Northern Territory

Court of Appeal

  • Olsen v Sims [2010] NTCA 8 (30 November 2010) – Court of Appeal of the Northern Territory
    Breach of restraining order’ – ‘Repeal of statute’ – ‘Statutory interpretation

    Charge: Breach of restraining order

    Appeal type: Appeal against sentence

    Facts: The appellant was convicted of breaching a restraining order. Some months later he was convicted of failing to comply with the terms of the order. Contrary to the order, the appellant visited the victim at her home and entered in a verbal argument with her after consuming alcohol. The restraining order was made and the offences were against the Domestic Violence Act 1992 (NT) (the former Act). This Act was repealed on 1 July 2008 and replaced by the Domestic and Family Violence Act 2007 (NT) (the current Act). The appellant’s trial in respect to the second offence did not occur until after the current Act came into force. The magistrate found that sentencing provisions under the former Act applied to the appellant. Under s 10(1A) of the former Act, where a person is found guilty of a second offence the Court must impose a minimum sentence of at least seven days’ imprisonment. Accordingly, the magistrate imposed a sentence of seven days’ imprisonment. Section 121 of the current Act provides no mandatory minimum sentence for a second breach where no harm is caused and the court is satisfied it is not appropriate to record a conviction and sentence in the circumstances.

    On appeal to the Supreme Court, Riley J held the magistrate did not err in sentencing the appellant.

    Issue: Whether the magistrate erred in punishing the appellant to a greater extent than was authorised by the current Act by imposing the mandatory sentence of imprisonment of seven days under s 10(1A) of the former Act.

    Decision and Reasoning: All three judges on the Court of Appeal allowed the appeal. The sentence was quashed and the matter was referred back to the Court of Summary Jurisdiction for the appellant to be resentenced.

    Section 14(2) of the Criminal Code (NT) provides that while the appellant could be sentenced under the former Act for his second breach of the restraining order, he could not be punished to any greater extent than was authorised by both the former Act and the current Act.

    Mildren J concluded that the mandatory minimum sentence of seven days’ imprisonment under s 10(1A) of the former Act is a punishment ‘to any greater extent than is authorised by the current law’ pursuant to s 14(2) of the Criminal Code (NT). The Magistrate’s discretion to impose a lesser sentence than seven days under the current Act conferred a punishment to a greater extent than authorised by the current Act.

    Southwood J, agreeing with Mildren J, held that the sentence of seven days imprisonment imposed on the appellant was a greater punishment than authorised by ss 121(1) and (3) of the current Act. Those provisions of the current Act decreased the severity of the penalty required to be imposed for a second breach of a restraining order for the purposes of s 14(2) of the Criminal Code (NT). The sentence imposed was disproportionate to the gravity of the offending. Had the magistrate sentenced the appellant pursuant to s 121, he would not have imposed a sentence of seven days’ imprisonment. As a result, the Magistrate failed to sentence the appellant in accordance with s 14(2) of the Criminal Code (NT).

    Blokland J held that s 121(3) of the current Act does not authorise a sentencing magistrate to sentence on the basis that its starting point is a conviction and seven days’ imprisonment unless that penalty is appropriate and just in all the circumstances. This was the approach of the magistrate in finding he was bound to apply the mandatory minimum term under s 10(1A) of the former Act. The sentence imposed by the magistrate was not authorised when considering the application of s 14(2) of the Criminal Code (NT).

  • Ashley v Marinov [2007] NTCA 1 (4 May 2007) – Court of Appeal of the Northern Territory
    Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Physical violence and harm

    Charges: Breach of domestic violence order, aggravated assault

    Appeal Type: Appeal against conviction

    Facts: The appellant was charged with breaching a domestic violence order and aggravated unlawful assault. The facts that formed the basis of both charges were the same. At trial, the prosecution was not able to disprove provocation, so the appellant was acquitted on the assault charge. However, he was then convicted of the breach offence.

    Issue: Whether the defence under s 18 of the Criminal Code (NT) would apply. In particular, the Court had to consider whether the appellant had already been convicted of a ‘similar offence’, within the meaning of s 17 of the Criminal Code (NT).

    Decision and Reasoning: The appeal was allowed and the conviction was quashed. The appellant had already been acquitted of a similar offence. The impugned conduct relied upon for the breach offence was substantially the same or includes the conduct impugned in the offence of aggravated assault’ ([14]). Applying R v Hofschuster [1994] NTCCA 73, the Court found that ss 17 and 18 of the Code substantially replicate the existing common law principle that ‘a person is not to be prosecuted twice for the same criminal conduct’ ([11]).

    However, the Court noted at [17] that this conclusion does not mean that a person charged with assault cannot also be convicted of a breach of a Domestic Violence Order – ‘Much will depend on the precise terms of the order said to be breached, the facts relied upon to constitute the breach and whether or not, even if a defence under s 18 is not open, the court should nevertheless stay the prosecution as an abuse of process: see for example R v Carroll (2002) 213 CLR 635.’

Court of Criminal Appeal

  • Emitja v The Queen [2016] NTCCA 4 (21 October 2016) – Court of Criminal Appeal of the Northern Territory
    Aboriginal and torres strait islander people’ – ‘General deterrence’ – ‘Personal deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawfully causing serious harm

    Charge/s: Unlawfully causing serious harm.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the victim had been married in a traditional Aboriginal manner for 13 years before separating in 2013. The relationship had been blighted by domestic violence, one consequence of which was the issue of a domestic violence order in 2013 protecting the victim. In 2014, the applicant entered the victim’s house without permission. The applicant kicked the victim at the bottom of her left leg, causing her compound fractures. The applicant was sentenced to six years imprisonment without a non-parole period.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed by majority (Grant CJ and Kelly J concurring, Barr J in dissent). The majority made relevant statements about domestic violence in Aboriginal communities. Grant CJ and Kelly J quoted from Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998): ‘The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased’.

    Their Honours continued:

    ‘As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities’ (at [32]).

    They note that while ‘some Aboriginal communities have an unusually high incidence of serious crimes of violence and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence. Aboriginal women and children living in those communities ‘are entitled to equality of treatment in the law’s responses to offences against them’. The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature’ (see [33]-[34]). There are also practical societal reasons to consider personal and general deterrence. As in The Queen v Haji-Noor:

    ‘The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it’.

  • R v Duncan [2015] NTCCA 2 (9 February 2015) – Court of Criminal Appeal of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Alcohol’ – ‘Exceptional circumstances’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Unlawfully causing serious harm’ – ‘Victim

    Charge: Unlawfully causing serious harm

    Appeal Type: Crown appeal against sentence

    Facts: The respondent and the victim were in a domestic relationship and had a young daughter. After drinking together near the remote community of Kalkarindji, the respondent and victim got in an argument. The respondent, who was intoxicated, threatened to stab the victim with a pen and subsequently stabbed him in the back with a knife.

    Following an early guilty plea the respondent was sentenced to 18 months imprisonment, suspended immediately. The respondent is an Aboriginal woman who attended school until the end of year 6. She had never been employed and lived with the victim, their child and family. She received parenting payments from Centrelink. The trial judge found the respondent’s remorse was genuine. She waited for emergency services to arrive, made immediate admissions to police and subsequent formal admissions. The respondent continued to look after her young child while living with the victim, who had forgiven her. Finally, the trial judge found she had reasonable to good prospects of rehabilitation having not consumed alcohol since she committed the offence.

    Issues:

    • Whether the sentence imposed was manifestly inadequate.
    • Whether the circumstances of the case were ‘exceptional’ pursuant to section 78DI of the Sentencing Act to displace the minimum mandatory term of 3 months imprisonment.

    Decision and Reasoning: The appeal was allowed and the respondent was resentenced.

    • The sentence imposed on the respondent was manifestly inadequate. The offending was objectively very serious, with the respondent’s violent response to the verbal argument being ‘utterly disproportionate’ ([18]). The Court noted that alcohol-related violent crimes are a great drain on the medical resources of the Northern Territory and are an enormous cost to the community’ ([18]). In light of this and the objective seriousness of the offending, the sentence imposed was ‘so manifestly disproportionate to the seriousness of the offending that it shocks the public conscience ([19]). While the respondent’s subjective circumstances entitled her to considerable leniency, they could not justify a sentence disproportionate to the offending. As such, the sentence was increased to a term of three years imprisonment, to be suspended after six months with an operational period of two years and six months. In determining this sentence, the Court took into account the respondent’s age of 19, her responsibility for her child and other mitigating factors referred to by the trial judge.
    • As the Court upheld the sentence as manifestly inadequate and imposed a sentence that involved actual imprisonment for more than three months, it did not consider whether ‘exceptional circumstances’ for the purposes of section 78DI were present on the facts. However, the Court noted in obiter that what amounts to ‘exceptional circumstances’ will be a matter for the court in considering the facts of each individual case. The Court considered that whether the victim’s wishes with respect to sentencing should be taken into account as exceptional circumstances is for the discretion of the court in each case ([24]).
  • The Queen v Haji-Noor [2007] NTCCA 7 (18 May 2007) – Court of Criminal Appeal of the Northern Territory
    Aggravated assault’ – ‘Control’ – ‘New partner’ – ‘Not manifestly inadequate’ – ‘Prosecution appeal against sentence’ – ‘s 188(2)(b) Criminal Code (NT)

    Charges: Intentionally causing grievous bodily harm x 1; Aggravated assault x 1; Possession of cannabis x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The respondent attacked his former girlfriend and her new partner with a baseball bat ([22]-[23]). The aggravated assault charge was in relation to the respondent attacking his former girlfriend, leaving her with bruises, and the grievous bodily harm charge was in relation to the attack on the former girlfriend’s new partner, leaving him with permanent disability ([25]). There had been a history of domestic violence in the relationship between the defendant and his former girlfriend ([9]-[18]). The sentencing judge imposed a head sentence of 8 years and 6 months’ imprisonment ([4]). In relation to the aggravated assault charge, the respondent was sentenced to 2 years and 6 months’ imprisonment ([34]).

    Issues: One issue was whether the sentence for the aggravated assault charge was manifestly inadequate.

    Decision and Reasoning: The Court held that the sentence for the aggravated assault charge was within range.

    Justice Angel at [31] quoted the sentencing judge:

    The crimes of violence of the type you have committed are prevalent and too often occur against the background of a breakdown in a domestic relationship complicated by problems of access to children. Women in these situations are particularly vulnerable. They are entitled to such protection as the law can give them. Deterring you and other men who are minded to behave like you towards their female partners is an important factor in the exercise of the sentencing discretion.

    I need to add this. It is not uncommon for men in your position to harbour a belief that their former partner had been unreasonable. Nor is it uncommon for violent men in your position to harbour a belief that the former partner has brought the violence on themselves by being unreasonable. You and others like you must learn that only you are to blame for the situation in which you now find yourself.

    Justice Southwood added at [183]:

    Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it.

  • R v Secretary [1996] NTCCA 18 (2 April 1996) – Court of Criminal Appeal of the Northern Territory
    *Note this case was decided under now superseded legislation (s 28(f) Criminal Code Act 1986 (NT)) however the case contains relevant statements of principle.
    Emotional abuse’ – ‘History of abuse’ – ‘Manslaughter’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Substance abuse

    Charge: Murder

    Appeal type: Question of law under s 408(1) Criminal Code (NT)

    Facts: The accused was charged and pleaded not guilty to murdering her husband (the deceased). For eight years leading up to this incident, the deceased had verbally, mentally and physically abused the accused and their children. The violence and abuse increased substantially in the months prior to the killing. During this time, the deceased threatened to kill the accused, beat her with his hands and a belt and sexually assaulted her. The deceased was a chronic drug abuser. On a road trip the accused noticed a rifle in the back of the car. Upon returning home, the deceased threatened to beat the accused with a belt, punched her in the head, throttled her, and made further threats of abuse. Fearing for her life, the accused retrieved the gun and shot the deceased while he was asleep. At trial, the judge ruled that the issue of self-defence should not be left to the jury. Following this, the accused’s counsel made an application that the subject of the ruling be reserved for the consideration of the Court of Criminal Appeal. Subsequently, the accused pleaded not guilty to the charge of murder, but pleaded guilty to the charge of manslaughter by reason of provocation. The indictment was amended accordingly and the jury found the accused guilty of manslaughter. No conviction was recorded; the trial judge postponed judgment until the Court of Appeal returned an answer on the reserved question of law.

    Issue: Whether the trial judge was correct in ruling that self-defence was not open for consideration by the jury in the circumstances of the case.

    Decision and Reasoning: In a 2:1 majority, the question was answered in the negative. The conviction was quashed and a retrial was ordered.

    The defence counsel contended that as the deceased was asleep at the time he was shot, the accused could not have been acting in self-defence. The trial judge had accepted this reasoning: that because the deceased was asleep he had no ability to implement earlier threats. Mildren J of the Northern Territory Court of Criminal Appeal found that self-defence as provided under s 28(f) of the Criminal Code (NT) does not require a temporal connection between the assault and the force used to defend the assault: ‘The lack of any specific requirement for an apprehension of immediate personal violence, so far as the Code definition of assault is concerned, reinforces the view that an assault is a continuing one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat in the sense explained have not changed’ ([16]-[17]). Accordingly, it was open to the jury to find the deceased’s threat was an assault that continued while he was asleep. Having regard to the history of the domestic violence, it could also be inferred that, upon waking, the deceased intended to kill or cause grievous harm to the accused, and he had the ability to do so. It was also open for the jury to consider that the force used was not unnecessary in the circumstances. Mildren J regarded the jury’s verdict as a conviction despite no conviction being formally recorded by the trial judge. Having found the trial judge was incorrect in ruling self-defence was not open, Mildren J quashed the conviction and ordered a re-trial.

    Angel J, agreeing with Mildren J, held that self-defence extends to taking action to defend oneself from threatened assault even if this action is ‘a pre-emptive strike’. It was open to the jury to find the threat of the deceased constituted an assault and this assault continued to exist at the time of the shooting. Therefore, self-defence should have been left to the jury.

    In his dissenting judgement, Martin CJ found the trial judge was correct in his ruling. He considered the word ‘being’ in s 28(f) of the Criminal Code (NT) to require a contemporaneous connection between the assault and the act of self-defence. As the accused was asleep at the time of the shooting, no such connection could exist.

Supreme Court

  • Bush v Lyons [2018] NTSC 20 (28 April 2018) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Imprisonment’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘Perpetrator interventions’ – ‘Sentencing

    Charges: Contravention of domestic violence order x 1; Contravention of alcohol prevention order x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant was subject to an alcohol prevention order and a domestic violence order which named his wife and daughter as protected persons. The appellant attended the house at which his wife and daughter were residing, under the influence of alcohol, and caused a disturbance ([2]). The Local Court restored a previously suspended sentence and imposed cumulative terms of imprisonment of 4 months for the breach of domestic violence order and 5 days for the breach of alcohol protection order ([3]). The appellant had a history of breaching the same domestic violence and alcohol prevention orders ([5]).

    Issues: The appellant appealed on the grounds that the sentencing judge erred by:

    • misusing the appellant’s previous convictions in the sentencing process;
    • failing to include a rehabilitative component in the sentence;
    • failing to partially suspend the sentence; and
    • imposing a manifestly excessive sentence.

    Decision and Reasoning: The first, second and third grounds were dismissed (see [11], [19] and [25] respectively). The fourth ground, manifest excess, was upheld. Grant CJ outlined the following mitigating factors:

    • the low objective seriousness of the offending;
    • the maximum penalty of 2 years imprisonment;
    • the fact that the appellant has no record of violent offending against the protected persons; and
    • his early plea of guilty ([27], [35]).

    His Honour characterised the appellant’s repeated breaches as spontaneous and triggered by alcohol abuse, rather than premeditated ([32]). Quoting from Manakgu v Russell [2013] NTSC 48, his Honour agreed that penalties of more than 3 months’ imprisonment are properly reserved for conduct which constitutes physical assault or serious intimidation and threats ([31], [34]). His Honour reduced the sentence for breach of domestic violence order from 4 months to 2 months’ imprisonment ([37]).

  • Fernando v Firth [2017] NTSC 67 (25 August 2017) – Supreme Court of the Northern Territory
    Breach domestic violence order’ – ‘Particularise breach’ – ‘Post-separation violence’ – ‘Procedural fairness’ – ‘Threats

    Charges: Contravention of domestic violence order x 1; aggravated unlawful assault x 1.

    Appeal type: Appeal against conviction.

    Facts: The appellant and complainant were in a relationship for approximately 15 years. The offences occurred after the relationship ended ([10]). The appellant allegedly threatened to kill the complainant if she found another partner ([11]). At trial, the prosecutor did not particularise the words spoken by the appellant ([7]). The appellant denied threatening to kill her, but admitted to threatening to punch the complainant if she came near him, and telling her to stay away from him. The Magistrate accepted the defendant’s evidence, and convicted him of the charge on that basis ([32]).

    Issues: Whether the verdict was unsafe and unsatisfactory.

    Decision and Reasoning: The appeal was allowed. The Magistrate convicted the defendant based on his admissions, which evinced less serious conduct than the threats alleged by the prosecution ([49]). The charge required the complainant to have a ‘reasonable apprehension of violence’ ([50]). Since the prosecution did not specify the particular words used, held that the Magistrate did not accord the defendant procedural fairness by going outside the prosecution case ([49]).

  • R v Grant [2016] NTSC 54 (31 October 2016) – Supreme Court of the Northern Territory
    Relationship evidence’ – ‘Tendency evidence’ – ‘Unlawfully causing harm’ – ‘Unlawfully causing serious harm

    Charge/s: Unlawfully causing serious harm or unlawfully causing harm.

    Hearing: Voir dire hearing.

    Facts: The accused was charged with the offence of unlawfully causing serious harm to his female partner, the complainant, or, in the alternative, unlawfully causing harm to the complainant. The Crown sought the admission of tendency evidence related to the following fact in issue: whether the accused applied physical violence to the complainant in the early morning of 26 January 2016 and/or caused injuries to the complainant. The tendency sought to be proved was the tendency of the accused:

    1. To act in a particular way, namely engaging in verbal abuse and physically violent behaviour towards the complainant; and/or
    2. To have a particular state of mind, namely a violent and controlling disposition towards the complainant which he sometimes acted upon when he had been consuming alcohol.

    If the evidence (detailed at [5]) was not admissible as tendency evidence, the Crown sought to have it admitted as relationship evidence.

    Decision and Reasoning: The rulings on the voir dire hearing were –

    1. Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible in the trial as tendency evidence (see [61]-[72]).

      In order to be admitted for tendency purposes, the evidence had to satisfy the requirements in ss 97 and 101 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). Two questions arose in determining the admissibility of the evidence: (1) did the evidence have significant probative value? The relevant test is whether ‘the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in question’: CEG v The Queen [2012] VSCA 55 (see [30]-[60]); (2) did the probative value of that evidence substantially outweigh any prejudicial effect it may have on the accused? As per the Court, ‘[t]he test of a danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of unfair prejudice by reason of the admission of the evidence’ R v Lisoff [1999] NSWCCA 364.

    2. Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible as ‘relationship’ or ‘context evidence’ (see [73]-[82]).

      Evidence may also be admitted for non-tendency purposes. One example of non-tendency purpose is ‘relationship’ or ‘context’ evidence that is not relied on for a tendency inference. The High Court in HML v The Queen is authority for the proposition that evidence of other conduct by an accused may, depending upon the circumstances, be admissible for non-tendency purposes, including the following purposes (see [75]):

      1. as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]–[156]);
      2. as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offences charged (at [425], [431]);
      3. to overcome a false impression that the event was an isolated one, that the offence happened “out of the blue”, where the acts are closely and inextricably mixed up with the history of the offence (at [500], [513]);
      4. to ensure that the jury are not required to decide issues in a vacuum (at [428], [498]); and
      5. as negativing issues raised such as accident or mistake (at [430]).

      Although HML was a case involving sexual offences, relationship evidence may also be admissible in cases involving violence, including assault-type offences (see examples at [76]).

      The admissibility of relationship evidence is governed by the general test of relevance in s 55 of the ENULA and the directions and obligations contained in Part 3.11 (especially ss 135 and 137). The Crown contended that the evidence was relevant and admissible as relationship or context evidence because it was necessary to:

      1. Avoid the circumstances of the alleged offence appearing inexplicable or being misunderstood in isolation; see Roach v The Queen [2011] HCA 12 at [45]
      2. Negative the defence case of self-inflicted injury; R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 at [15], [22]-[45]; Bryant v The Queen [2011] NSWCCA 26 at [92]; McDonald v The Queen [2014] VSCA 80 at [28]- [29]
      3. Show the state of mind of the accused at the time of the alleged offence. R v Atroushi [2001] NSWCCA 406 at [33], [45], [47]; Boney v The Queen [2008] NSWCCA 165 at [29]
      The relationship evidence here was both relevant ([79]-[80]) and not excluded (its probative value was neither outweighed by the danger of unfair prejudice to the accused nor substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused) ([81]-[82]).
  • Houseman v Higgins [2015] NTSC 88 (7 December 2015) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Domestic violence order’ – ‘Formalities in making domestic violence order’ – ‘Service

    Charge: Breach of domestic violence order

    Appeal type: Appeal against acquittal, validity of domestic violence order

    Facts: The respondent was served with a police domestic violence order under s 41 of the Domestic and Family Violence Act 2007 (NT) (the Act). The order set out the reasons for making the order and conditions of full non-contact. However, it did not provide a specified period for which the order was in force. The Court of Summary Jurisdiction confirmed and varied the order to be in force for 12 months.

    After being in contact with the protected person, the respondent was subsequently arrested for breaching the domestic violence order. However, at the time of arrest the respondent had not been served with the court confirmed and varied domestic violence order. The magistrate found the respondent was not guilty on the basis that the domestic violence order made by the police ceased to be in force once confirmed by the court and the respondent had not been served with the court order.

    Issues:

    • Whether the domestic violence order was invalid because it did not state the period the order was to be in force.
    • If the order was valid, whether the magistrate erred in finding the respondent not guilty in failing to apply s 120(2)(b)(ii) of the Act.

    Decision and Reasoning: The appeal was upheld.

    • Southwood J found it is not necessary for police to state the duration of a domestic violence order for it to be valid. A police domestic violence order continues in force until it is revoked. Under s 27 of the Act a domestic violence order is in force for the period stated in it. This section does not state that an order cannot be made for an unspecified or unlimited period, nor does any other provision in the Act. Further, s 42 contained in Part 2.6 of the Act, provides the police must record the reasons for making the order and the time and place for its return. Again, this provision does not require police to specify the period for which the order is to be in force. The purpose of Part 2.6 is to protect the protected person until a court can consider the matter. Consistent with this purpose, a police domestic violence order is to remain in force until further order or until the order is revoked. This is made clear by s 82 of the Act which states that at a show cause hearing the court may either confirm the order with or without variations or revoke it.
    • Given the order was valid, the respondent’s conduct in contacting the protected person constituted a breach of both the domestic violence order made by the police and the confirmed and varied order made by the court under s 120(1) of the Act. The fact the respondent had not received a copy of the court order at the time of arrest was not a defence under s 120(2)(a) of the Act, as the police domestic violence order was still in force: s 120(2)(b)(ii) of the Act. Therefore, the charge should not have been dismissed and the magistrate erred in dismissing the charge and in failing to consider s 120(2)(b)(ii) of the Act.
  • Gorey v O’Neill [2015] NTSC 66 (1 October 2015) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Purpose of domestic violence order’ – ‘Sentencing’ – ‘Situational breach

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order restraining him from, among other conditions, approaching, contacting or remaining in the company of his wife (the victim) when consuming or under the influence of alcohol. On the day of offending, the appellant had been drinking and travelled in the car with the victim. His blood alcohol level was 0.05 per cent. The appellant claimed he was in the car with the victim to attend to matters in the administration of the estate of the victim’s father-in-law. He also denied knowing that the domestic violence order was still in force. In relation to this conduct the appellant was charged, pleaded guilty and convicted of breaching the domestic violence order.

    The appellant had an extensive offending history, including 16 convictions for aggravated assault, one conviction for causing grievous bodily harm and eight convictions for breaching domestic violence orders. Of these, 22 of the offences were committed against the victim. The magistrate considered this history of domestic violence offending and the need for specific deterrence together with the mitigating factor that the victim suffered no harm. The appellant was sentenced to three months imprisonment, taking into account a discount of 25 per cent for the early guilty plea.

    Issue: Whether the sentence was manifestly excessive in the circumstances.

    Decision and reasoning: The appeal was dismissed.

    While a starting point of four months imprisonment seemed high for a ‘situational breach’ in which no harm was caused, it was necessary to consider the preventative and protective role of domestic violence orders. Barr J noted that ‘Given the preventative purpose of DVO, the fact that the parties may have been drinking while sitting down ‘in a good way’, or that the offender has on the particular occasion not been aggressive or threatening or violent to the protected person, does not necessarily result in a lenient sentencing outcome for a recidivist offender’ ([28]). The appellant’s criminal history demonstrated that while no harm resulted from the breach, there was a real risk that physical or emotional injury could occur and protection was needed to prevent such harm. Further, it established that he had a ‘continuing attitude of disobedience of the law’ ([33]). Therefore, the magistrate’s starting point of four months imprisonment, while on the high end of the range for the nature of the breach, was not outside the bounds of sentencing discretion.

  • R v Stevenson [2015] NTSC – Sentencing Remarks 21353266 (Kelly J) (14 September 2015) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Alcohol’ – ‘Community protection’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘History of abuse’ – ‘Manslaughter’ – ‘Murder’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge: Murder (sentenced for manslaughter)

    Proceeding: Sentencing

    Facts: The defendant was charged with the murder of his wife (the victim) after hitting her with a crate twice, kicking her in the back, and subsequently bashing her for three hours then leaving her on the sidewalk. The next morning the defendant went to find the victim to discover she was dead. This occurred after the defendant and the victim had a fight over his drinking habits. He was intoxicated at the time the assaults occurred. A domestic violence order was previously made against the defendant in order to prevent him from being with, assaulting or threatening the victim. The Crown accepted the defendant’s guilty plea to manslaughter on the basis that intention to kill or cause serious harm could not be proved beyond reasonable doubt due to the defendant’s intoxication at the time of the violent assaults.

    Issue: What sentence should the defendant receive?

    Decision and Reasoning: The defendant was sentenced to 14 years imprisonment with a non-parole period of 8 years.

    The defendant had a history of domestic violence assaults against his wife. He had previously been convicted of three aggravated assault offences and one breach of a domestic violence order offence. Kelly J noted that each assault followed a similar pattern, with an argument resulting in the defendant ‘savagely’ bashing his wife. These attacks always involved alcohol and usually involved a weapon. These convictions meant the defendant was not a person of good character and was not entitled to a lighter sentence for being a first offender.

    The defendant is a Walpiri man who speaks Walpiri and some Gurindji. He left school in year 9 and speaks English but cannot read or write. The defendant has not worked since his first wife committed suicide in 2002. He began drinking as a teenager and was drinking heavily at the time of the offence.

    In providing her reasoning for sentencing, Kelly J highlighted the prominence of alcohol related violence in the Northern Territory: ‘Drunken violence is far too common in our community. It is particularly common, unfortunately, in Aboriginal communities and vulnerable Aboriginal women, vulnerable people of all kinds, deserve the fullest protection that the law can give them.’ The need to punish and for specific deterrence to prevent the defendant from reoffending, as well as the need to protect the community and other women from being hurt by the defendant, were emphasised. There were also a number of aggravating factors that made the offending more serious. The defendant used several weapons when attacking his wife, rather than just losing his temper and lashing out. He also went looking for his wife, having pre-planned the attack, and did not stop bashing her even when she begged him to.

    In the factually similar case of R v Wheeler [2005] NTSC – Sentencing Remarks 20505473 (Southwood J), the defendant (Mr Wheeler) received a sentence of 10 years and 6 months imprisonment. However, Kelly J found the defendant’s conduct in the present case was more serious. Unlike Mr Wheeler, he was not provoked by his wife, showed no remorse after he finished bashing her, and did nothing to help her. He also only pleaded guilty after a preliminary hearing had already occurred with 36 witnesses, whereas Mr Wheeler pleaded guilty immediately. These circumstances taken together resulted in Kelly J finding a proper sentence of 16 years imprisonment. A reduction of about 12 percent was given as a result of the guilty plea.

  • Mamarika v Rourke [2015] NTSC 42 (23 July 2015) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Alcohol’ – ‘Deterrence’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Pregnant victim’ – ‘Sentencing’ – ‘Totality

    Charge: Aggravated assault

    Appeal Type: Appeal against sentence

    Facts: The appellant, who was intoxicated at the time, pushed and punched his pregnant wife (the victim) in the stomach and head. After handing himself into police, he pleaded guilty to unlawfully assaulting the victim with the aggravation of male-on-female assault (under s 188(2)(b) Criminal Code 1983 (NT)). When asked why he assaulted the victim he said it was because his wife told him to stop drinking. The appellant was initially convicted and sentenced to a term of 10 months imprisonment, to be served cumulatively upon a restored sentence of seven months for previous offending including assaulting the same victim. This earlier assault involved the appellant striking the victim with a sword, then punching and kicking her.

    In sentencing, the magistrate emphasised that the victim was pregnant at the time the assault occurred: ‘Women of course deserve to be safe whether they are in Darwin, whether they are at home, and they do not deserve to be treated in this way, particularly – and it is an aggravating factor – when she was 28 weeks pregnant.’ (at [7]). A reduction to the sentence was given when considering the principle of totality and the presence of the appellant’s guilty plea.

    Issues:

    • Whether the magistrate erred in failing to properly give effect to the principle of totality.
    • Whether the sentence imposed was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    • The appellant argued that the magistrate did not assess the overall sentence and consider whether any further adjustment was warranted, as required by Mill v R [1988] HCA 70. That is, she did not make the sentence concurrent or partially concurrent with the restored sentence. Rather, the magistrate applied the principle of totality by reducing the sentence for the fresh offending. Barr J rejected this argument in finding the magistrate clearly stated she had applied the principle of totality and whilst the method was not preferable, it was nonetheless appropriate.
    • In determining whether the sentence was manifestly excessive, Barr J considered the previous offending of the appellant. In addition to a significant number of property offences, he had been convicted five times for aggravated assault and once for a breach of a domestic violence order. When considering this history of offending and the present assault, the objectives of denunciation, punishment, general deterrence and specific deterrence were relevant to the sentencing of the appellant. Barr J found when taking all these factors into consideration and characterising the offending as ‘mid range’ (at [16]), the appropriate starting point was 18 months. A discount of one third for the guilty plea, as given by the Magistrate, was justified in the circumstances, resulting in a sentence of 12 months. When applying the principle of totality to this sentence, there was some basis for concurrency of three months. This hypothetical sentencing exercise resulted in a total effective sentence of 16 months. Therefore, the sentence of 10 months imprisonment was not manifestly excessive in its own right or when fully accumulated with the restored sentence of seven months imprisonment.
  • Namundja v Schaefe-Lee [2015] NTSC 36 (12 June 2015) – Supreme Court of the Northern Territory
    Aboriginal and torres strait islander people’ – ‘Aggravated assault’ – ‘Alcohol’ – ‘Breach of alcohol protection order’ – ‘Deterrence’ – ‘History of abuse’ – ‘Mitigating factors’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Repeat offender

    Charges: Aggravated assault, breach of alcohol protection order

    Appeal type: Appeal against sentence

    Facts: The appellant, who was intoxicated at the time, had an argument with his wife (the victim). He subsequently dragged the victim outside, punched her in the face multiple times, shoved her into a shelf and punched her twice in the stomach. He was charged and pleaded guilty to one count of aggravated assault under s 188(2)(b) Criminal Code 1983 (NT) (victim suffered harm and male-on-female assault) and one count of breaching a police issued Alcohol Protection Order. The appellant had a number of previous convictions, including three counts of aggravated assault against the victim, four counts of breach of a domestic violence order and nine counts of breaching an Alcohol Protection Order. He resided in Oenpelli and had been an artist member of Injalak Arts for around 20 years. This job would continue on the appellant’s release. His counsel argued his prospects of rehabilitation would be improved if he participated in the Family Violence Program. At trial, the magistrate relied on the seriousness of the offending and his past history to conclude the appellant needed to be specifically deterred, despite any positive attributes, and the community needed to know such conduct is unacceptable. The appellant was sentenced to 12 months imprisonment after a reduction of four months for pleading guilty. A non-parole period was not fixed due to the seriousness of the offending and continued ongoing breaches of court orders.

    Issues: Some issues on appeal were whether the magistrate:

    • Failed to adequately consider the appellant’s prospects of rehabilitation;
    • Failed to adequately consider the principles outlined in Dinsdale v R [2000] HCA 54 that all relevant sentencing considerations must be reconsidered in determining whether to suspend a sentence; and
    • Failed to adequately consider the sentencing disposition of parole.

    Decision and Reasoning: The appeal was upheld on ground 3. Grounds 1 and 2 were dismissed.

    Blokland J began by noting that ‘Offending of this kind, men assaulting their wives or partners, is an intractable problem in the Northern Territory. With few exceptions, imprisonment is often the appropriate punishment… In most cases, particularly with respect to repeat offenders, positive subjective features generally need to be very carefully balanced as rarely will they outweigh the significance of the gravity of offending of this kind.’ ([19])

    • The fact the magistrate did not specifically refer to the appellant’s job history and prospective employment did not mean that he failed to adequately consider these factors. Given the severity of the offending, previous convictions, the need to protect the victim and the prevalence of domestic violence in the particular case, such factors would not have resulted in a lesser sentence.
    • While the magistrate did not explain every consideration taken, he was entitled to refuse a suspended sentence due to the appellant’s poor history of complying with orders.
    • There was no sufficient basis to decline to set a non-parole period in accordance with s 54(1) of the Sentencing Act 1995 (NT). Under s 53(1), a court must set a non-parole period in cases of imprisonment for 12 months or more ‘unless it considers the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such period inappropriate’. The magistrate failed to consider these factors, basing his decision primarily on the previous breaches of orders. Therefore, this ground of appeal succeeded and a non-parole period of 8 months was ordered.
  • Orsto v Grotherr [2015] NTSC 18 (31 March 2015) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Character’ – ‘Exceptional circumstances’ – ‘Exposing children’ – ‘Mandatory minimum sentence’ – ‘Sentencing’ – ‘Victim

    Charge: Aggravated assault

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order that restrained her from harming the victim. On the day of offending, the appellant and the victim got in an argument after the victim returned home from work for lunch against the appellant’s wishes. The appellant was upset that the victim woke up their daughter. She then forcefully struck the victim’s head. In relation to this conduct the appellant was charged, pleaded guilty and convicted of aggravated assault, with the circumstance of aggravation that the victim suffered harm. The victim had a prior conviction for aggravated assault (weapon-harm) in respect to the same victim. In his victim impact statement, the victim said he did not wish the appellant serve gaol time, as she was pregnant. A character reference was also provided by aboriginal community members that outlined the appellant’s positive characteristics as a mother who had suffered hardship throughout her life. The magistrate heard the appellant had previously been the victim of domestic violence in the relationship and grew up in a household with her parents who had domestic violence issues.

    Section 78D of the Sentencing Act 1995 (NT) requires a mandatory minimum sentence of three months actual imprisonment for aggravated assault, unless exceptional circumstances exist under s 78DI. The appellant’s counsel submitted exceptional circumstances existed on the facts. These circumstances were constituted by a combination of factors including that the victim did not wish the victim to go to gaol; the appellant had sought counselling; she was suffering hardship having attempted suicide the previous year and losing a child two months prior to sentencing; she had previously been the victim of domestic violence herself; and she had ongoing employment within the community. After determining these factors did not amount to exceptional circumstances, the magistrate sentenced the appellant to three months imprisonment.

    Issue: Whether the magistrate erred in finding the circumstances of the case were not exceptional for the purposes of s 78DI.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    Referring to the obiter comments made in R v Duncan [2015] NTCCA 2, Blokland J stated that exceptional circumstances do not exist unless the minimum term is greater than the term that would ordinarily be imposed ([37]). This was the case on the facts, as the magistrate noted he would have suspended the sentence but for the mandatory prescribed minimum. In determining whether exceptional circumstances exist, the court must consider the whole of the circumstances in the case. The individual factors do not need to be exceptional. Rather, the factors considered together must amount to exceptional circumstances.

    The magistrate erred in his consideration of whether exceptional circumstances existed. The remarks were ‘unnecessarily constrained’ and the magistrate failed to consider a number of mitigating factors. In support of the magistrate’s reasoning, Blokland J emphasised the need for general and specific deterrence given the offence occurred in the vicinity of a young child. Further, the victim’s wish that the appellant not be imprisoned has little weight in domestic violence cases. The fact the victim was previously a victim of domestic violence herself without additional information about the duration and extent of the abuse also carried little weight towards exceptional circumstances existing. However, Blokland J concluded that the appellant’s personal circumstances of having just lost a child at the time of sentencing and attempting suicide the year prior made the case exceptional. These personal circumstances were such that being away from family and community support whilst grieving meant imprisonment would be more burdensome on the appellant than other offenders. The sentence was quashed, and the appellant was resentenced to three months imprisonment wholly suspended with an operational period of six months.

    Note: at June 2018 this case is pending an appeal.

  • Kassman v Dwyer & Anor [2014] NTSC 60 (10 December 2014) – Supreme Court of the Northern Territory
    Domestic violence order’ – ‘Procedural fairness

    Procedure: Making of domestic violence order

    Appeal type: Appeal against imposition of domestic violence order

    Facts: The plaintiff, an Aboriginal Community Police Officer, was in a relationship with the victim. The victim made a number of allegations of domestic violence. As a result, a police domestic violence order was imposed against the plaintiff pursuant to s 41 of the Domestic and Family Violence Act 2007 (NT). In relation to this order, the plaintiff received a notice ordering him to appear before the court on 8 August 2014 to show cause as to why the order should not be confirmed. After the victim expressed an intention to leave Darwin, the plaintiff was informed that the order would stay in force to ‘keep the peace’ and would be revoked once the victim moved. The victim informed the plaintiff she would be leaving Darwin on 13 August 2014. As a result of this and advice given by the officer who made the police order, the plaintiff did not attend court on 8 August 2014 as required. The magistrate refused a short adjournment to enable the legal counsel to obtain further information to explain the absence of the plaintiff and confirmed the order for 12 months.

    Issue: Was the plaintiff denied natural justice?

    Decision and reasoning: Through the ‘unfortunate combination of events’ the plaintiff was denied natural justice. His superiors in the Police Force left him with the understanding that he was not required to attend court on 8 August 2014. As a result, the plaintiff was not given the opportunity to show cause as to why the order should not be confirmed. The magistrate confirmed the order without providing reasons for refusing the adjournment or confirming the order for 12 months. Additionally, the magistrate failed to provide the plaintiff the opportunity to make submissions, contrary to s 82(2) Domestic and Family Violence Act 2007 (NT). The decision was set aside and the matter was remitted to the Court of Summary Jurisdiction for determination.

  • R v Ashley [2014] NTSC 26 (15 July 2014) – Supreme Court of the Northern Territory
    Admissibility of evidence’ – ‘Hearsay’ – ‘Jury’ – ‘Murder’ – ‘Presumption of innocence

    Charge: Murder

    Proceeding: Reasons for rulings given during trial as to admissibility of evidence, discharge of jury member

    Facts: The accused was charged with murdering his ex-partner. He denied any involvement with her death and told police he believed another man or bikies associated with him likely murdered the victim. During the course of the trial, several witnesses were asked what they knew of the other man and his association with the victim and the accused. The prosecution sought to partially exclude evidence of three witnesses about what the accused had told them about people, including the other man, behaving suspiciously around him.

    During the trial Blokland J received a note from a juror that alleged three of the other jurors considered the accused guilty until convinced otherwise (Ashley v R [2016] NTCCA 2, [10]). The accused’s Counsel requested the jury be discharged.

    Issues:

    • Was the evidence of the three witnesses admissible?
    • Should the jury be discharged because of the juror’s note?

    Decision and reasoning:

    • The evidence of the three witnesses was hearsay. However, it was admissible as the exception in s 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) applied. While an accused is not competent to give evidence as a witness for the prosecution, they are ‘available’ for the purposes of s 66 to give evidence in their own case. However, subsequent to this ruling during the trial the accused’s Counsel advised the court that the accused would not give evidence. Therefore, the jury were directed to disregard the evidence initially admitted under s 66.
    • Blokland J refused to discharge the jury and rather provided directions to the jury reminding them of the presumption of innocence, the need to remain impartial and the duty to keep an open mind when hearing the evidence.

    NB: The ruling not to discharge the jury was held to be an error on appeal in Ashley v R [2016] NTCCA 2. The conviction was quashed and a retrial was ordered.

  • R v Ashley [2014] NTSC 15 (10 July 2014) – Supreme Court of the Northern Territory
    Admissibility of evidence’ – ‘Hearsay’ – ‘Motive’ – ‘Murder

    Charge: Murder

    Proceeding: Pre-trial rulings on evidence

    Facts: The accused was charged with murdering his ex-partner with whom he had two children. The prosecution sought to adduce evidence relating to the state of the accused and victim’s relationship from the time of separation until the victim’s death. The prosecution was attempting to argue that motive could be inferred from the nature of the relationship between the parties contained within such evidence. Some of this evidence comprised hearsay representations made by the victim to other witnesses.

    Issue: Whether the evidence relating to the accused and victim’s relationship was admissible.

    Decision and reasoning: Evidence as to the state of the relationship is admissible if it is relevant to the accused’s anger towards the victim by the use of controlling behaviours and frustration directed towards the victim. This kind of evidence is relevant at common law and within the meaning of s 55 of the Evidence (National Uniform Legislation) Act 2011 (NT) as evidence that could rationally affect the assessment of a fact in issue. However, hearsay evidence can only be admitted under s 67 if the representations made by the deceased occurred when or shortly after the asserted fact occurred in circumstances where it was unlikely to be fabricated (s 65(2)(b)), or if it is highly probable the representations were reliable (s 65(2)(c)).

    Blokland J considered whether 31 pieces of hearsay evidence were admissible. The evidence included representations made by the victim to police officers prior to her murder, to the practitioner for the Department of Children and Families who was managing the case, and to her daughter. The representations related to the accused’s physical or emotional control over the victim and his history of assaulting her.

    One item considered was a statement the victim made to the police describing an assault by the accused. Representations contained within this statement regarding the assault and the accused taking the victim’s car keys were admitted. Text messages and statements regarding the accused’s threat to kill himself were also admitted. However, a statement made by their son was not admitted, as it was not a representation made by the victim as required by s 65. The statement also contained representations about the accused visiting the victim’s brother’s house and allegations that the accused was violent towards his daughter. These representations were also not admitted as evidence as their probative value outweighed the danger of prejudice against the accused.

    Some other representations that were not admitted included those made to the case management practitioner that the victim attempted to leave the accused but he would not let her; that the accused was not physically but emotionally abusive towards the victim; and that the accused was harassing the victim at her brother’s house.

    Note: Subsequent to this ruling, the accused stood trial and was found guilty of murder. Blokland J provided additional reasoning on two procedural matters that arose during the trial in R v Ashley [2014] NTSC 26. The accused subsequently successfully appealed the conviction in Ashley v R [2016] NTCCA 2 on procedural grounds amounting to a miscarriage of justice. The conviction was quashed and a retrial ordered.

  • Manakgu v Russell [2013] NTSC 48 (14 August 2013) – Supreme Court of the Northern Territory
    Aboriginal and torres strait islander people’ – ‘Alcohol’ – ‘Breach of domestic violence order’ – ‘Manifestly excessive’ – ‘Sentencing’ – ‘Situational breach

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order in favour of his wife (the protected person) that restrained him from ‘approaching, entering or remaining in the company of the protected person when consuming alcohol… or when under the influence of alcohol’. After attending the Gunbalunya Sports and Social Club and drinking 13 cans of beer, the appellant went to the protected person’s home. He was arrested and pleaded guilty to breaching the domestic violence order, which had been in force for nine months. The order had been complied with for the previous nine months, but the appellant had been in prison for five of them. The appellant had two prior convictions for breach of domestic violence orders. In considering this repeat offending and history of failing to comply with orders, the magistrate sentenced the appellant to 3 months imprisonment.

    Issue: Whether the sentence imposed was manifestly excessive in all of the circumstances?

    Decision and Reasoning: The appeal was allowed. Barr J observed: ‘Generally speaking, a breach where harm or fear of harm is caused to the protected person is worse than a merely ‘situational’ breach. The appellant’s breach was a low order ‘situational’ breach. No harm or fear of harm was caused’ ([16]). Barr J noted that in general, ‘the more egregious the conduct in terms of causing harm or fear of harm to the protected person, the greater the probable degree of contempt for the court’s order or orders’ ([17]). On the facts, the magistrate erred in assessing the appellant’s conduct as more than a ‘minor case’. While some actual imprisonment was justified for reasons of specific and general deterrence, the offending was at the low end of the scale of seriousness at [23]. The sentence of three months’ imprisonment was quashed, and a sentence of 15 days’ imprisonment was imposed.

  • JCM v LJN [2013] NTSC 50 (13 August 2013) – Supreme Court of the Northern Territory
    Both parties in vulnerable situation’ – ‘Domestic violence order conditions’ – ‘Fresh evidence’ – ‘Myths and misunderstanding - not leaving violence’ – ‘People with mental illness’ – ‘Variation of domestic violence order’ – ‘Victim

    Appeal type: Variation of domestic violence order

    Facts: A domestic violence order was taken out by police in favour of the appellant and her daughter (the protected persons). The order restrained the respondent from approaching, contacting or remaining in the company of the appellant or any place she was living, working, staying, visiting or is located. All parties consented to vary this non-contact order to a non-violence order restraining the respondent from ‘causing harm or attempting or threatening to cause harm to the protected persons; causing or attempting to cause damage to the property of the protected persons; and intimidating or harassing or verbally abusing the protected persons’ ([3]). At hearing, the Court of Summary Jurisdiction refused to grant the variation.

    The respondent subsequently presented fresh evidence in support of the variation from a non-contact to a non-violence domestic violence order. The appellant and her daughter briefly moved to a shelter after the domestic violence order was originally taken out. They then moved back into their home, leaving the respondent to move out in order to comply with the non-contact order. This was against the wishes of the appellant and their child, who wanted to continue living with the respondent. With nowhere else to stay, the respondent slept in his car while continuing to support the appellant and their child financially. He was unable to access tools needed for his work that were left in the house. The respondent suffered from a mental illness and had commenced treatment with the support of the appellant. In the circumstances, the police were satisfied a non-violence order was appropriate.

    Issues: One relevant issue concerned whether the Court of Summary Jurisdiction failed to properly consider and give due weight to the matters to be considered in making a domestic violence order under s 19(2)(e) of the Domestic and Family Violence Act 2007 (NT).

    Decision and reasoning: The appeal was allowed.

    The appellant’s wish to remain in a relationship with the respondent is not in itself enough to grant a variation of the domestic violence order. Blokland J noted that ‘the desire to stay in the relationship may be an indication of ongoing dependence, violence or intimation’ ([9]). However, this factor had to be considered in combination with the fact the original order was made on incomplete information, the respondent had not been in breach of a domestic violence order for five years, and the fresh evidence established that the non-contact order placed the appellant, the respondent and their child in vulnerable situations. While this was a situation where there was a need for a domestic violence order, a non-violence order would be more effective than a non-contact order and would continue to provide protection for the appellant and their daughter. The non-violence order would likely result in the respondent continuing treatment for his mental illness and taking further responsibility, thereby supporting protection in the context of an ongoing family relationship.

  • Watson v Chambers [2013] NTSC 7 (12 February 2013) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Cumulative sentences’ – ‘Double jeopardy’ – ‘People living in regional, rural and remote communities’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order (two counts), aggravated assault

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim were in a relationship and resided together in the remote town of Maningrida. A domestic violence order was in place to protect the victim from the appellant harassing, threatening or verbally abusing her or assaulting or threatening to assault her. One afternoon the victim left their house when the appellant became angry and demanded she stay, saying ‘Don’t you move, I’m going to get a hammer and smash you in the arm’ (count 2). Several days later the appellant accused the victim of having an affair. He subsequently struck her in the arm with a metal cup, grabbed her hair and dragged her to their room where he threw her on the ground, punched her twice in the face and struck her with a steel mop handle (counts 4 and 6). In relation to this conduct, the appellant was charged and convicted of two counts of contravening a domestic violence order (counts 2 and 4) and one count of aggravated assault with the circumstances of aggravation under s 188(2)(b) Criminal Code 1983 (NT) that the victim suffered harm, it was a male-on-female offence and the victim was threatened with a weapon (count 6). The effective head sentence imposed by the magistrate was 11 months’ imprisonment to be suspended after the service of 6 months’ imprisonment, subject to the appellant completing the Indigenous Family Violence Offender Program (IFVOP). This head sentence comprised of:

    • Count 2: two months’ imprisonment
    • Count 6: six months’ imprisonment cumulative on the sentence imposed on count 2
    • Count 4: three months’ imprisonment cumulative on the sentence imposed on count 6

    The magistrate initially made the sentence on count 4 concurrent with count 6, making the effective sentence 8 months imprisonment. However, this was adjusted as a result of s 121(7) of the Domestic and Family Violence Act 2007 (NT) and the effective sentence was increased to 11 months.

    Issues: Some grounds of appeal were whether the magistrate:

    • Erred by finding the appellant guilty on count 4 and count 6 on the same facts; and
    • Erred in her application of the totality principle.

    Decision and reasoning: The appeal was allowed on both grounds and the appellant was resentenced.

    • Counts 4 and 6 referred to the same incident. Citing Ashley v Marinov [2007] NTCA 1, Blokland J noted that where the facts of the breach of the domestic violence order were the same or similar to the facts constituting the assault, the two findings cannot stand. To do so would violate the principle against double jeopardy. The conduct of the appellant in accusing the victim of having an affair did not constitute ‘harassing, threatening or verbally abusing’ as provided in the domestic violence order. The conduct was not particularised at trial and the magistrate erred in convicting the appellant on count 4. Blokland J ordered the quashing of the conviction and sentence in respect to count 4.
    • Blokland J agreed with Barr J’s remarks in Idai v Malogorski [2011] NTSC 102 in finding that the mandatory accumulation of sentences does not displace the principle of totality. The conduct that constituted counts 4 and 6 was a continuation of the offending of count 2. Therefore, while the sentences had to be accumulated, there should have been an adjustment to the individual sentences when the magistrate made the correction.

    The appellant was resentenced to 14 days’ imprisonment on count 2 and 6 months’ imprisonment on count 6. The total effective term of imprisonment of 6 months and 14 days was suspended after the service of five months and one week imprisonment. The condition of the appellant completing the IFVOP was upheld.

  • Palmer-Peckham v Westphal [2012] NTSC 74 (28 September 2012) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly excessive’ – ‘Sentencing

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant and victim had previously been in a relationship. The appellant was the subject of a domestic violence order that restrained him from harassing or harming the victim and approaching, entering or remaining in her company or in her place of residence or work when under the influence of alcohol or another intoxicating substance. After consuming alcohol one day, the appellant went to the victim’s mother’s house where she was living at the time. The victim was not home. He returned later that afternoon after consuming more alcohol. When the victim arrived home, the appellant allegedly assaulted her. However, there was not enough evidence to conclude this beyond reasonable doubt. In relation to this conduct the appellant was charged, pleaded guilty and was convicted of breaching the domestic violence order. The magistrate sentenced the appellant to two months’ imprisonment, suspended immediately with an operation period of 12 months.

    In sentencing, the magistrate noted that the appellant had breached the domestic violence order in three respects and considered the conduct as the upper end of offending. However, the appellant had no substantial offending history and entered his guilty plea early. The magistrate accepted that while the appellant had a problem with alcohol, he had work available and had good prospects of rehabilitation. He considered the starting point of six months’ imprisonment, reduced to two months’ imprisonment wholly suspended when considering the mitigating and aggravating factors.

    Issues: Whether the sentence imposed was manifestly excessive.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    Olsson AJ considered the general approach adopted by the magistrate in order to promote general deterrence was reasonable. However, the magistrate’s starting point of six months’ imprisonment was very high for a first conviction when considering the victim suffered no physical or lasting emotional harm. It is not clear from the magistrate’s sentencing remarks how he arrived at the ultimate reduction from six to two months’ imprisonment. A reduction of 30 per cent was given for the timely plea. Beyond this, the magistrate only noted the appellant’s character and prospects for rehabilitation for the further reduction. Accordingly, the sentence was so excessive as to manifest error on the part of the magistrate. Olsson AJ resentenced the appellant to 21 days’ imprisonment, suspended immediately with an operation period of 12 months.

  • Blitner v Vanzella [2012] NTSC 72 (26 September 2012) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Lapse of domestic violence order

    Charge: Breach of domestic violence order

    Appeal type: Appeal against conviction

    Facts: The appellant was the subject of a police domestic violence order that restrained him from approaching, contacting or remaining in the company of the protected person when consuming alcohol or under the influence of alcohol. Subsequently, the Court of Summary Jurisdiction made restraining orders against the appellant. These orders did not include any ‘non-intoxication conditions’. Four days after the restraining orders were made, the Court of Summary Jurisdiction allowed the police domestic violence order to lapse. The appellant was subsequently charged with breaching this order. He pleaded guilty to these offences and was convicted and fined.

    Issue: Whether the police domestic violence order was in force and capable of being breached.

    Decision and reasoning: The appeal was allowed and the conviction and sentence was quashed.

    Under s 82 of the Domestic and Family Violence Act 2007 (NT) the court must either confirm or revoke a police domestic violence order. The magistrate’s order to allow the police domestic violence order to lapse was an effective revocation under s 82. As a result, the appellant was not restrained by a domestic violence order from being or remaining in the company of the protected person when consuming alcohol or being under the influence of alcohol. Therefore, he could not be in breach of the revoked police domestic violence order.

  • Carne v Wride; Carne v Nicholas [2012] NTSC 33 (15 May 2012) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Cumulative sentences’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Breach of domestic violence order, aggravated assault

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim were in an ‘on again off again’ relationship for approximately 18 years and had four children together. One evening the appellant went to the victim’s house where all four children were residing. The appellant threw the television over the balcony and forcibly took a ring off the victim’s finger. The appellant was charged with aggravated assault and a domestic violence order was made restraining him from contacting, approaching, intimidating or harassing the victim and exposing the children to domestic violence. Nine days later the appellant phoned the victim and visited her at the house. When she refused to let him in, the appellant unsuccessfully attempted to hang himself from the veranda. This was witnessed by his 14 year old son. In relation to this conduct the appellant was charged and pleaded guilty to breaching the domestic violence order.

    The two charges were sentenced together. After stating the need for general and specific deterrence in the circumstances, the magistrate sentenced the appellant to eight months’ imprisonment for breaching the domestic violence order and two months’ imprisonment for the aggravated assault. The sentences were to be served cumulatively, suspended after six months on conditions including supervision, counselling and abstinence from alcohol and drugs.

    Issues: Some of the grounds of appeal included:

    • Whether the magistrate had regard to irrelevant facts and circumstances in accepting the attempted suicide was within the definition of domestic violence;
    • Whether the magistrate erred in cumulating the sentences; and
    • Whether the sentences imposed were manifestly excessive.

    Decision and reasoning: The appeal was allowed on grounds 1 and 3. The appellant was resentenced.

    • Under s 5 Domestic and Family Violence Act 2007 (NT) domestic violence includes causing harm and intimidation. Further, s 6 defines intimidation to include any conduct that has the effect of unreasonably controlling or causing mental harm. It is probable that the appellant’s son suffered psychological harm as a result of witnessing his father attempting to hang himself and having to cut him down. However, no evidence was adduced to establish mental harm was actually suffered. In the absence of such evidence, Kelly J found it was not open to the magistrate to be satisfied beyond reasonable doubt that the attempted suicide was conduct that caused mental harm to the son in order to amount to domestic violence under s 6(1)(c). It was also not open to the magistrate to conclude the appellant attempted to cause mental harm under s 5(f). There was insufficient evidence to prove beyond reasonable doubt the attempted suicide was aimed at the victim and her children.
    • As a general rule, cumulative penalties should not be imposed when a number of offences arise from substantially the same conduct or a series of occurrences. The appellant’s two offences of aggravated assault and breach of the domestic violence orders did not arise out of such a closely related series of events. Rather, the conduct constituting the separate offences occurred on different days and were totally different acts. Therefore, the magistrate did not err in ordering the sentences to be served cumulatively rather than concurrently.
    • As ground 1 of the appeal was successful, the only actions by the appellant that constituted the breach of the domestic violence order were the conduct of phoning the victim and visiting her home. In these circumstances, the sentence of eight months’ imprisonment was manifestly excessive. Kelly J set aside the sentence and imposed a sentence of imprisonment for one month for the breach of the domestic violence order. The sentence was to be served cumulatively on the aggravated assault sentence, suspended after one month.
  • Idai v Malogorski [2011] NTSC 102 (14 December 2011) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Concurrent sentences’ – ‘Drugs’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order (two counts), aggravated assault (two counts), administration of a dangerous drug (cannabis)

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim had been in a relationship for three to four years. After self-administering cannabis one afternoon (count 2), the appellant became abusive and called the victim a slut (count 4). Early the next morning the victim locked herself in the bathroom to get away from the appellant. In response, the appellant banged and kicked the door, demanding the victim come out (count 5). When she did the appellant threw the contents of a bong and a flour tin over her (count 1). Later that day the appellant shouted at the victim, grabbed her chin and squeezed her cheeks to force her to face him (count 3). In relation to this conduct, the appellant was charged and convicted of two counts of contravening a domestic violence order (counts 4 and 5), two counts of aggravated male-on-female assault (counts 1 and 3) and one count of administering a dangerous drug (count 2). The effective head sentence imposed by the magistrate was 15 months’ imprisonment with a non-parole period of 10 months. This head sentence comprised of:

    • Count 4: five months’ imprisonment
    • Count 5: five months’ imprisonment cumulative on the sentence imposed on count 4
    • Count 1: five months’ imprisonment cumulative on the sentence imposed on count 5
    • Count 3: five months’ imprisonment concurrent with the sentence imposed on count 1
    • Count 2: $200 fine

    Issues:

    • Whether the magistrate erred in the application of the totality principle.
    • Whether the sentence imposed was manifestly excessive in relation to counts 4 and 5.

    Decision and reasoning: The appeal was allowed on ground 2 and the appellant was resentenced.

    • The conduct that constituted the breaches of the domestic violence order (counts 4 and 5) occurred very closely together in time. They could be seen as facets of the one course of conduct leading up to the aggravated assaults that occurred later that day (counts 1 and 3). Therefore, the sentences imposed for counts 4 and 5 would ordinarily have been made concurrent or substantially so under the general principle of totality. However, in a process of statutory interpretation, Barr J found s 121(7) of the Domestic and Family Violence Act 2007 (NT) requires the court to order the term of imprisonment for a domestic violence order offence to be served cumulatively on any other sentence. Therefore, the magistrate did not err in ordering that the sentences on both the domestic violence order offences (counts 4 and 5) had to be cumulative on one another and on the sentences on the aggravated assault offences (counts 1 and 3).
    • The magistrate allowed a discount of 25 per cent for the appellant’s guilty pleas, suggesting a point for each offence of approximately seven months imprisonment. Considering the offending was at the lower end of the scale, the individual sentences were manifestly excessive. Barr J found an appropriate starting point for each domestic violence offence (counts 4 and 5) was a sentence of four months, reduced to three months allowing for a 25 per cent discount for the guilty pleas. Each domestic violence order sentence (counts 4 and 5) should further be reduced to two months’ imprisonment, applying the principle of totality. Barr J ordered the appellant be resentenced on counts 4 and 5 to:
    • Count 4: two months’ imprisonment
    • Count 5: two months’ imprisonment cumulative on the sentence imposed on count 4

    The effective head sentence for all counts was therefore nine months’ imprisonment.

  • Malogorski v Peart [2011] NTSC 86 (21 October 2011) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘External orders’ – ‘Registration of interstate domestic violence order’ – ‘Statutory interpretation

    Charge: Breach of domestic violence order

    Proceeding: Question of law under s 96 Domestic and Family Violence Act 2007 (NT)

    Facts: The defendant was the subject of an interim violence restraining order made under the Restraining Orders Act 1997 (WA) (the WA Act). The interim order was registered as an external order in the Northern Territory pursuant to the procedures in Chapter 3 of the Domestic and Family Violence Act 2007 (NT) (the NT Act). Subsequently the interim order was made into a final order in Western Australia, however this was never registered in the Northern Territory. The defendant came into contact with the protected person in the Northern Territory, in breach of the external order. At trial, it was argued that there was no case to answer because the interim order made in Western Australia had ceased to be in force once the final order was made. Therefore, the interim order was also no longer registered in the Northern Territory as an external order under s 96 and could not be enforced.

    Issue: Whether an interim order under the WA Act continues to be ‘in force’ within the meaning of s 96 of the NT Act after the interim order is made final.

    Decision and reasoning: Kelly J answered the question in the negative.

    Under the WA Act, an interim order remains in force until one of the specified events in s 16(4) occurs, including when a final order comes into force. Section 96 of the NT Act provides that an external order is registered ‘for the period during which it is in force’. Therefore, on the date of the alleged offence the interim order was not ‘in force’ in WA; accordingly, there was no external order enforceable under the NT Act.

  • Bonney v Thompson [2011] NTSC 81 (7 October 2011) – Supreme Court of the Northern Territory
    Emotional and psychological abuse’ – ‘Exposing children’ – ‘Extension of domestic violence order’ – ‘History of abuse

    Appeal type: Appeal against refusal to extend domestic violence order

    Facts: The respondent, the appellant’s ex-partner, was the subject of a non-contact domestic violence order. The order was initially to be in force for 12 months, but the appellant applied for the order to be extended for a further two years. This application was dismissed. In deciding whether to grant the extension, the magistrate refused to consider the past history of domestic violence. The magistrate did not consider that a history of domestic violence is sufficient for the court to continue an order.

    The magistrate also refused to have regard to events that occurred after the making of the original order. The appellant alleged the respondent had approached her daughter, asked for money and threatened to hit her. The magistrate concluded this threat was not relevant because it related to ‘a different adult, not in the company of the complainant, not living with the complainant’ ([22]). The respondent also told his and the appellant’s children to tell the appellant that it was dangerous staying in town, and that she was ‘looking for trouble by living in town’.

    Issue: Some of the grounds of appeal included whether the magistrate erred in:

    • Finding that previous evidence of violence is insufficient to extend an order; and
    • Failing to have regard to statement made to the appellant’s family members in considering the reasonable fear of the appellant.

    Decision and reasoning: The appeal was allowed and the domestic violence order was extended.

    • The magistrate erred in failing to consider the history of domestic violence that led to making the original domestic violence order. In failing to do so, the magistrate made an error of law in failing to take into account relevant facts as required by s 53 and s 19(2)(d) of the Domestic and Family Violence Act 2007 (NT). The question is whether the court is satisfied that there are reasonable grounds for the protected person to fear domestic violence. This question may be satisfied based solely on past conduct of domestic violence: ‘To hold that an application to extend a DVO could never be granted solely on evidence of past domestic violence occurring before the date of the original order, would be tantamount to saying that a DVO can never be extended unless it has been breached.’ ([19)].
    • The magistrate also erred in failing to take into account the evidence of threats made by the respondent to the appellant’s daughter and their children. The threat to the appellant’s daughter was relevant to show the defendant had not reformed and was still prone to threats of violence. Further, the remarks to the children taken in context with the past history of domestic violence support that the appellant had reasonable grounds to fear the commission of domestic violence against her.
  • Parnell v Verity [2011] NTSC 47 (24 June 2011) – Supreme Court of the Northern Territory
    Assaulting police’ – ‘Resisting arrest

    Charge: Resisting arrest, Assaulting police in the execution of duty

    Appeal type: Appeal against conviction

    Facts: After speaking with the victim, two police officers decided there were grounds to order a police domestic violence order against the appellant. When driving to the station, they saw the appellant outside his mother’s house. After failed attempts to communicate with the appellant, one of the police officers drew his taser, but did not point it at the appellant. After the appellant was notified of his arrest for the purposes of making a domestic violence order against him, he was handcuffed. He then became aggressive, screaming to his mother for help and alleging the police were assaulting him. The appellant attempted to kick one of the police officers. As a result, the officer put his foot on the appellant’s leg. The appellant screamed out in pain and his family started to approach the officers aggressively. One officer again drew his taser and pointed it at the family and the other officer took out his pepper spray. The appellant then kicked one officer in the shin, who then pepper sprayed the appellant.

    In relation to this conduct, the appellant was convicted of resisting arrest and unlawfully assaulting a police officer in the execution of his duty with the circumstance of aggravation that the police officer suffered harm.

    Issues:

    • Whether the magistrate’s findings of guilt were unsafe and unsatisfactory;
    • Whether the magistrate made findings of fact that were not reasonably open on the evidence; and
    • Whether the magistrate erred in the interpretation of s 84(1) of the Domestic and Family Violence Act (2007) NT.

    Decision and reasoning: The appeal was allowed and the appellant was acquitted of both charges. In order for the police to remove and detain a person under s 84 of the Act there must be a reasonable belief that there are grounds for making a domestic violence order and it is necessary to remove the person to prevent an imminent risk of harm to another. There was no evidence before the magistrate of ‘domestic violence’ defined by s 5 of the Act. Therefore, the magistrate erred in finding the police officers had a reasonable belief that grounds existed for making a domestic violence order against the appellant. Further, there was no evidence that the appellant was likely to harm anyone as required by s 84(1)(a)(ii) of the Act. Therefore, the police officers did not have the power to arrest the appellant in order to impose the domestic violence order. The arrest was unlawful and the appellant was justified in resisting arrest and acted in self-defence when kicking the police officer.

  • Semkin v Verity [2011] NTSC 12 (15 February 2011) – Supreme Court of the Northern Territory
    Appeal against sentence’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order to protect his former partner (the victim). While serving a sentence of imprisonment for previous offences committed against the victim, the appellant breached the domestic violence order by sending the victim a letter. The content of the letter included apologising for his actions and for harming the victim. When asked why he sent the letter, the appellant replied ‘Broken heart, saying sorry and all that’ and that he was not aware it was a contravention of the domestic violence order. The appellant was convicted and sentenced to three months’ imprisonment to commence at the end of his prior sentence.

    The full no-contact domestic violence order was initially ordered after the appellant entered the victim’s house, removed all her clothes and burned them in the garden while she was not home. Following this, the appellant breached the order by texting the victim 17 times. The messages included threatening the victim, threatening self-harm and declaring his ‘undying love’. As a result of this conduct, the appellant was fined $750 and placed on a good behaviour bond. Sometime after recommencing their relationship, the appellant went to the victim’s workplace with two knives and a hammer and subsequently chased, punched and kicked the victim and threatened to kill her. The appellant was charged and convicted of aggravated assault, for which he was serving a term of imprisonment at the time of the current offending.

    Issues:

    • Whether the sentence was manifestly excessive.
    • Whether the magistrate erred in applying the principle of totality.

    Decision and reasoning: The appeal was dismissed.

    • Riley CJ rejected the argument that the appellant’s moral culpability was reduced because he claimed to be unaware that sending the letter was a breach of the domestic violence order. He had repeatedly breached the domestic violence order, on one occasion for sending text messages to the victim. Therefore, he should have known the conditions of the order and that sending a letter constituted a breach of it. The fact that his offending occurred while in custody for another offence against the victim was an aggravating factor. While the appellant had made efforts to rehabilitate whilst in prison, the need for personal deterrence was still a significant factor in sentencing considering his history of offending. When considering these circumstances as a whole, the sentence imposed was not manifestly excessive.
    • The magistrate did not err in applying the principle of totality. The current offending was not part of a course of offending. Sending the letter in breach of the domestic violence order was a separate incident to the aggravated assault that the appellant was in custody for. Therefore, the current offending required a separate sentence and the magistrate did not err in ordering the sentence to be served cumulatively.
  • Atkinson v Eaton [2010] NTSC 72 (17 December 2010) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Breach of good behaviour bond’ – ‘Deterrence’ – ‘Manifestly excessive’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order, breach of good behaviour bond, resisting arrest

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim were in a de facto relationship and resided together with their child and two children from the victim’s previous relationships. The appellant was the subject of a good behaviour bond with a condition that he not approach the victim when consuming or under the influence of alcohol. He was also the subject of a domestic violence order that restrained the appellant from approaching, contacting or remaining in the company of the victim or her three children (the protected persons) when consuming or under the influence of alcohol or another intoxicating drug or substance.

    On the day of offending, the appellant consumed alcohol whilst in the presence of all four of the protected persons. The appellant resisted arrest and attempted to escape custody. After he was arrested the police determined his blood alcohol level was 0.172 per cent. When asked his reasons for breaching the domestic violence order, the appellant replied ‘it was her choice’. In relation to this conduct the appellant was charged, pleaded guilty and convicted of one count of breaching the good behaviour bond, one count of breaching the domestic violence order and one count of resisting arrest. The magistrate sentenced the appellant to 21 days’ imprisonment, 21 days’ imprisonment and seven days’ imprisonment, respectively. All sentences were ordered to be served concurrently, with the total effective sentence of 21 days’ imprisonment.

    The appellant had previously breached the good behaviour bond and received a warning. He had also been convicted of breaching the domestic violence order, assault and aggravated assault.

    Issue: Whether the sentences imposed were manifestly excessive in all the circumstances.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    The magistrate erred in imposing a term of imprisonment for the breach of the good behaviour bond. Although there had been two breaches of the bond, Blokland J held that without knowing additional information on the initial breach that received a warning, imprisonment could not be justified for the breach in question. The sentence of 21 days’ imprisonment was therefore manifestly excessive and ordered to be set aside.

    The magistrate also erred in imposing a term of 21 days’ imprisonment for the breach of the domestic violence order. Blokland J recognised that this was the appellant’s second breach of the domestic violence order. However, although the protected persons were placed in fear, no harm resulted from the breach. Therefore, the sentence was manifestly excessive.

    The appellant was re-sentenced to seven days’ imprisonment for the breach of the domestic violence order and seven days’ imprisonment for resisting arrest to be served concurrently. When considering the circumstances of the offence, a short term of imprisonment was justified under s 121 Domestic and Family Violence Act 2007 (NT). Blokland J emphasised the appellant’s blood alcohol reading was significant and whilst he pleaded guilty, it was not an immediate plea ([25]). Blokland J refused to suspend the sentence when considering the appellant’s history of offending and the need for personal deterrence. No further sentence was imposed for breach of the good behaviour bond, as the breach occurred out of the same conduct as the breach of domestic violence order.

  • Walker v Verity [2010] NTSC 68 (7 December 2010) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Multiple breach charges’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Threat to kill’ – ‘Victim’ – ‘Victim impact statement

    Charges: Breach of domestic violence order (6 counts), threatening to kill with intent to cause fear, resisting arrest, unlawfully assault of a police officer in the execution of duty, behaving in a disorderly manner, unlawfully possessing cannabis

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order in force to protect his daughter (the victim). The order restricted the appellant, among other conditions, from approaching, contacting or remaining in the company of the victim or at any place where the victim resided, worked or stayed while consuming or under the influence of alcohol or another intoxicating drug or substance. After consuming alcohol one day, the appellant sent a text to the victim (charge 1). He then resent this message four times before going to the victim’s home (charge 2). The victim was not home, but the appellant waited several hours for her to return (charge 3). After the victim left her home, the appellant rang the victim and swore at her (charge 4). The appellant eventually left the victim’s home after being asked several times only to return several hours later. The appellant then scratched the victim’s face (charge 5) and said ‘I love you, but I want to kill you’ (charge 6). He subsequently called her again and blamed the victim for his arrest (charge 8). Charge 7 was not referred to or specified.

    In relation to this conduct the appellant was charged and convicted of (inter alia) 6 counts of breaching a domestic violence order (charges 1-5, 8) and threatening to kill with intent to cause fear (charge 6), resisting arrest, unlawfully assaulting a police officer in the execution of duty, behaving in a disorderly manner, and unlawfully possessing cannabis. The appellant was sentenced on charges 1 to 4, to a fine of $1000; on charges 5 and 8, to 12 weeks’ imprisonment; and on charge 6, to 12 weeks’ imprisonment, each to be served concurrently with the aggregate sentence on charges 5 and 8.

    In the victim impact statement, the victim explained the physical and emotional injuries she suffered as a result of her father’s domestic violence ([27]). However, the victim expressed her wish that the appellant be ordered into rehabilitation rather than sentenced to imprisonment. The magistrate did not mention this wish of the victim in his sentencing remarks.

    Issues:

    • Whether the magistrate erred in failing to take into account the victim’s wishes as expressed in the victim impact statement; and
    • Whether the sentences imposed for charges 5, 6 and 8 were manifestly excessive.

    Decision and reasoning: The appeal was dismissed.

    • The magistrate did not err by merely failing to expressly refer to the victim impact statement. The magistrate was informed that the appellant had previously unsuccessfully attempted rehabilitation in the only two rehabilitation programs available to non-Indigenous males in the Northern Territory. Further, the victim’s wishes for the appellant not to be imprisoned should not have carried great weight when considering the aggravating factor of the appellant’s extensive offending history, and the need for specific and general deterrence. Barr J concluded that in domestic violence cases, the importance of general deterrence likely overrides any forgiveness on the part of the victim ([40-41]).
    • The effective sentence of 12 weeks’ imprisonment for charges 5, 6 and 8 was not manifestly excessive in the circumstances. The magistrate was entitled to regard charges 5, 6 and 8 as serious. Further, the magistrate gave due consideration to the appellant’s previous history of offending, including a previous threat to kill, offences of physical violence, and numerous breaches of domestic violence orders. The appellant established no error by the magistrate in sentencing, nor that theeffective sentence was manifestly excessive. Therefore, both grounds failed and the appeal was dismissed.
  • AB v Northern Territory of Australia [2010] NTSC 8 (18 March 2010) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Compensation to victim’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Unlawfully causing serious harm

    Charges: Aggravated assault, unlawfully causing serious harm, rape

    Appeal type: Appeal against amount of compensation ordered for victim

    Facts: The appellant and the offender were living together in a domestic relationship. On the first occasion, the offender assaulted the appellant with a curtain rod, causing severe lacerations to her head, arms and body, substantial blood loss, broken teeth, and swelling and bruising to her face and lower back. In relation to this conduct, the offender was charged with aggravated assault. The appellant was again assaulted by the offender several weeks later, resulting in a fractured clavicle. The pattern of assaults continued when approximately three months later the offender followed the victim home, dragged her outside, bashed her with a stick and fists, verbally abused her and raped her twice. As a result, the victim suffered extensive injuries to her face and scalp, a fractured jaw and bruises all over her body. The offender was found guilty of unlawfully causing serious harm to the victim and two counts of sexual intercourse without consent.

    The victim made an application for compensation under the Victims of Crime Assistance Act 2006 (NT) (the Act) and was awarded $35,000 for the compensable violent act, as determined by an assessor. She subsequently appealed to the Local Court on the basis that the compensation awarded was inadequate when considering the injuries suffered. It was argued that the respondent erred in considering the three incidents constituted a single violent act and in failing to assess her psychological injuries. Alternatively, it was argued that the respondent erred in determining the award quantum under Schedule 3, Part 1(c) of the Act.

    Issue: Several questions of law were reserved for the Supreme Court including:

    • Were the criminal acts committed against the appellant on the three separate days a single violent act for the purposes of s 5 of the Act?
    • Does s 25 of the Act prevent the appellant from obtaining an assessment for psychological injury?

    Decision and reasoning: Kelly J first detailed the operation of the Act and its application to victims of domestic violence ([9]-[44]).

    • Kelly J answered this question in the negative. Section 5(4) of the Act provides that a series of related criminal acts constitutes a single violent act. Whether the three assaults constituted a series of related criminal acts depended on whether they could be said to ‘occur over a period of time’ under s 5(3)(b(ii). For this to be the case, the criminal acts must have been continuing in the sense of forming a single episode of offending. The assaults committed by Mr Barnes occurred months apart and each resulted in separate injuries. Therefore, the three sets of criminal acts were not committed ‘over a period of time’ within the meaning of s 5(3)(b)(ii).
    • Nothing in s 25 prevents the appellant from obtaining compensation for psychological or psychiatric injury suffered as a result of the assaults. The first two assaults are not ‘compensable violent acts’ within the Act however the appellant is entitled to claim an award for the ‘compensable injuries’ suffered as a result of those acts. As these offences are not included in Schedule 2 to the Regulations, she could only include a psychological or psychiatric injury as one of the three compensable injuries under Regulation 18 Victims of Crime Assistance Regulations (NT) if the recognisable psychological or psychiatric disorder was severely disabling (Reg 15(2)). The third incident involving raping the appellant is a compensable violent act and therefore she could apply for an award for the assault per se (s 10(4)(a)(i)) or an award for compensable injuries suffered as a result of the violent act. The appellant chose to do the latter, and therefore the assessor was obliged to take into account all of her injuries including any psychological or psychiatric disorders that resulted from the attack as part of the common law assessment of damages.
  • Midjumbani v Moore [2009] NTSC 27 (26 June 2009) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Gender of offender’ – ‘Manifestly excessive’ – ‘Sentencing

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order that restrained her from contacting or approaching her former partner (the victim) directly or indirectly while intoxicated, among other restrictions. On the day of offending, the appellant went to the victim’s home while intoxicated, verbally abused him and threatened to arrange for the victim to be harmed and killed. Approximately two hours later, the appellant returned and threatened that her family would kill the victim. She then picked up a large rock causing the victim to retreat back inside his home. In relation to this conduct the appellant was charged, pleaded guilty and convicted of two counts of breaching a domestic violence order. She was sentenced to seven days’ imprisonment on each charge, to be served concurrently.

    The appellant had previously been convicted of breaching a domestic violence order, possession of cannabis, and two offences involving being armed with an offensive weapon. In support of the appellant, it was submitted she occasionally cared for the victim who was suffering from cancer, she entered an early plea of guilty and she had shown remorse.

    Issues: The grounds of appeal were:

    • The magistrate erred in interpreting s 121(3) of the Domestic and Family Violence Act 2007 (NT) and failed to consider whether ‘particular circumstances’ existed under s 121(3)(b);
    • The sentence was manifestly excessive; and
    • The magistrate failed to properly consider the gender of the appellant.

    Decision and reasoning: The appeal was dismissed.

    • Section 121 of the Act must be read altogether. Subject to s 121(3), a court must record a conviction and sentence a person to at least seven days’ imprisonment if that person has previously been found guilty of breaching a domestic violence order. This mandatory minimum sentence will always apply unless no harm has been caused to the victim: s 121(3)(a). If harm is not caused, the court must consider the particular circumstances of the offence to determine if it is appropriate to record a conviction and sentence the person to at least seven days’ imprisonment: s 121(3)(b). The magistrate did not err in its interpretation or application of this provision.
    • The magistrate did not err in sentencing the appellant in accordance with s 121 of the Act. However, Riley J noted that even if he did find error he would not have interfered with the sentence imposed. The sentence of seven days to be served concurrently for each breach of the domestic violence order was appropriate. The appellant failed to establish that the magistrate erred in sentencing or that the sentences imposed were manifestly excessive.
    • The appellant submitted that the magistrate failed to properly consider her gender as a female. Riley J did not accept that the gender of the offender is a relevant matter that should have been taken into consideration by the magistrate.
  • Norris v Sanderson [2007] NTSC 1 (12 January 2007) – Supreme Court of the Northern Territory
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle in relation to sentencing.
    Breach of domestic violence order’ – ‘Emotional abuse’ – ‘Manifestly excessive’ – ‘Offending while on bail’ – ‘Sentencing’ – ‘Unlawful damage

    Charges: Unlawful damage, breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order to protect his girlfriend (the victim) made under the repealed Domestic Violence Act 1992 (NT). He had a history of repeatedly breaching domestic violence orders both in relation to the victim and a previous girlfriend. The offending subject to the appeal was constituted by a series of events. On the first occasion the appellant went to visit the victim. In an attempt to prevent him from entering, the victim locked the door. As a result, the appellant punched the front window causing it to shatter and kicked the security door (count 1). A few days later the appellant telephoned the victim and then approached her at a nightclub (counts 2 and 3). He was subsequently arrested and granted bail. While on bail he again breached the domestic violence order by driving with the victim (count 4). He was arrested and remanded in custody only to be released on bail again. One month later he drove to the victim’s house, entered her front yard and yelled and swore at the victim (count 5). In relation to this conduct, the appellant was charged and convicted of one count of unlawful damage (count 1) and four counts of breaching a domestic violence order (counts 2-5). The effective sentence imposed by the magistrate was 140 days’ imprisonment, of which 70 days’ were suspended upon conditions providing for supervision. This comprised of:

    • Count 1: 60 days’ imprisonment
    • Counts 2 and 3: 30 days’ imprisonment, 20 days to be concurrent on the sentenced imposed on count 1
    • Count 4: 30 days’ imprisonment cumulative upon counts 1-3, wholly suspended on commencement
    • Count 5: 40 days’ imprisonment cumulative upon counts 1-3, wholly suspended on commencement

    Issue: Whether the sentence was manifestly excessive.

    Decision and reasoning: The appeal was dismissed. The magistrate did not err in his considerations and the sentence imposed was open to him to make.

    The offending in relation to count 1 was made more serious when considering the surrounding circumstances of the offending. The appellant’s response to being locked out by the victim was an ‘immediate, frightening and explosive outburst of violence’ ([19]). While the appellant did not have any prior convictions for unlawful damage, he had several convictions for offences of violence and it was the violent nature of this conduct that made the offending so serious in the circumstances.

    In relation to the breaches of the domestic violence order, the submission that the magistrate placed too much weight on the appellant’s criminal history was rejected. The prior convictions provided context for the offending and highlighted the culpability of the appellant. The appellant’s counsel also submitted the appellant had good prospects of rehabilitating when considering, amongst other factors, his youth, willingness to undertake counselling, good employment record and the ongoing support of the victim. While the magistrate regarded the appellant’s chances of rehabilitation with caution, he nonetheless considered these relevant factors and did not err in doing so.

    The sentence was not manifestly excessive. The appellant had a total of 11 prior convictions for failing to comply with a domestic violence order and one prior conviction of aggravated assault. Despite this history, he continued to act in defiance of the orders with full awareness of the consequences. This conflicts with the objective that victims ‘have confidence that restraining orders made are backed by penalties that will be applied in the event of a breach’ ([33]). In the circumstances of this prior offending, a period of imprisonment was reasonable to deter the appellant and others from committing such offences.

  • Hales v Stevens [2000] NTSC 97 (14 December 2000) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Deterrence’ – ‘Intermediate sentence’ – ‘Manifestly inadequate’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Sentencing

    Charge: Aggravated assault

    Appeal type: Crown appeal against sentence

    Facts: The respondent and the victim had previously been in a relationship. After the relationship ended, the respondent visited the victim’s home where he punched her in the head 10 times, kicked her in the ribs and chest several times and pushed her head into the floor. After the victim temporarily escaped to another room, the respondent struck her again several times and subsequently attempted to strangle her, placing one hand around her throat and the other over her mouth and nose. The attack lasted for approximately 20 minutes and involved about 30 punches. At the time of the offending, the respondent was on bail. In relation to this conduct the respondent was convicted of aggravated assault under s 188(2)(b) Criminal Code 1983 (NT), with the circumstances of aggravation that the victim suffered harm, the assault was of male-on-female, and the victim was under the age of 16 years old.

    The magistrate, in taking a ‘rehabilitative course’ ([5]), sentenced the respondent to 12 months’ imprisonment suspended the day after imprisonment commenced for 3 years. The release of the respondent was subject to conditions including that he obey the directions of the Director of Correctional Services for 12 months, that he reside at the Council for Aboriginal Alcohol Program Services and complete the Indigenous Family Violence Program, that he then live with the Salvation Army in Darwin and complete the Bridge program, and that for a period of 12 months he supply urine or blood samples to be tested for drugs.

    Issue: Whether the sentence was manifestly inadequate.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    The circumstances of the offence were very serious and resulted in severe physical and psychological harm to the victim. This was further aggravated by the fact the offending occurred while the respondent was on bail in relation to another assault.

    The magistrate’s consideration of the respondent’s chances of rehabilitation and personal hardships was appropriate in the circumstances. The respondent had been attending alcohol and drug education programs and had enrolled in the Indigenous Family Violence Program. According to the magistrate, this was the first step along the road to rehabilitation.

    However, the magistrate did not expressly address the issue of deterrence that ought to have been afforded significant weight in sentencing. Despite the guilty plea, there was no indication of remorse with the respondent telling his psychologist he believed he ‘had a degree of legitimacy’ ([22]) for his actions. Therefore, Riley J considered there was a need for specific deterrence. In addition there was a need for general deterrence: ‘Men in the position of the respondent should be aware that if they resort to violence upon another… in all but the most exceptional case that will be met with a period of actual imprisonment ([24]).’ While the magistrate impliedly considered specific deterrence with rehabilitation, there was no consideration of general deterrence during sentencing. The magistrate’s main focus was to provide the respondent every opportunity to be rehabilitated. Riley J concluded that the magistrate erred in neglecting to consider the need for general deterrence and the respondent’s lack of remorse.

    The sentence of 12 months’ imprisonment was not in itself manifestly inadequate. However, it was manifestly inadequate to suspend the sentence from one day after commencing imprisonment. In the circumstance, a term of actual imprisonment was required. Riley J resentenced the respondent to 12 months’ imprisonment to be suspended after 3 months. The respondent’s release was subject to several conditions, including accepting supervision and obeying reasonable directions of the Director of Correctional Services as to reporting, residence, employment and counselling for a period of 12 months and completing the Bridge program with the Salvation Army.