Court of Appeal
SE v Masani [2024] NTCA 7 (3 December 2024) – Northern Territory Court of Appeal
‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Victim fear’ – ‘Children’ – ‘Young people’ – ‘Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Manifestly excessive’
Charges: Aggravated assault x1.
Case type: Application for an extension of time to appeal sentence.
Facts: The appellant SE (aged 16) and the complainant GM (aged 17) were in a relationship. While GM was walking with relatives, SE approached and assaulted her by punching her twice to the body. He then kicked her legs, causing her to fall. While GM was on the ground, SE continued the assault by forcibly kicking her another three times. He then struck GM over the head and body with a steel [dish] rack, causing her to fall again when she tried to get up. SE then threatened further assault if GM did not follow him. Fearful, GM complied and followed SE to the Council lawns. Here, she washed blood from her face before police arrived. GM suffered pain all over her body and a 1 cm laceration to the back of her head.
Procedural history: The Youth Justice Court sentenced SE to 15 months’ detention (fully suspended) for aggravated assault, with no conviction recorded. SE appealed the sentence to the Supreme Court, which dismissed the appeal. In this application, SE applied for an extension of time to appeal the sentence in the Court of Appeal.
Ground of appeal: The sole ground of appeal was that the primary judge erred by finding that the sentence imposed by the Youth Justice Court was not manifestly excessive in all of the circumstances. This ground was supported by four specific particulars of error.
Reasoning and decision: In this application, the Court of Appeal dismissed SE’s application for an extension of time to appeal the sentence, concluding that neither the particulars of error nor the substance of SE’s sole ground of appeal demonstrated a valid basis for further consideration.
Particular 1: The applicant argued that the primary judge erred in finding that his offending was "adult-like." The Court rejected this, noting the finding was made by the sentencing judge, not the primary judge and this finding was not challenged previously by the applicant. Additionally, the primary judge correctly reasoned that the offending was adult-like, as violence within a domestic relationship inherently carries adult responsibilities [30].
Particular 2: The applicant argued that the primary judge erred by considering the prevalence of domestic violence among adults, despite both he and the complainant being youths. The Court found this argument unmeritorious, noting it erroneously assumed that the primary judge was the sentencing judge, and had not been raised before the primary judge. SE’s lawyer had conceded during submissions that the prevalence of domestic violence in Alice Springs justified general deterrence, even in the Youth Court context. The sentencing judge had relied on this concession, highlighting that general deterrence was necessary to protect young female victims and deter similar conduct by young male offenders [33]-[39].
Particular 3: The applicant argued that the primary judge erred by finding there was "no practical difference" between different sentencing options. The Court rejected this argument, finding the primary judge did not state there was no difference, but rather clarified that the practical difference was how the sentence would appear on SE’s record [45].
Particular 4: The applicant argued that the primary judge misapplied youth sentencing principles, suggesting they were less relevant when the sentence was fully suspended. However, the Court found this argument unmeritorious, noting that the primary judge correctly applied these principles [54].
Ground 1: The Court noted that an appeal for manifestly excessive sentences requires showing that the sentence was ‘clearly and obviously’ excessive, not just arguably so. Sentencing judges are allowed flexibility in applying consistent principles, and an appellate court should not substitute its judgment merely because it would have decided differently. The Court found no error in the primary judge’s decision, concluding that the sentence appropriately reflected the seriousness of the offence and the importance of rehabilitation. As a result, the Court found the sentence was not manifestly excessive and upheld the dismissal of the appeal [59-60].
Olsen v Sims [2010] NTCA 8 (30 November 2010) – Northern Territory Court of Appeal
‘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).
Court of Appeal
SE v Masani [2024] NTCA 7 (3 December 2024) – Northern Territory Court of Appeal
‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Victim fear’ – ‘Children’ – ‘Young people’ – ‘Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Manifestly excessive’
Charges: Aggravated assault x1.
Case type: Application for an extension of time to appeal sentence.
Facts: The appellant SE (aged 16) and the complainant GM (aged 17) were in a relationship. While GM was walking with relatives, SE approached and assaulted her by punching her twice to the body. He then kicked her legs, causing her to fall. While GM was on the ground, SE continued the assault by forcibly kicking her another three times. He then struck GM over the head and body with a steel [dish] rack, causing her to fall again when she tried to get up. SE then threatened further assault if GM did not follow him. Fearful, GM complied and followed SE to the Council lawns. Here, she washed blood from her face before police arrived. GM suffered pain all over her body and a 1 cm laceration to the back of her head.
Procedural history: The Youth Justice Court sentenced SE to 15 months’ detention (fully suspended) for aggravated assault, with no conviction recorded. SE appealed the sentence to the Supreme Court, which dismissed the appeal. In this application, SE applied for an extension of time to appeal the sentence in the Court of Appeal.
Ground of appeal: The sole ground of appeal was that the primary judge erred by finding that the sentence imposed by the Youth Justice Court was not manifestly excessive in all of the circumstances. This ground was supported by four specific particulars of error.
Reasoning and decision: In this application, the Court of Appeal dismissed SE’s application for an extension of time to appeal the sentence, concluding that neither the particulars of error nor the substance of SE’s sole ground of appeal demonstrated a valid basis for further consideration.
Particular 1: The applicant argued that the primary judge erred in finding that his offending was "adult-like." The Court rejected this, noting the finding was made by the sentencing judge, not the primary judge and this finding was not challenged previously by the applicant. Additionally, the primary judge correctly reasoned that the offending was adult-like, as violence within a domestic relationship inherently carries adult responsibilities [30].
Particular 2: The applicant argued that the primary judge erred by considering the prevalence of domestic violence among adults, despite both he and the complainant being youths. The Court found this argument unmeritorious, noting it erroneously assumed that the primary judge was the sentencing judge, and had not been raised before the primary judge. SE’s lawyer had conceded during submissions that the prevalence of domestic violence in Alice Springs justified general deterrence, even in the Youth Court context. The sentencing judge had relied on this concession, highlighting that general deterrence was necessary to protect young female victims and deter similar conduct by young male offenders [33]-[39].
Particular 3: The applicant argued that the primary judge erred by finding there was "no practical difference" between different sentencing options. The Court rejected this argument, finding the primary judge did not state there was no difference, but rather clarified that the practical difference was how the sentence would appear on SE’s record [45].
Particular 4: The applicant argued that the primary judge misapplied youth sentencing principles, suggesting they were less relevant when the sentence was fully suspended. However, the Court found this argument unmeritorious, noting that the primary judge correctly applied these principles [54].
Ground 1: The Court noted that an appeal for manifestly excessive sentences requires showing that the sentence was ‘clearly and obviously’ excessive, not just arguably so. Sentencing judges are allowed flexibility in applying consistent principles, and an appellate court should not substitute its judgment merely because it would have decided differently. The Court found no error in the primary judge’s decision, concluding that the sentence appropriately reflected the seriousness of the offence and the importance of rehabilitation. As a result, the Court found the sentence was not manifestly excessive and upheld the dismissal of the appeal [59-60].
Olsen v Sims [2010] NTCA 8 (30 November 2010) – Northern Territory Court of Appeal
‘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).