Tittums v Kennedy [2006] NTSC 82

PARTIES: TITTUMS, TREMAINE THOMAS

v

KENNEDY, GAVIN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 38 of 2006 (20518706)

DELIVERED: 31 October 2006

HEARING DATES: 28 September 2006

JUDGMENT OF: MILDREN J

APPEAL FROM: Court of Summary Jurisdiction (20518706) 27 June 2006

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: Self-represented
Respondent: A Elliott

Solicitors:
Appellant: Self-represented
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Number of pages: 8

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

Tittums v Kennedy [2006] NTSC 82
No. JA 38/2006 (20518706)

BETWEEN:

TREMAINE THOMAS TITTUMS
Appellant

AND:

GAVIN KENNEDY
Respondent

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 31 October 2006)

Mildren J:
[1] This is an appeal against sentence imposed by the Court of Summary Jurisdiction.

[2] The appellant pleaded guilty to three counts as follows:

1. That on 7 August 2005 at Darwin he did at night time unlawfully enter an occupied dwelling house with intent to commit an offence therein namely assault.

2. That he unlawfully assaulted Benjamin Espie and the unlawful assault involved the following circumstance of aggravation namely that Benjamin Espie suffered bodily harm.

3. That he unlawfully damaged property namely a screen door and a wooden door to the value of $500.00 being the property of Sabrina Sejdin (in the Crown facts Ms Sejdin’s name is spelt Sejdiu).

[3] The facts as found by the learned Magistrate were that for some time the appellant was in a relationship with Sabrina Sejdiu. The relationship broke up some time in 2004, following which Ms Sejdiu obtained a domestic violence order involving no contact. There was a possibility of some indirect contact because there was a child of the relationship. For a while there were various breaches of the domestic violence order which were not very serious although on at least one occasion the appellant received the minimum penalty of seven days imprisonment.

[4] Early in 2005 Ms Sejdiu began going out with Mr Espie who, by the time of the night in question, was her regular boyfriend. Some time earlier in 2005 the appellant made contact with Ms Sejdiu relating to issues that arose out of the fact that both the appellant and Ms Sejdiu wished the appellant to exercise his parental responsibilities and rights with respect to the child. Although it is apparent that Ms Sejdiu had no further romantic interest in the appellant, it seems that the appellant hoped that their relationship might resume. By then the domestic violence order had expired.

[5] On the morning of 6 August, the appellant was visited by Ms Sejdiu. As a result an agreement was reached that they would see one another later on that evening. It was the appellant’s belief that Mr Espie was not aware of the contact which the appellant was having with Ms Sejdiu. Subsequently, late on Saturday 6 August, Ms Sejdiu and Mr Espie went to the Discovery night club. Whilst there the appellant approached Ms Sejdiu but, possibly because of the presence of Mr Espie, Ms Sejdiu avoided the appellant and left the night club immediately with Mr Espie. The rejection of the appellant made him angry because, as the learned Magistrate found, of the “apparent dashing of the hopes [he had] unreasonably built up and also, no doubt, stoked by the alcohol and pill [ecstasy] you’d taken”.

[6] Subsequently the appellant telephoned another former partner, Ms Leslie, to pick him up and drive him to Ms Sejdiu’s apartment. The appellant was apparently calm at that time. The appellant knocked on the door, which was answered by Mr Espie. At this time it was 4:40 am. The security screen door was closed and locked. It is not clear exactly what passed between the appellant and Mr Espie but the appellant was asked to leave and the door was closed. The appellant then began banging on the screen door and yelling out. Despite threats to telephone the police made by Mr Espie if he did not resist, the appellant forced the lock to the security door and started banging on the wooden door. He kicked the wooden door open and went inside the unit. Both doors were damaged in this process.

[7] The appellant approached Mr Espie who was in the kitchen. Mr Sejdiu was nearby. The appellant punched Mr Espie to the right brow and also to the face loosening his front incisor. The two began wrestling with each other whilst Ms Sejdiu telephoned the police. The wrestling continued into the kitchen area and, at one point, both men were throwing punches at each other. There was a point when the appellant was on top of Mr Espie and Ms Sejdiu, fearing for the safety of Mr Espie and herself, took a long knife from the kitchen and stabbed the appellant in the lower hip area. As this did not immediately deter the appellant, she stabbed him with the knife again, this time to the other lower hip region. In the course of doing so she accidentally cut her own fingers. The appellant began to bleed heavily and left the unit. The appellant went downstairs and wiped blood all over Ms Sejdiu’s car. Ms Sejdiu and Mr Espie came downstairs in order to go to the hospital. There were some other matters which occurred after that which are not the subject of these charges, so I will not refer to them.

[8] As a result of the assault, Mr Espie sustained bodily harm. One of his front incisors was fractured below the gum line. It was replaced with a porcelain crown at a cost of $4,039. He also sustained bruising and scratch marks to the left inner forearm and elbow; swelling and tenderness to the back of the right hand and right wrist; tenderness over the right temporal region; and bruising to the right mid back.

[9] The cost of repairs to the damaged doors is approximately $400.

[10] The learned Magistrate also took into account the injuries to the appellant which he noted seemed to have been attended to medically with no long term results.

[11] The appellant has an extensive prior history, including two previous convictions for a similar type of offending.

[12] After taking into account other matters put on the appellant’s behalf, the learned Magistrate imposed a sentence of 18 months imprisonment on the first count; eight months imprisonment on the second count; and six months imprisonment on the third count, all concurrent and suspended those sentences after the appellant served six months subject to conditions relating to supervision.

Grounds of appeal

[13] The grounds of appeal are as follows:

“1. That the sentence is manifestly excessive (in terms of six months to serve); and

2. That the Magistrate did not give enough weight to my efforts at rehabilitating myself, e.g. going to Banyan House and finishing the program.”

[14] It is well established that the sentencing discretion of a Magistrate is not to be disturbed on appeal unless error is disclosed. There is a presumption that there is no error and it behoves the appellant to persuade the Court on appeal that the Magistrate erred in some way.

[15] So far as the claim that the sentences are manifestly excessive is concerned, in my opinion that sentences imposed were well within the learned Magistrate’s sentencing discretion. As the learned Magistrate pointed out, this was a serious offence so far as the unlawful entry was concerned. Although the maximum penalty for that offence was only four years, I think his Honour was correct to categorise it as towards to the top of the scale for an offence within that category. His Honour observed that it is hard to believe that you would see many much worse offences than someone who, at around four or five in the morning, is bashing his way into someone else’s residence against their clearly expressed will with the intention of bashing up someone who is inside the place. As his Honour said it is a bad example of an unlawful entry offence.

[16] I think it is clear that his Honour gave ample consideration to the matters put on the appellant’s behalf in mitigation. It is clear from his Honour’s sentencing remarks that he gave some weight to the fact that the appellant had completed phase one of an intensive drug and alcohol rehabilitation program.

[17] In this particular case, home detention was not an option available to the Magistrate as the appellant had been convicted of a violent offence and pursuant to s 78BA of the Sentencing Act, home detention was not an available option. In these circumstances a partially suspended sentence was about the best the appellant could have hoped for. Indeed, that was the submission of his counsel before the learned Magistrate.

[18] The argument put by the appellant before me, was that the appellant worked exceptionally hard to comply with the Banyan House drug rehabilitation program. That it supported by the report from Banyan House which was before the learned Magistrate. The appellant is concerned that if he is required to serve six months in prison at this stage it will take him back to being in the company of people he does not want to be with and will reduce his opportunities when he is later released from prison to remain drug free and control his anger. In effect his submission was that the learned Magistrate should have realised that doing the course was a significant turning point in the appellant’s life and that the protection of the public was likely to be best secured in the long term by a sentence that was almost fully suspended.

[19] The difficulty for the appellant is that no such submission was made on his behalf at the time of sentence. The appellant was legally represented before the learned Magistrate by competent counsel who is experienced in criminal matters. The learned Magistrate was entitled to assume that it was accepted by the appellant that a suspended sentence of that kind was not a realistic option.

[20] So far as the length of the sentence to be served before the appellant’s release is concerned, it is difficult to see how it can be said that six months is excessive in all of the circumstances of the case, especially bearing in mind that there is no attack on the length of the head sentence.

[21] I do not think that the appellant has shown that the learned Magistrate has fallen into error. The appeal is therefore dismissed.
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