A Crim R 155, C v Gokel [1999] NTSC 93, Channon v The Queen (1978) 20 ALR 1, Cheung v The Queen (2001) 209 CLR 1, Cole v The Queen [2010] NTCCA 2, Daniel (1997) 94 A Crim R 96, Daniels v The Queen (2007) 20 NTLR 147, Director of Public Prosecutions (Vic) v Gull [2003] VSCA 123, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Fernando (1992) 76 A Crim R 58, JAW v The Queen [1996] 5 NTLR 211, JKL v The Queen [2011] NTCCA 7, Liddy v R [2005] NTCCA 4, Lodhi v The Queen (2007) 179 A Crim R 470, Mawson v Nayda (unreported, Supreme Court of the Northern Territory, 31 October 1995), Meissner v The Queen (1995) 184 CLR 132, Morrow v The Queen [2013] NTCCA 7, Najpurki v Luker (1993) 117 FLR 148, Power v R (1974) 131 CLR 623, R v Allinson (1987) 49 NTR 38, R v Anzac (1987) 50 NTR 6, R v Bannerman (unreported, NSWCCA, 10 March 1995), R v Crabbe (1985) 156 CLR 464, R v Duncan (1983) 9 A Crim R 354, R v Isaacs (1997) 41 NSWLR 374, R v Jabaltjari (1989) 46 NTR 47, R v Kane [2003] SASC 237, R v McNaughton (2006) 163 A Crim R 381, R v Visconti (1982) 2 NSWLR 104, R v Wilson [2011] NTCCA 9, R v Wurramara (1999) 105 A Crim R 512, Ryan v The Queen (2001) 206 CLR 267, Sullivan v R (1987) 47 NTR 31, Taylor v Malagorski [2011] NTSC 98, The Queen v Haji-Noor [2007] NTCCA 7, The Queen v JO [2009] NTCCA 4, The Queen v Shrestha (1990–1991) 173 CLR 48, Thomas v Mowbray (2007) 233 CLR 307, Veen v The Queen (1979) 143 CLR 458, Walden v Hensler (1987) 61 ALJR 646, Weininger v The Queen (2003) 212 CLR 629, Wheeler v Eaton [2012] NTSC 80, Woodley & Ors (1994) 76 A Crim R 302, Yardley v Betts (1979) 22 SASR 108, Yougie (1987) 33 A Crim R 301, referred to

Criminal Code ss 177, 181, 429

Sentencing Act (NT) ss 5, 53

A von Hirsch, Doing Justice, The Choice of Punishments (Hill and Wang, 1986)

REPRESENTATION:

Counsel:

Appellant: I Read SC

Respondent S Robson

REASONS FOR JUDGMENT

(Delivered 21 October 2016)

Grant CJ and Kelly J:

1 The appellant seeks an extension of time within which to file an application for leave to appeal from a sentence of imprisonment for six years without a non-parole period imposed by the Supreme Court on 27 November 2014. The grounds for appeal are that the sentence was manifestly excessive having regard to the circumstances of the offending and the appellant, and that the sentencing judge erred in failing to set a non-parole period.

The circumstances of the offending

2 The offence in question was committed at Hermannsburg on 4 March 2014. The appellant and the victim had been married in a traditional Aboriginal manner for 13 years before separating in 2013. They had one child who was aged 12 years at the time of the offending. The relationship had been blighted by domestic violence, one consequence of which was the issue of a domestic violence order on 28 August 2013 naming the victim as a protected person and restraining the appellant from, amongst other conduct, contacting or approaching the victim; approaching or entering any place where the victim might be living, working, staying or visiting; and causing any harm or attempting or threatening to cause harm to the victim. 1 The order had a term of 12 months.

3 At 2 a.m. on the morning of 4 March 2014 the victim woke in her home to find the appellant had entered the house without invitation and in breach of the domestic violence order, and fallen asleep next to her. The victim woke the appellant and asked him to leave. The appellant became angry and said words to the effect, ‘You're just jealous of me because of Selina’. Selina had been the appellant's wife before the commencement of his marital relationship with the victim.

4 The victim ran to the toilet and attempted to lock the door. The appellant followed her and prevented her from doing so. The victim asked the

appellant to move out of the way and went to walk past him, whereupon the appellant kicked her at the bottom of her left leg. The appellant was wearing cowboy boots at the time. As a result of the blow the victim suffered closed compound fractures to the left lower leg. She was airlifted to the Alice Springs Hospital for treatment. Upon admission the leg was observed to be markedly deformed at the site of the fractures. The force of the kick caused displaced fractures of both the tibia and the fibula, and there is no suggestion that the victim suffered from any condition which rendered her inherently or particularly susceptible to fractures of that nature.

5 The appellant was unable to proffer any explanation for the assault, and was not apparently under the influence of alcohol at the time it was committed.

6 The appellant was charged with unlawfully causing serious harm to the victim contrary to s 181 of the Criminal Code. The maximum penalty for that offence is imprisonment for 14 years. That offence stands in contradistinction to s 177 of the Criminal Code, which creates the offence of causing serious harm to a person with the intention of doing so, the maximum penalty for which is imprisonment for life. 2

The appellant's circumstances

7 It is instructive to examine the appellant's history leading up to this assault. The offence was committed very shortly before he turned 40 years of age.

He had lived his whole life in Hermannsburg, and was initiated through ceremony at the age of 18. He was schooled to primary level. During his adult life he had worked variously as a ranger, a store assistant, a participant in the CDEP program, and most recently a teacher's aide at the Hermannsburg School. In fact, he was employed as a teacher's aide at the time of the offending in question. In that respect, he has had the benefit during his adult life of more regular employment than many in this and other Aboriginal communities. He claims to be a religious man who regularly attended services at the Catholic Church in Hermannsburg. In that respect, he presumably had access to the spiritual and pastoral care services available to members of that congregation.

8 The appellant is several years older than the victim. He has known the victim her whole life, and formed the marital relationship with her in 2000.The appellant has a long history of violent offending, including over the period from the commencement of his relationship with the victim up to the offence the subject of this appeal. The sentencing court had before it the details of some of those assaults, and for others only the bare record of the charge, conviction and penalty imposed.

9 On 1 May 2001, the appellant committed two aggravated assaults. One of those assaults had the aggravating circumstances that its victim was a female and it involved the use of a weapon. The other assault had the aggravating circumstances that its victim suffered bodily harm and that it also involved the use of a weapon. On 19 December 2001 the appellant was sentenced to an aggregate term of imprisonment for six months in respect of those assaults.

10 On Christmas Day in 2002, the appellant unlawfully caused grievous harm to another person. On 13 October 2003 he was convicted in the Supreme Court of...