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N.B. Copyright in this transcript is the property of the Crown. If this transcript is copied without the authority of the Attorney-General of the Northern Territory, proceedings for infringement will be taken. __________ 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. ___________________