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THE SUPREME COURT OF
THE NORTHERN TERRITORY
SCC 21455695, 21456069 and 21456071
THE QUEEN
and
JEREMIAH CHARLIE
KEVIN TOMLINS and
THOMAS TYSON
(Sentence)
RILEY CJ
TRANSCRIPT OF PROCEEDINGS
AT ALICE SPRINGS ON THURSDAY 21 MAY 2015
Transcribed by:
Merrill Corporation
HIS HONOUR: The three offenders have pleaded guilty to the offence of having
robbed a taxi driver of $140, and an EFTPOS machine, whilst in company. The
maximum penalty of this offence is imprisonment for life.
In addition, Mr Charlie has pleaded guilty to two offences of having unlawfully
assaulted two separate Police officers in the execution of their duty. The maximum
penalty for each of those offences is imprisonment for 5 years.
At the time of the offending Mr Tomlins was aged 27; Mr Charlie 22 and
Mr Tyson 25. They are no longer youthful offenders.
The offending occurred on 2 December 2014 in Alice Springs. The three
offenders had been drinking alcohol and from the submissions made today it seems
also, consuming drugs. At about 9:15 pm they waved down a taxi being driven by
their victim. Mr Tomlins sat in the front passenger seat, Mr Charlie behind the driver
and Mr Tyson behind Mr Tomlins.
I have seen the CCTV footage of what then occurred. Shortly after entering the
taxi, Mr Tyson took off his shirt and wrapped it around his head and face to conceal
his identity. Mr Tomlins took a torch and was shining it around the front section of
the taxi, including into the camera lens located within the taxi.
Mr Charlie started verbally abusing the taxi driver saying, 'Why did you leave
your country? I'm going to fucking kill you. Go back to where you came from.
You're in my country.' The driver quite reasonably responded that if he was not
going to be shown any respect, he would not take the three in his taxi and he did not
need their money.
He stopped the taxi on Undoolya Road and attempted to wave down a marked
Police vehicle. Unfortunately, the occupants of the Police vehicle did not see him.
He then attempted to drive towards Club Eastside, as he thought people would be
about who could assist him.
Without warning, Mr Charlie moved forward from the rear seat and reached
around the driver's seat and grabbed the driver in a bear hug type grip around the
upper chest area. He then punched him twice to his head. The driver stopped the
taxi in the vicinity of the Mukuk Art Gallery on Undoolya Road.
The assault upon the driver continued. During the assault, Mr Tomlins and
Mr Tyson removed the driver's wallet from his pants pocket. The wallet contained
$140 in cash and personal cards. Mr Tomlins took the mobile phone valued at $180.
During the assault, Mr Charlie placed his left hand over the driver's mouth to stop
him calling out. The driver bit the hand. The driver was able to get out of the taxi
and the offenders then fled. They took with them the handheld EFTPOS machine,
value at $3,200. That machine has not been recovered.
Police attended the area. Two officers, a Sergeant and a senior constable
patrolled the area looking for the offenders. They located Mr Charlie. He was
initially hiding behind a tree and then ran into the front yard of a house and climbed
over the neighbouring fence into another yard.
Police directed him to get onto the ground and he did so. The Sergeant of Police
approached him while he was laying face down on the ground with his arms spread.
As the Sergeant placed handcuffs on Mr Charlie, Mr Charlie turned his head and
spat on the Police officer. Spittle struck him on the right arm, close to his inner
elbow. Mr Charlie was brought to his feet and taken to the Police van by the
Sergeant and his partner. Mr Charlie then turned his head towards the senior
constable and again spat; this time striking the senior constable on his face, neck,
arms and shirt. Mr Charlie was abusive throughout. He said to the senior constable,
'I know where you live, pig cunt.'
Mr Tomlins was arrested on 4 December 2014. Mr Tyson was arrested later that
day. They both entered into records of interview. Mr Tomlins said he did not take
anything from the taxi. Mr Tyson said that he knew Mr Tomlins, but did not know
Mr Charlie, having met him some hours before the incident. In relation to stealing
things he said, he saw Mr Tomlins doing so and he did the same.
I have a victim impact statement from the taxi driver who says that he did not
suffer any physical injuries that required medical treatment, but rather, did suffer
some minor cuts and a swollen face, due to being punched. He said the offending
cause him a lot of worry about his job in Alice Springs.
He was concerned that the offenders kept saying, 'You have come to my
country,' suggesting to him that the offending had a racial element to it. He lost
income as a consequence of this offending.
It must have been a terrifying experience for him. He was attacked by three men
at night, in circumstances where he was unable to effectively defend himself. The
attack was cowardly and was accompanied by racial abuse.
I also have a victim impact statement from the senior constable who was spat
upon. He said, not surprisingly, he was disgusted and felt violated by what occurred.
His views reflect the community feeling that such acts are disgusting. Not only was
he spat upon, but Mr Charlie used the abusive language to which I have referred. I
also have a victim impact statement from the Sergeant which is to similar effect. The
three offenders have each pleaded guilty, and thereby, accepted responsibility for
their conduct and they will be given credit for the plea.
Mr Tomlins has a criminal history stretching back to 2003 in the Darwin Juvenile
Court. His subsequent offending includes stealing; assault; carrying a controlled
weapon; failing to comply with restraining orders; breaching community service
orders; unlawfully causing grievous harm; assault occasioning bodily harm; escape
lawful custody; resisting Police; hindering Police; assaulting Police; disorderly
behaviour in a Police station; breaching the terms of suspended sentences;
breaching bail and other offences.
I counted four convictions for assault; nine convictions for offences against
members of the Police force, or escaping lawful custody and 11 charges for failing to
comply with Court orders; breaching bail; breaching terms of a suspended sentence
and so on.
In relation to the assault offences, I note that he has in the past been sentenced
to imprisonment for 18 months for assault occasioning bodily harm; 4 months for
assaulting a Police officer; 2 months for assaulting another Police officer and 3 years
for causing grievous harm.
He has been sentenced to prison for other offending as well. It seems he has
not learned any lesson from any previous penalties imposed upon him.
Mr Tomlins is a father to three children. He is in a relationship and his current
partner is pregnant. He left school during Year 10 and commenced a training
course. He has worked as a labourer, but he has spent a good deal of time in
custody. He moved to Alice Springs to try to start a new life away from offending. At
the time of this offending he had not found any employment.
He knew Mr Tyson as a friend from Darwin and had met Mr Charlie while serving
a term of imprisonment. I am told that he regrets his actions of the night and the way
he treated, or they treated the taxi driver. He has written a letter of apology that has
not been delivered to the taxi driver, but rather, brought to Court.
I take that apology with a degree of cynicism. He seems to be more concerned
about himself than his victim. In a further letter provided to the Court he seeks to
deflect blame to his co-offenders by saying he did not intend to commit a crime and
was caught in the middle of it.
It seems to me his acceptance of the responsibility, is at best, qualified. He
could have put an end to what was taking place or at least, tried to do so. He went
along with it and participated fully in at as is revealed by the CCTV footage.
Given his criminal history and his failure to accept full responsibility for what he
did, I regard his prospects of rehabilitation as being poor. Personal deterrence is a
significant factor in determining an appropriate sentence.
Mr Tyson also has a criminal history, but consisting only of three offences. He
has two breaches of bail and one conviction for engaging in conducting which
contravenes a domestic violence order. Mr Tyson is 24 years of age. His mother
was in Court to support him and he has strong family support.
He was born in New South Wales, but raised in Darwin. He spent some time in
Adelaide. He is the father of two children aged six and three. He is separated from
his partner and the children are now in her care. The separation was quite traumatic
and led to a conviction for a breach of a domestic violence order. He has not seen
his children since he has been in custody.
He attended school until Year 9. After leaving school he has had a history of
employment, including car detailing; working in the building supply industry; working
as a groundkeeper and as a part time security officer. Upon release, his intention is
to enter into a rehabilitation program and then move to live on a station near
Kalkaringi. I have a letter from DASA indicating that he is suitable for the residential
program offered at Aranda House. I also have a letter from a traditional owner of the
lands near Kalkaringi discussing the prospects for Mr Tyson in that area and offering
strong support.
He also has family support for this plan. He offered to plead guilty at an early
time. He also wrote a letter of apology at an early time. I do not put much weight on
the letter, but the other matters I have mentioned are all positive.
In my opinion, in light of his less serious criminal history; his recognition of his
problem with drugs and alcohol; his willingness to enter in to a residential
rehabilitation program and his acceptance into such a program and his general plan
for the future, his prospects for rehabilitation are much better than those of his cooffenders.
I characterise his prospects as moderate at this stage. Much will depend upon
whether he carries out his plan. Personal deterrence remains a consideration in
determining an appropriate sentence.
I propose to give him an opportunity on this occasion. Significantly, the
prosecutor has stressed the differences between Mr Tyson and his co-offenders,
based upon the matters that I have mentioned. I agree that that distinction can be
made.
Mr Charlie has a lengthy criminal history commencing in the year, 2000. He has
a number of convictions for violence. In 2004, he was convicted of assaulting a
female on two separate occasions. He was sentenced to imprisonment for 6
months. He was also convicted of assaulting a female who suffered harm.
At the same time, he was convicted of assaulting a female and sentenced to
imprisonment for 4 months. In 2005, he was convicted of assaulting a female and
sentenced to imprisonment for 6 months. In 2009, he was convicted of aggravated
assault and sentenced to imprisonment for 6 months.
Significantly, in February 2009, he was convicted of aggravated robbery and
sentenced to imprisonment for 3 years. He was sentenced at that time to a total of
5 years' imprisonment for the robbery along with other offending.
In 2013, he was convicted of aggravated assault and sentenced to imprisonment
for 6 months.
In addition, he has a series of breaching restraining orders and breaching
suspended sentences. He has a conviction from 2002 for resisting Police. He has a
range of other convictions on his record.
Mr Charlie is aged 33 years. He was born in Katherine and grew up in
Borroloola. His mother and father had a relationship fuelled by violence and alcohol
and he was bought up by his uncle. He attended Borroloola Primary School and did
one year of high school at St John's College. He completed his high school at Yirara
College, here in Alice Springs in 1997.
After leaving school, he started to consume alcohol. In 1999, his auntie died as
a consequence of a violent feud and Mr Charlie along with other people was charged
with murder. He was acquitted.
However, the matter had a significant impact upon him. He had to leave the
Borroloola community and is somewhat of an outcast. He is estranged from his
people. It is plain that he has an alcohol problem and that this has led to much of his
offending. He has also become a user of ice, which has become his drug of choice.
He was under the influence of the drug when he offended. He has apologised to the
victim, but as with the other apologies I do not put much weight on them. I am told
he has two children. I regard his prospects for rehabilitation as being poor. He is
older and has a significant and disturbing criminal history. He has problems with
alcohol and with ice.
His prospects will not improve unless he addresses those problems. Personal
deterrence is a significant element in determining an appropriate sentence.
The offending was serious. The Courts have made it clear over many years that
those who commit offences against people who provide services to the community
out of hours, in circumstances where they are required to work alone at night and are
therefore vulnerable will generally speaking be subject to condign punishment.
Taxi drivers; people serving in fast food outlets; people operating service stations
and many others who work alone at night are susceptible to these types of crimes of
violence.
In determining an appropriate sentence, emphasis will be placed on a protective
function of the Court. The Courts have and will continue to impose sentences which
emphasise the need to deter others who may be minded to commit crimes of this
type. The sentence I impose must accord weight to protection; general deterrence;
denunciation and retribution.
In my opinion, in relation to the actual offence of robbery, there is nothing to
distinguish between the offenders. While Mr Charlie may have been the most
physically active of the three, to my mind, they were all part of the enterprise and
should be treated equally.
Of course, Mr Charlie has the additional offences of assaulting the Police
officers.
Each of the offenders will be convicted. In relation to the robbery, I impose the
same sentence on each offender. But for the plea of guilty, I would have sentenced
each to imprisonment for 3 years and 4 months. In light of the plea, I sentence them
individually to imprisonment for 2 years and 6 months.
In relation to Mr Charlie, he will be convicted on each additional count. For the
offence of spitting upon the arm of the Sergeant, I sentence him to imprisonment for
2 months. For the offence of spitting on the face, neck, arms and shirt of a senior
constable, I sentence him to imprisonment for 4 months.
I direct that the sentence for the first spitting incident be served cumulatively
upon that in relation to the second incident, to the extent of 1 month, giving a total of
5 months for the assault on the Police.
That sentence will be served cumulatively upon the sentence in relation to the
robbery, giving a total head sentence of imprisonment for 2 years and 11 months.
In my opinion, in the cases of Mr Tomlins and Mr Charlie, each appropriately
dealt with by the imposition of a non-parole period.
I distinguish between the three offenders on the basis of their personal
circumstances and prospects for rehabilitation. In relation to Mr Charlie, I set a
non-parole period of 24 months. His sentence will be deemed to have commenced
on 2 December 2014.
In relation to Mr Tomlins, I set a non-parole period of 20 months. His sentence
will be deemed to have commenced on 4 December 2014.
In relation to Mr Tyson, I suspend the sentence after he has served a period of
imprisonment of 10 months. He will be under supervision for a period of 2 years
from the date of his release. The sentence will be suspended on conditions that
require him to undertake the residential program at DASA and thereafter, reside in
the Kalkaringi area; either in the township or on Limbunya Station.
The conditions of the suspension include the following:
That he must not during the period of the order commit another offence, whether
in or outside the Territory punishable on conviction by imprisonment.
He is to remain under the ongoing supervision of a Probation and Parole officer
and must obey all reasonable direction from a Probation and Parole officer and must
report to a Probation and Parole officer within two clear working days after the order
comes into force.
He must tell a Probation and Parole officer of any change of address or
employment within two clear working days after the change.
He must not leave the Territory except with the permission of a Probation and
Parole officer.
He will, immediately upon his release, enter into the DASA three-month
residential rehabilitation program and do nothing to cause his early discharge from
that program.
He will also enter into any other program assessed as suitable by his Probation
and Parole officer and participate in that fully and do nothing to cause his early
discharge from the program.
He will not purchase or consume alcohol and will submit to testing as directed by
a Probation and Parole officer, or a Police officer in that regard.
He will not consume a dangerous drug. He will submit to testing as directed by a
Probation and Parole officer for the purpose of detecting the presence of dangerous
drugs.
He will participate in assessment, counselling, and or treatment as directed by a
Probation and Parole officer.
He will submit to a curfew as directed by a Probation and Parole officer and is
not to leave the nominated residence without prior permission from a Probation and
Parole officer, except in case of medical or dental emergency.
He will reside either at Kalkaringi or in Limbunya Station, and will not leave that
area without the prior permission from a Probation and Parole officer, except in the
case of medical or dental emergency.
As I have indicated the period of supervision will be 2 years from the date of his
release. His sentence will be deemed to have commenced on 4 December 2014.
I set a period of 2 years from the date of his release as the operational period for
the purposes of the Sentencing Act.
Is that clear?
MS COLLINS: Yes, your Honour.
MR DOOLEY: Yes, your Honour.
HIS HONOUR: Nothing arising?
MR DOOLEY: No, your Honour.
HIS HONOUR: Adjourn the Court please.
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