AIJA Benchbook

Northern Territory

Supreme Court

The King v Kopp [2024] NTSC 22 (5 April 2024) – Northern Territory Supreme Court

‘Appeal against sentence’ - ‘Manifestly inadequate’ - ‘Arson and fire’ - ‘Physical violence and harm’ - ‘Vulnerable groups’ - ‘Pregnant people’ - ‘Tendency evidence’

Charges: Aggravated assault x 4; rape x 2; deprivation of liberty (over course of three days) x 1.

Proceedings: Application to adduce tendency evidence.

Facts: The male accused and female complainant had been in ‘an intermittent and dysfunctional relationship since 2015’. [2] Both were recreational users of illicit substances. The accused is alleged to have sexually and physically assaulted the complainant, slapping, strangling and raping her on multiple occasions. [3]–[4] The offending culminated in the accused forcing the complainant into his car and detaining her as he travelled to various locations. [6]

The Crown intends to adduce evidence of the visible injuries sustained by the complainant when she presented at the Emergency Department. [7] In response, the defendant filed notice of its intention to adduce evidence of previous incidents involving the complainant to establish that she has a tendency to act in a particular way/to adopt a particular state of mind, such that the injuries she sustained were ‘self-inflicted’. [1]

Decision and Reasoning: Application dismissed. The evidence is inadmissible for tendency purposes. [35] Chief Justice Grant held the evidence did not ‘sustain the inference of the tendencies asserted’, lacking the requisite significant probative value to be admissible as tendency evidence. [33]

For Grant CJ, the incidents constituting the charged offending did ‘not involve any necessary element of self-harm or suicidal ideation’. [24] In this capacity, the proposed tendency bore ‘very little’, if any, commonality with the nature of the injuries sustained by the complainant. Further, incidents wherein the complainant threatened or actually committed self-harm did not involve the complainant ‘seeking falsely to blame some other person for that harm’: [26]

The fact that the complainant experienced suicidal ideation on 27 December 2022 during the course of the incidents the subject of these charges also has nothing to say, either by itself or in combination with the other evidence identified for tendency purposes, about whether she has a general tendency either to engage in self-harming behaviour or to consider suicide [28]

The King v Hennessy [2023] NTSC 67 (1 August 2023) – Northern Territory Supreme Court

‘Tendency evidence’ - ‘Application to adduce tendency evidence’ - ‘Vulnerable group’ - ‘Multiple domestic partners’ - ‘Physical violence and harm’ - ‘Sexual and reproductive’ - ‘Rape’ - ‘Strangulation’

Charges: Rape x 4; aggravated assault x 3.

Proceedings: Application to adduce tendency evidence.

Facts: The male accused and female complainant were in a domestic relationship from 2013 to 2016. Throughout, the accused demonstrated ‘controlling and jealous’ behaviour toward the complainant which worsened with the birth of their first child. [4]–[5] The abuse transformed into physical and sexual violence, with the accused raping and strangling the complainant on numerous occasions. [7]–[12]

Following the breakdown of their relationship, the accused commenced a relationship with another woman (second complainant), towards who the accused was equally controlling, jealous and physically abusive. [13]–[8]

The Crown seeks to adduce evidence from both complainants to establish four tendencies; particularly, that the accused has a tendency to commit acts of physical and sexual violence against domestic partners. [20]

Decision and Reasoning: Application approved to prove tendency two and four. [21]

•

‘Suggested tendency two would allow the evidence to be used to show the accused “act[ed] in a particular way, namely, to commit acts of physical violence against females with whom the accused is in a relationship and with whom he resides, using physical strength and force”.’’ [22]

•

‘Suggested tendency four, seeks to show the accused acted in a particular way, namely, to have sexual intercourse with females with whom the accused is in a relationship and with whom he resides, despite the fact that the other person does not consent to the sexual activity’ [23]

Justice Blokland held the second and fourth tendencies readily possessed the requisite ‘significant probative value’ to be relevant and admissible: [30]

The evidence proposed in alleged tendencies two and four clearly fulfil this criteria. If an accused is shown to have a tendency to act in a very particular controlling or threatening or violent way as alleged in particular relationships, that is important evidence. The conduct forming the basis of the charges is denied. Here, the evidence is confined to two relationships. How the accused acted in one of those relationships is relevant circumstantially to how he acted, in accordance with the particulars in the Tendency Notice, in the other relationship [31]

Justice Blokland dismissed two other proposed tendencies, which rely ‘almost solely on proof of very charges from which the tendency is derived’. For example, ‘to commit acts of physical violence against [the first complainant]’. [38]

The establishment of the tendency cannot start from an assumption that unproven evidence as a whole gives rise to the tendency. This employs dangerously circular reasoning [40]

The Queen v Lyncha [2021] NTSC SCC22033629 (4 October 2021) (Sentence) – Northern Territory Supreme Court

‘Coercive control’ – ‘Domestic violence order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Financial abuse’ – ‘People living in regional, rural, and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charges: Sexual intercourse without consent x12; aggravated assault x3.

Proceedings: Sentencing.

Facts: The male offender was found guilty of 12 counts of sexual intercourse without consent and 3 counts of aggravated assault committed against his female partner between 2017 and 2018. The relationship between the offender and the victim began in 2005 but after the birth of their first child in 2010 the relationship deteriorated.

The offender was controlling, demanding and repeatedly used threats to coerce compliance with his demands for unwanted sex acts, including threats to use a firearm pointed at the victim and also a cattle prod (which was actually used to shock her on the stomach). The offender blamed the victim for the couple’s financial troubles and the victim was forced to not only work full time but also financially manage the offender’s business and earn additional money repairing and selling second-hand items as well as attend to all of the domestic duties.

The Victim Impact Statement described the offender’s physical, emotional, and financial control over her and her ongoing fear of the offender; she lives in a motor home so she can leave in a hurry if the offender is released from prison as she is scared the offender will seek revenge.

Decision and Reasoning: the offender was sentenced to 15 years imprisonment, with a fixed non-parole period of 12 years. The Domestic Violence Order was altered to forbid the offender from having any direct or indirect contact with the victim for 20 years.

Justice Mildren found there were no mitigating circumstances. His Honour considered the offender’s prior convictions for assaults against the victim and aggravated assault against his son. His Honour classified the offences as really serious, and a significant sentence of imprisonment was needed for both personal and general deterrence. He found the offender’s behaviour to be ‘callous, controlling and sadistic.’

The Queen v Lynch [2021] NTSC SCC22033629 (4 October 2021) (Sentence) – Northern Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Assault’ – ‘Coercive control’ – ‘Controlling and/or jealous behaviour’ – ‘Controlling, jealous, obsessive behaviours by the perpetrator’ – ‘Exposing children to domestic and family violence’ – ‘Following, harassing and monitoring’ – ‘Past domestic and family violence’ – ‘People living in regional, rural and remote communities’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Separation’ – ‘Stalking’ – ‘Unlawful deprivation of liberty’

Charges: 1x unlawful deprivation of liberty; 1x assault; 1x driving disqualified; 2x breaching a protection order.

Proceedings: Sentencing.

Facts: The victim was in a relationship with the offender which ended when the offender became controlling and jealous over the victim seeing her previous partner. She had a young daughter from a previous relationship and also had a child with the offender. A protection order was in place.

The offending occurred in Alice Springs. The offender, driven by his ex-wife, went to Tennant Creek where the victim was living. The offender asked the victim to go home with him with her children but she refused. He then asked her to go to the nearby petrol station to buy items for the children, which she agreed to, taking both her children, not taking any of her valuables or necessities. The offender again demanded that the victim come home with her and he refused. She suggested leaving the offender’s child with him and walking home with her daughter. The offender made threats.

The offender’s ex-wife began driving towards Alice Springs, away from the victim’s home. She asked to be taken home and the offender refused. The offender engaged the victim in a fight regarding her resuming her relationship with her ex-partner which culminated in the offender pushed the victim’s her head against the window and punching the victim in her ear while she was holding her son on her lap (aggravated assault).

Instead of driving to Alice Springs, the offender decided to have his ex-wife drive the victim and her two children to the outstation (where he was living) and the victim wanted to go home (deprivation of liberty). The charge ceased when the offender left the outstation in the morning.

Issues: Sentence

Decision and Reasoning: The overall sentence was 2 years, with a non-parole period of 12 months.

Aggravating factors included multiple prior convictions for breaches of protection order and aggravated assaults on a female, subject to current order. The fact the offender was not affected by alcohol at time of offending indicated possessive and controlling urges while sober.

The Queen v Lewis [2021] NTSC 40 (6 May 2021) – Northern Territory Supreme Court

‘Evidence’ – ‘History of domestic and family violence’ – ‘Jury directions’ – ‘Probative value’ – ‘Protection order’ – ‘Relationship, context, tendency and coincidence evidence’ – ‘Relevance’ – ‘Threats to kill’

Charges: Aggravated unlawful assault x 1; Recklessly engaging in conduct giving rise to danger of serious harm x 1.

Proceedings: Application to adduce evidence.

Facts: The male accused and female complainant were in a relationship. The Crown’s case was that the accused “flipped her” to the ground twice, threatened to kill her, and stamped his foot on her head, dragged, kicked and punched her. The Crown applied to adduce evidence of two prior charged assaults by the accused against the complainant (aggravated assault and contravention of a domestic violence order relating to her) as tendency or context (relationship) evidence.

Issues:

Whether the evidence ought to be adduced as tendency evidence.

Whether the evidence ought to be adduced as relationship evidence.

Decision and reasoning: Application to admit the evidence as tendency evidence was dismissed. Application to admit the evidence as relationship evidence was upheld.

Tendency evidence: The evidence did not have significant probative value. Additionally, on prejudice, the only other substantial evidence supporting the Crown’s case was to be given by the complainant. There was consequently a risk that the jury might place too much reliance on the fact that the accused had tendencies and acted on them. This potential prejudice was virtually impossible to address by a direction to the jury as the concept of “not giving too much weight” would be very difficult for the jury to comprehend and follow.

Relationship evidence: The evidence was relevant to a fact in issue in the proceeding. While the defence argued that evidence of two physical assaults against the complainant in their 2.5 year relationship was more appropriately characterised as “transient flare-ups of anger or annoyance” not ongoing hostility, the court disagreed stating: “Physical assaults are not part of the ordinary incidents of a domestic relationship, and the second of those assaults occurred in the same month as the alleged offending.”

Additionally, unlike the risk of unfair prejudice with the tendency evidence, the jury could be directed that they must not use the relationship evidence to engage in propensity or tendency reasoning, and that it was only tendered to ensure that they had a true and proper context to understand what the complainant said happened, rather than thinking what she said was unlikely because it happened “out of the blue”. This would obviate any risk of unfair prejudice.

Arnott v Blitner [2020] NTSC 63 (1 October 2020) – Northern Territory Supreme Court

‘Breach of bail conditions’ – ‘Contravention of protection order’ – ‘Misuse of alcohol or drugs by the perpetrator’ – ‘No harm caused to protected person’ – ‘Prosecution appeal against sentence’ – ‘Protection order’

Charges: Contravening a Domestic Violence Order (DVO) x 1; Breach of bail x 1.

Proceedings: Prosecution appeal against sentence.

Facts: The male respondent breached a DVO protecting his female partner by being heavily intoxicated in her company. There was no harm to the protected person. The respondent later breached bail by consuming alcohol. He pleaded guilty and was sentenced to 4 days imprisonment for breach of the DVO and 3 days imprisonment for the breach of bail, to be served cumulatively.

Grounds of appeal: In relation to the sentence for breaching the DVO –

The sentencing judge erred in applying s 121(2) and 121(3) of the Domestic and Family Violence Act 2007 (NT).

The learned sentencing judge erred in imposing a sentence which was manifestly inadequate in all the circumstances.

Held: Appeal dismissed.

Ground 1: There was no error in applying s 121(2) and (3) of the Act. The words “in the particular circumstances of the offence” do not set a standard which the circumstances must meet or impose an additional test. The legislative purpose of s 121(3) is to ameliorate potential injustice arising from mandatory sentencing. It maintains the court’s discretion not to impose the mandatory minimum in circumstances where the breach of a DVO does not result in harm to the protected person and where the court is satisfied it is not appropriate to record a conviction and sentence the person “in the particular circumstances of the offence” (meaning the specific, individual circumstances of the offence).

Ground 2: The sentence was not manifestly inadequate. The respondent’s breach of the DVO did not display the kind of aggravating features that would merit the term “contemptuous”. The conduct occurred 3½ months after the DVO was served in circumstances where the respondent believed the order was finished, no harm was caused to the protected person (despite police being called to respond to a disturbance), and the respondent’s 2 previous convictions for breaching DVOs were 4 years previously.

Carter v Firth [2020] NTSC 62 (16 September 2020) – Northern Territory Supreme Court

‘Appeal against sentence’ – ‘Assault’ – ‘Threat to kill’ – ‘Weapon’

Charges: Using a carriage service to make threat to kill x 1; Unlawfully entering a building with intent to commit assault x 1; Unlawful assault x 1; Threat to kill x 2; Aggravated assault x 1.

Proceedings: Appeal against sentence.

Facts: The male appellant and KC had been in a domestic relationship for 18 months. KC ended the relationship. The offending escalated over a 2-hour period and included threats to kill, physical violence and use of weapons. The appellant pleaded guilty and was sentenced to an overall effective sentence of 4 years imprisonment, suspended after 12 months.

Grounds of appeal: The overall sentence was manifestly excessive.

Held: Appeal dismissed. The sentences could not be said to be manifestly excessive. While the appellant had compelling subjective circumstances, “the subjective circumstances of an offender can never justify a sentence that does not adequately reflect the objective seriousness of the offences. In the present case, the objective circumstances reveal[ed] serious criminal offending, including significant violence utilising weapons, in the context of threats having been made by the appellant to kill his former domestic partner”: at [60].

The Queen v Anzac [2020] NTSC 58 (7 August 2020) – Northern Territory Supreme Court

‘Breach’ – ‘Misuse of alcohol or drugs by the perpetrator’ – ‘Prosecution appeal against sentence’ – ‘Protection order’

Charges: Breach domestic violence order (DVO) x 1.

Proceedings: Prosecution appeal against sentence.

Facts: The male respondent contravened a DVO protecting his female partner by being intoxicated in her presence. As the respondent had previous convictions for breaching DVOs, he was required to be sentenced under s 121(2) of the Domestic and Family Violence Act 2007 (NT) (“the Act”), unless the court was satisfied of the matters set out in s 121(3). The respondent was sentenced to a 6-month good behaviour bond on conditions.

Grounds of appeal:

The sentencing judge erred in applying ss 121(2) and (3) of the Act.

The sentencing judge failed to accord the complainant procedural fairness by not requesting submissions on proceeding without recording a conviction, where the sentencing judge had previously indicated he would impose a conviction.

The sentence was manifestly inadequate.

Held: Appeal allowed on ground 2 and the appellant re-sentenced to a 12-month good behaviour bond on conditions. Section 121(3) applied in this case. The offence did not result in harm being caused to the protected person, and, in the particular circumstances of the offence, it was not appropriate to record a conviction and impose a sentence of 7 days or more on the respondent under s 121(2) of the Act. The particular circumstances of the offence (which lowered the respondent’s moral culpability) included his deprived background, chronic misuse of alcohol (including early exposure, inability to control drinking in town, mutual misuse in the relationship, and lack of treatment). The respondent was also genuinely remorseful.

Hardy v Rigby [2020] NTSC 42 (10 July 2020) – Northern Territory Supreme Court

‘Appeal against sentence’ – ‘Exposing children to domestic and family violence’ – ‘Strangulation’

Charges: Aggravated unlawful assault x 1.

Proceedings: Appeal against sentence.

Facts: The male appellant pleaded guilty to unlawfully assaulting his wife. The offending involved threats to kill, squeezing his wife’s throat with both hands and dragging her by the throat, removing access to telephones, and exposing their child to the offending. The appellant was sentenced to a 12-month good behaviour bond and a conviction was recorded.

Grounds of appeal: The sentence was manifestly excessive because it included the recording of the conviction. Specifically –

Too much weight was given to “denunciation”.

Insufficient weight was given to evidence of positive good character including contrition and remorse.

The sentencing judge failed to take into account the views of the victim.

The sentencing judge erred by choosing to record a conviction.

Insufficient weight was given to evidence concerning the appellant’s mental health, and the sentence failed to include appropriate conditions to address his mental health.

The sentencing judge took into account the irrelevant consideration of prospective legislation increasing the penalty for assaults by strangulation.

Held: The appeal was dismissed. While the court acknowledged that the appellant did not have a prior criminal history of domestic violence offending and no evidence of prior incidents of domestic violence, the offending was still appropriately characterised as an instance of domestic violence: “It involved the use and threats of violence to control and dominate the appellant’s wife so she would ‘tell [him] the answer’” (at [50]). The offending was very serious including the fact that the appellant “grabbed SH by the throat and squeezed her throat was a significant factor in the sentencing calculus.” As per the Court in DPP v Foster [2019] TASCCA 15:

“Lest it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it has been noted in an article by Heather Douglas and Robin Fitzgerald entitled “Strangulation, Domestic Violence and the Legal Response”, published in the [2014] SydLawRw 11; (2014) 36 (2) Sydney Law Review 231, that strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome.

“[Strangulation] can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed.”

It was also significant that the appellant removed the victim’s access to telephones and outside help before strangling her, and that their child was exposed to domestic violence.

Williams v Firth & Anor [2020] NTSC 9 (24 February 2020) – Northern Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Breach of bail’ – ‘Children’ – ‘Exceptional circumstances’ – ‘Female perpetrator’ – ‘Physical violence and harm’

Charges: Aggravated assault x2; Breach of bail x1.

Appeal type: Appeal against sentence.

Grounds:

That the sentences imposed were manifestly excessive; and

That the learned sentencing Judge erred in finding that the circumstances of the case were not exceptional pursuant to s 78DI of the Sentencing Act.

Facts: The appellant woman, a 28 year old Wurrumiyanga woman and the male second victim of aggravated assault (Elton Limbiari) had been in a domestic relationship for three years and had two children together. Their relationship ended in 2015, and Limbiari later commenced a 2-week relationship with the first aggravated assault victim (Raggett). On the night of offending, the appellant went to Raggett’s property where she found both victims asleep on the veranda. She approached Raggett, grabbed her by the hair and dragged her down from the bed before punching her numerous times in the face, causing immediate pain and minor bruising. Limbiari was woken by the noise and, upon seeing Raggett being assaulted, tried to walk away but was stopped by the appellant punching him from behind. The punch caused minor swelling and bruising to his jaw.

The appellant was arrested and charged the next day. She pleaded guilty to both charges of aggravated assault and was sentenced to 3 months imprisonment for each count, to be served concurrently. While on bail to appear, the appellant did not appear and a warrant issued, thus breaching one of her bail conditions. The appellant also pleaded guilty to breach of bail and was convicted and sentenced to imprisonment for 1 month to be served cumulatively with the other sentences. The sentencing judge gave consideration to some matters put in mitigation on the appellant’s behalf, but very little consideration to the fact that she was the mother of four children.

Judgment:

The Appellant’s circumstances were truly exceptional when all relevant circumstances were considered, "including the relatively minor offending, the lack of any serious injuries to the victims, the fact that the appellant has apologised to both victims and the apologies have been accepted, her limited criminal history, the previous assault conviction was a long time ago and only resulted in a good behaviour bond, the extraordinary efforts she has made voluntarily to give up alcohol and attend family violence courses, the fact that she has left Tennant Creek with her children to start a new life away from influences which have got her into trouble in the past and the fact that she is a sole parent of four young children" [30]. His Honour rejected counsel for the respondent’s submission that "to establish one of the exceptions in R v Nagas, it is necessary to produce cogent evidence that imprisonment would effectively deprive the children of parental care", holding that "where the parent is a sole parent, particularly where the children are young and the appellant is the mother and sole carer of the children… different considerations arise. It is relevant that the children have someone close to them to look after them if the appellant is imprisoned, but a term of imprisonment which separates a mother from her young children can have a devastating effect on a child’s welfare and upbringing."[29]

His honour rejected the submissions that the sentence in relation to the breach of bail was manifestly excessive, finding that the offender’s "criminality was properly reflected in the sentences imposed" [31].

Queen v Pamkal [2019] NTSC 80 (15 October 2019) – Northern Territory Supreme Court

‘Evidence’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Sexual and reproductive violence’ – ‘Tendency purposes’

Proceedings: Voir dire on admissibility of evidence of past violent conduct by the accused against the complainant

Issues: Admissibility of tendency evidence; whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused

Facts: One of the facts in issue is whether the complainant consented to sexual intercourse with the accused. The complainant alleged that the accused demanded she have sex with him and threatened her when she refused. The complainant complied by removing her shorts and underwear and lying down on the cement.

The Crown intended to lead evidence of past violent conduct by the accused towards to complainant [2]. The accused would resort "to violence against the [complainant] whenever she displeased him…or he had a state of mind in which he believed he was permitted to discipline her for any perceived failing – and that he was prepared to and did act on that state of mind." [3]. The Defence counsel conceded that the "evidence of past assaults is relevant for this ‘relationship’ or ‘context’ purpose but contends that it should be excluded under Evidence (National Uniform Legislation) Act 2011 (NT) ('UEA') s 137 because its probative value is outweighed by the danger of unfair prejudice to the defendant.

Judgment:

The evidence was admitted both as relationship or context evidence and as tendency evidence and will not be excluded under UEA s 137.

The Judge disagreed with the Defence’s contention that the evidence of past violence by the accused against the complainant should be limited to mere references of past assaults without revealing any details. Kelly J provided that restricting the evidence in this way would conceal the nature of the relationship rather than explain why the complainant submitted in the way she did. His Honour also rejected the claim that the evidence should be excluded under the UAE s 137 as it had high probative value. Namely, it "explains something that may otherwise be inexplicable" [5]. While the risks of rank propensity reasoning and the jury being emotionally repelled by the accused were acknowledged, Justice Kelly believed that the probative value of the evidence outweighed them and thus admitted the evidence of prior assaults as relationship evidence.

Justice Kelly then turned to the Prosecution’s request to use the evidence of prior assaults as tendency evidence. The Prosecution sought to Sought to use the tendency evidence to demonstrate the accused’s tendency to engage in violent conduct against the complainant; to have a violent and controlling disposition towards his domestic partner; to believe that he is permitted to discipline his domestic partner for any of her perceived ‘failings’ [13]. Court noted that under UEA s 97, tendency evidence is not admissible unless ‘appropriate notice has been given and the court thinks that the evidence will…have significant probative value’ [14]. Applying the principles established in Hughes v The Queen, Kelly J concluded that the evidence of prior assaults satisfied the threshold test in UEA s 97, in that it supported "proof of a tendency to engage in violent behaviour, especially after consuming alcohol, for the purpose of controlling his partner’s behaviour and/or punishing her for perceived failings"[18] and "if the jury accepts that the accused had this tendency (or tendencies) that "strongly supports proof of a fact that makes up the offence charged"… It explains what might otherwise be inexplicable and strongly supports proof of a fact in issue – namely whether the complainant consented to have sex with the accused and also, to perhaps a slightly lesser extent, proof that he knew of or was reckless as to her lack of consent."[19]. His Honour also concluded that the evidence substantially outweighed any prejudicial effect (as required by s 101 UEA) as the risks were "largely mitigated" by appropriate directions and warning to the jury. The tendency evidence was therefore admitted.

Douglas v Dole & Ors [2019] NTSC 80 (15 October 2019) – Northern Territory Supreme Court

‘Breach of bail’ – ‘Children’ – ‘Damaging property’ – ‘Deterrence’ – ‘Evidence of domestic violence history’ – ‘Exceptional circumstances’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘Jealous behaviour’ – ‘Manifestly excessive’ – ‘Misuse of alcohol’ – ‘Past domestic violence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm sentence’ – ‘Victims as (alleged) perpetrators’

Charges: Aggravated assault x 2; Criminal damage x 1; Breach of bail x 3

Proceedings: Appeal against sentence

Facts: The appellant and the first victim were in a domestic relationship for six years (since the appellant was 13), during which the appellant had allegedly been subjected to significant domestic violence at the hands of the victim. On the night of the incident, the appellant started verbally abusing the victim while intoxicated. The victim left the room, but shortly returned to get his wallet. The appellant had found the victim’s wallet and started to cut up his licence. As the victim took and wallet back and tried to leave again the appellant stabbed him behind the knee with the scissors, preventing the victim from being able to walk. During the sentencing hearing, the appellant submitted ‘that on the night the appellant attacked [the first victim] her emotions which had been built up over an extended period of time overflowed and she could not control herself’, claiming the violence to be an exceptional circumstance.

The appellant (and her co-offender) assaulted the second victim a week later. The two offenders were intoxicated and engaged in a verbal argument with the victim. The co-offender then punched the victim in the side of her face with the appellant then punching the victim’s forehead, causing a large haematoma. The two offenders threw rocks at the glass door of the building the victim escaped to, causing the glass panel to break.

Issues:Two grounds of appeal – whether the sentencing Judge failed to properly exercise his discretion to find exceptional circumstances; and whether the sentence was manifestly excessive.

Descision and reasoning: The appeal on the first ground was allowed and the three months actual imprisonment set aside. The appeals on the other grounds were dismissed.

Ground 1:

The appellant had submitted that the violence characterising her relationship with the first appellant amounted to exceptional circumstances. While the sentencing judge had accepted that the appellant had been exposed to domestic violence, he concluded that ‘the material placed before him was not sufficiently specific to allow a firm conclusion to be drawn that the appellant’s background of domestic violence was operative on the appellant at, or generally around the time of offending’ [42]. Southwood J agreed with the sentencing judge, providing that ‘the difficulty with [the appellant’s] submission was that ‘there was no evidence before the Local Court or [the Supreme Court] that violence had become normalised for the appellant. To the contrary, the facts of the offending and the appellant’s criminal record established that the violence was out of character for the appellant and the main criminogenic factors in her offending were the consumption of alcohol and jealousy’ [46]. However, Southwood J still found that the sentencing judge had failed to consider the appellant’s other ‘exceptional’ personal circumstances such as her young age and no prior convictions for criminal offences. As such, the sentence imposed was unjust.

Ground 2:

The sentence of one-month imprisonment is appropriate as it does not crush the appellant’s prospects of rehabilitation and gives necessary and appropriate consideration to the principles of deterrence and denunciation.

Anderson v Nicholas [2019] NTSC 55 (5 July 2019) – Northern Territory Supreme Court

‘Appeal against sentence’ – ‘Misuse of alcohol’ – ‘Past domestic violence against former partners’ – ‘Physical violence and harm’ – ‘Poor prospects of rehabilitation’ – ‘Threats to kill’ – ‘Weapon’

Charges: Aggravated assault x 1; Threat to kill x 1.

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to, and was convicted of, committing aggravated assault against his female ex-partner with a knife, and threatening to kill another person who tried to assist his ex-partner with her injury. The appellant had 14 prior convictions, including 12 for aggravated assault, most on women and some of whom were his previous partners, as well as numerous breaches of domestic violence orders and orders suspending sentences. The offending occurred whilst he was intoxicated and angry. The sentencing judge found the conduct to be intentional, and imposed a sentence of 4 years’ imprisonment, with a non-parole period of 3 years.

Issue:

•

The sentence was manifestly excessive;

•

The total effective sentence was manifestly excessive;

•

The sentencing judge erred in the assessment of the appellant’s moral culpability and in finding intoxication to be an aggravating circumstance;

•

The sentencing judge failed to afford the appellant procedural fairness.

Held: The appeal was dismissed, as neither the head sentence nor the non-parole period was manifestly excessive. The appellant’s extensive criminal history of violent conduct, particularly drunken violence, was relevant as it demonstrated a continuing attitude of disobedience to the law and the need to impose condign punishment for specific or general deterrence. It also indicated that the appellant had poor prospects of rehabilitation, and that community protection was a paramount consideration. Further, the Court noted that the offences, although taking place around the same time, involved two different victims and two different violent acts. It was therefore appropriate for the sentencing judge to reflect those differences in the way she did by fixing a total sentence and allowing for some concurrency ([60]-[61]). In relation to the non-parole period, the appellant’s prospects of rehabilitation, his age, criminal record and the protection of the community were particularly relevant. The non-parole period was justified, given his very poor prospects of rehabilitation and his "dreadful criminal history" ([67]). Further, the sentencing judge did not err in finding that intoxication was an aggravating circumstance of the appellant’s "brazen, excessive and egregious" conduct ([43]-[44]).

O’Neill v Roy [2019] NTSC 23 (12 April 2019) – Northern Territory Supreme Court

Charges: Aggravated assault x 1; Threat to kill x 1.

Case type: Appeal against sentence

Issue: The appellant appealed his sentence on the grounds that:

•

The sentence was manifestly excessive;

•

The total effective sentence was manifestly excessive;

•

The sentencing judge erred in the assessment of the appellant’s moral culpability and in finding intoxication to be an aggravating circumstance;

•

The sentencing judge failed to afford the appellant procedural fairness.

AB v Hayes & Anor [2019] NTSC 13 (6 March 2019) – Northern Territory Supreme Court

‘Conditions’ – ‘Evidence’ – ‘Protection order’ – ‘Sexually explicit images’

Case type: Appeal about domestic violence orders.

Facts: The appellant is an NT police officer stationed in Alice Springs. In 2016, the NT police applied to the Local Court for 2 domestic violence orders. The two applications were heard together.

The two protected persons named in the applications were the appellant’s wife and her daughter from a previous relationship. Both persons immigrated from South East Asia, and started living with the appellant in 2011. The appellant and his wife also had a child together, but separated in 2016. The Local Court in Alice Springs ordered that the appellant be restrained from contacting or approaching the protected persons, either directly or indirectly (‘first order’). In a different proceeding on the same day, the Local Court ordered that the appellant delete and destroy all sexually explicit images of the protected person in his possession or control, and not deal with or publish those images in any other way for a period of 2 months (‘second order’) ([3]-[4]).

The appellant filed 2 appeals in the Supreme Court, one for each of the Local Court proceedings. On 22 June 2017, Southwood J set aside the first order on the basis that the Local Court Judge could not reasonably infer from the facts that the appellant’s wife’s daughter feared the commission of domestic violence from the appellant, and there was no evidence that the appellant harassed her by engaging in regular and unwanted contact ([13]).

His Honour considered the appeal against the second order. The grounds of appeal included that:

•

The order was ultra vires as the Local Court did not have power to compel the appellant to destroy his property;

•

There was no proper evidential basis for the Local Court to conclude that there were reasonable grounds for the protected person to fear the commission of domestic violence arising out of the appellant’s possession of the images ([6])

Issue: Whether Local Court acted ultra vires in making an order to compel the destruction of sexually explicit images; whether there was a proper evidential basis for the Local Court to conclude there were reasonable grounds for the protected person to fear the commission of domestic violence arising out of the possession of the images.

Held: Southwood J allowed the appeals and set aside both domestic violence orders. His Honour held that the Local Court did not have the power to make the second order. Section 21 of the Domestic and Family Violence Act (the Act) does not grant the Local Court power to order a defendant to destroy his or her personal property. Rather, it enables the Local Court to impose conditions on a defendant’s behaviour with the aim of ensuring that the defendant does not engage in domestic violence. Further, the Act makes specific provision for circumstances in which property rights may be interfered with by the Local Court, none of which applied in this case ([46]-[48]). His Honour was satisfied that the appellant was the owner of the sexually explicit images and that his wife consented to him taking them ([45]).

His Honour also held that the Local Court erred in concluding that there was a reasonable fear that the appellant may use, or threaten to use, the sexually explicit images to continue to control his wife. This conclusion was ‘unreasonable and irrational’ ([54]). Further, the evidence showed that the appellant and his wife took sexually explicit images over a number of years for their own enjoyment ([50]).

Bush v Lyons [2018] NTSC 20 (28 April 2018) – Northern Territory Supreme Court

‘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]).

Andalong v O’Neill [2017] NTSC 77 (19 October 2017)– Northern Territory Supreme Court

‘Autrefois acquit’ – ‘Autrefois convict’ – ‘Double jeopardy’ – ‘Double punishment’ – ‘Sentencing’

Charges: Driving unregistered vehicle x 1; driving uninsured or improperly insured vehicle x 1; driving whilst disqualified x 1; driving with a high range breath alcohol content x 1.

Case type: Appeal

Facts: On 25 November 2015, the appellant was apprehended while driving a motor vehicle while intoxicated. The appellant was charged with a range of offences under the Traffic Act (NT) (the Act), including driving an unregistered vehicle on a public street (section 33(1)), and driving a vehicle in relation to which a current compensation contribution had not been paid (section 34(1)). The appellant indicated that he would plead guilty to the offence of driving an unregistered motor vehicle, but contended that the offence of driving an uninsured vehicle was a ‘similar offence’ and thus entitled him to the defence under section 18(b) of the Criminal Code (NT). The Local Court found the appellant guilty of these offences.

Issue: The issue for determination is whether the offence under section 33(1) of the Act is a ‘similar offence’, within the meaning of section 18 of the Criminal Code (NT), to the offence under section 34(1).

Held: The Court held that the offence under section 33(1) was not a ‘similar offence’ to the offence under section 34(1). While it may be accepted that the 2 offences shared common features, they nevertheless remained distinct and addressed separate obligations imposed under traffic laws for the protection of the community ([53]-[54]).

The fundamental principle is that a person cannot be prosecuted twice for the same criminal conduct ([16]). The double jeopardy doctrine has a number of different aspects with different operation, including the pleas of autrefois acquit and autrefois convict and the rule against double punishment ([17]). The availability of the pleas of autrefois acquit and autrefois convict will depend on a comparison between the elements of the two offences under consideration. It is insufficient that the two offences arise out of the same conduct, or out of a single event or connected series of events ([21]). The question is whether the elements of the offences charged are identical, or substantially the same in the sense that all the elements of one offence are wholly included in the other ([23]). The Court considered Ashley v Marinov [2007] NTCA 1, and adopted the principles expressed by the High Court in Pearce v The Queen [1998] HCA 57 where it was held that no double prosecution arises if the offences with which the accused was charged required proof of a fact which the other did not ([33]).

Note: This case is relevant in terms of domestic and family violence matters in the NT as it considers the law surrounding double punishment.

Fernando v Firth [2017] NTSC 67 (25 August 2017) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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:

(a)

To act in a particular way, namely engaging in verbal abuse and physically violent behaviour towards the complainant; and/or

(b)

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 –

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.

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]):

(a)

as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]–[156]);

(b)

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]);

(c)

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]);

(d)

to ensure that the jury are not required to decide issues in a vacuum (at [428], [498]); and

(e)

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:

(a)

Avoid the circumstances of the alleged offence appearing inexplicable or being misunderstood in isolation; see Roach v The Queen [2011] HCA 12 at [45]

(b)

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]

(c)

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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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.

Kassman v Dwyer & Anor [2014] NTSC 60 (10 December 2014) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

‘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) – Northern Territory Supreme Court

*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) – Northern Territory Supreme Court

‘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.

Last updated: July 2024

Northern Territory

Supreme Court

The King v Kopp [2024] NTSC 22 (5 April 2024) – Northern Territory Supreme Court

‘Appeal against sentence’ - ‘Manifestly inadequate’ - ‘Arson and fire’ - ‘Physical violence and harm’ - ‘Vulnerable groups’ - ‘Pregnant people’ - ‘Tendency evidence’

Charges: Aggravated assault x 4; rape x 2; deprivation of liberty (over course of three days) x 1.

Proceedings: Application to adduce tendency evidence.

The King v Hennessy [2023] NTSC 67 (1 August 2023) – Northern Territory Supreme Court

Charges: Rape x 4; aggravated assault x 3.

Proceedings: Application to adduce tendency evidence.

Decision and Reasoning: Application approved to prove tendency two and four. [21]

•

Justice Blokland held the second and fourth tendencies readily possessed the requisite ‘significant probative value’ to be relevant and admissible: [30]

The establishment of the tendency cannot start from an assumption that unproven evidence as a whole gives rise to the tendency. This employs dangerously circular reasoning [40]

The Queen v Lyncha [2021] NTSC SCC22033629 (4 October 2021) (Sentence) – Northern Territory Supreme Court

Charges: Sexual intercourse without consent x12; aggravated assault x3.

Proceedings: Sentencing.

The Queen v Lynch [2021] NTSC SCC22033629 (4 October 2021) (Sentence) – Northern Territory Supreme Court

Charges: 1x unlawful deprivation of liberty; 1x assault; 1x driving disqualified; 2x breaching a protection order.

Proceedings: Sentencing.

Issues: Sentence

Decision and Reasoning: The overall sentence was 2 years, with a non-parole period of 12 months.

The Queen v Lewis [2021] NTSC 40 (6 May 2021) – Northern Territory Supreme Court

Charges: Aggravated unlawful assault x 1; Recklessly engaging in conduct giving rise to danger of serious harm x 1.

Proceedings: Application to adduce evidence.

Issues:

Whether the evidence ought to be adduced as tendency evidence.

Whether the evidence ought to be adduced as relationship evidence.

Decision and reasoning: Application to admit the evidence as tendency evidence was dismissed. Application to admit the evidence as relationship evidence was upheld.

Arnott v Blitner [2020] NTSC 63 (1 October 2020) – Northern Territory Supreme Court

Charges: Contravening a Domestic Violence Order (DVO) x 1; Breach of bail x 1.

Proceedings: Prosecution appeal against sentence.

Grounds of appeal: In relation to the sentence for breaching the DVO –

The sentencing judge erred in applying s 121(2) and 121(3) of the Domestic and Family Violence Act 2007 (NT).

The learned sentencing judge erred in imposing a sentence which was manifestly inadequate in all the circumstances.

Held: Appeal dismissed.

Carter v Firth [2020] NTSC 62 (16 September 2020) – Northern Territory Supreme Court

‘Appeal against sentence’ – ‘Assault’ – ‘Threat to kill’ – ‘Weapon’

Charges: Using a carriage service to make threat to kill x 1; Unlawfully entering a building with intent to commit assault x 1; Unlawful assault x 1; Threat to kill x 2; Aggravated assault x 1.

Proceedings: Appeal against sentence.

Grounds of appeal: The overall sentence was manifestly excessive.

The Queen v Anzac [2020] NTSC 58 (7 August 2020) – Northern Territory Supreme Court

‘Breach’ – ‘Misuse of alcohol or drugs by the perpetrator’ – ‘Prosecution appeal against sentence’ – ‘Protection order’

Charges: Breach domestic violence order (DVO) x 1.

Proceedings: Prosecution appeal against sentence.

Grounds of appeal:

The sentencing judge erred in applying ss 121(2) and (3) of the Act.

The sentence was manifestly inadequate.

Hardy v Rigby [2020] NTSC 42 (10 July 2020) – Northern Territory Supreme Court

‘Appeal against sentence’ – ‘Exposing children to domestic and family violence’ – ‘Strangulation’

Charges: Aggravated unlawful assault x 1.

Proceedings: Appeal against sentence.

Grounds of appeal: The sentence was manifestly excessive because it included the recording of the conviction. Specifically –

Too much weight was given to “denunciation”.

Insufficient weight was given to evidence of positive good character including contrition and remorse.

The sentencing judge failed to take into account the views of the victim.

The sentencing judge erred by choosing to record a conviction.

Insufficient weight was given to evidence concerning the appellant’s mental health, and the sentence failed to include appropriate conditions to address his mental health.

The sentencing judge took into account the irrelevant consideration of prospective legislation increasing the penalty for assaults by strangulation.

It was also significant that the appellant removed the victim’s access to telephones and outside help before strangling her, and that their child was exposed to domestic violence.

Williams v Firth & Anor [2020] NTSC 9 (24 February 2020) – Northern Territory Supreme Court

Charges: Aggravated assault x2; Breach of bail x1.

Appeal type: Appeal against sentence.

Grounds:

That the sentences imposed were manifestly excessive; and

That the learned sentencing Judge erred in finding that the circumstances of the case were not exceptional pursuant to s 78DI of the Sentencing Act.

Judgment:

Queen v Pamkal [2019] NTSC 80 (15 October 2019) – Northern Territory Supreme Court

‘Evidence’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Sexual and reproductive violence’ – ‘Tendency purposes’

Proceedings: Voir dire on admissibility of evidence of past violent conduct by the accused against the complainant

Issues: Admissibility of tendency evidence; whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused

Judgment:

The evidence was admitted both as relationship or context evidence and as tendency evidence and will not be excluded under UEA s 137.

Douglas v Dole & Ors [2019] NTSC 80 (15 October 2019) – Northern Territory Supreme Court

Charges: Aggravated assault x 2; Criminal damage x 1; Breach of bail x 3

Proceedings: Appeal against sentence

Issues:Two grounds of appeal – whether the sentencing Judge failed to properly exercise his discretion to find exceptional circumstances; and whether the sentence was manifestly excessive.

Descision and reasoning: The appeal on the first ground was allowed and the three months actual imprisonment set aside. The appeals on the other grounds were dismissed.

Ground 1:

Ground 2:

Anderson v Nicholas [2019] NTSC 55 (5 July 2019) – Northern Territory Supreme Court

Charges: Aggravated assault x 1; Threat to kill x 1.

Case type: Appeal against sentence

Issue:

•

The sentence was manifestly excessive;

•

The total effective sentence was manifestly excessive;

•

The sentencing judge erred in the assessment of the appellant’s moral culpability and in finding intoxication to be an aggravating circumstance;

•

The sentencing judge failed to afford the appellant procedural fairness.

O’Neill v Roy [2019] NTSC 23 (12 April 2019) – Northern Territory Supreme Court

Charges: Aggravated assault x 1; Threat to kill x 1.

Case type: Appeal against sentence

Issue: The appellant appealed his sentence on the grounds that:

•

The sentence was manifestly excessive;

•

The total effective sentence was manifestly excessive;

•

The sentencing judge erred in the assessment of the appellant’s moral culpability and in finding intoxication to be an aggravating circumstance;

•

The sentencing judge failed to afford the appellant procedural fairness.

AB v Hayes & Anor [2019] NTSC 13 (6 March 2019) – Northern Territory Supreme Court

‘Conditions’ – ‘Evidence’ – ‘Protection order’ – ‘Sexually explicit images’

Case type: Appeal about domestic violence orders.

Facts: The appellant is an NT police officer stationed in Alice Springs. In 2016, the NT police applied to the Local Court for 2 domestic violence orders. The two applications were heard together.

His Honour considered the appeal against the second order. The grounds of appeal included that:

•

The order was ultra vires as the Local Court did not have power to compel the appellant to destroy his property;

•

Bush v Lyons [2018] NTSC 20 (28 April 2018) – Northern Territory Supreme Court

‘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.

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.

•

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]).

Andalong v O’Neill [2017] NTSC 77 (19 October 2017)– Northern Territory Supreme Court

‘Autrefois acquit’ – ‘Autrefois convict’ – ‘Double jeopardy’ – ‘Double punishment’ – ‘Sentencing’

Charges: Driving unregistered vehicle x 1; driving uninsured or improperly insured vehicle x 1; driving whilst disqualified x 1; driving with a high range breath alcohol content x 1.

Case type: Appeal

Note: This case is relevant in terms of domestic and family violence matters in the NT as it considers the law surrounding double punishment.

Fernando v Firth [2017] NTSC 67 (25 August 2017) – Northern Territory Supreme Court

‘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.

Issues: Whether the verdict was unsafe and unsatisfactory.

R v Grant [2016] NTSC 54 (31 October 2016) – Northern Territory Supreme Court

‘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.

(a)

To act in a particular way, namely engaging in verbal abuse and physically violent behaviour towards the complainant; and/or

(b)

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 –

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]).

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]).

(a)

as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]–[156]);

(b)

(c)

(d)

to ensure that the jury are not required to decide issues in a vacuum (at [428], [498]); and

(e)

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]).

(a)

Avoid the circumstances of the alleged offence appearing inexplicable or being misunderstood in isolation; see Roach v The Queen [2011] HCA 12 at [45]

(b)

(c)

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]

Houseman v Higgins [2015] NTSC 88 (7 December 2015) – Northern Territory Supreme Court

‘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

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.

•

Gorey v O’Neill [2015] NTSC 66 (1 October 2015) – Northern Territory Supreme Court

Charge: Breach of domestic violence order

Appeal type: Appeal against sentence

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

Decision and reasoning: The appeal was dismissed.

R v Stevenson [2015] NTSC – Sentencing Remarks 21353266 (Kelly J) (14 September 2015) – Northern Territory Supreme Court

Charge: Murder (sentenced for manslaughter)

Proceeding: Sentencing

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.

Mamarika v Rourke [2015] NTSC 42 (23 July 2015) – Northern Territory Supreme Court

‘Aggravated assault’ – ‘Alcohol’ – ‘Deterrence’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Pregnant victim’ – ‘Sentencing’ – ‘Totality’

Charge: Aggravated assault

Appeal Type: Appeal against sentence

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.

•

Namundja v Schaefe-Lee [2015] NTSC 36 (12 June 2015) – Northern Territory Supreme Court

Charges: Aggravated assault, breach of alcohol protection order

Appeal type: Appeal against sentence

Issues: Some issues on appeal were whether the magistrate:

•

Failed to adequately consider the appellant’s prospects of rehabilitation;

•

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.

•

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.

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Orsto v Grotherr [2015] NTSC 18 (31 March 2015) – Northern Territory Supreme Court

Charge: Aggravated assault

Appeal type: Appeal against sentence

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.

Kassman v Dwyer & Anor [2014] NTSC 60 (10 December 2014) – Northern Territory Supreme Court

‘Domestic violence order’ – ‘Procedural fairness’

Procedure: Making of domestic violence order

Appeal type: Appeal against imposition of domestic violence order

Issue: Was the plaintiff denied natural justice?

R v Ashley [2014] NTSC 26 (15 July 2014) – Northern Territory Supreme Court

‘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

Issues:

•

Was the evidence of the three witnesses admissible?

•

Should the jury be discharged because of the juror’s note?

Decision and reasoning:

•

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) – Northern Territory Supreme Court

‘Admissibility of evidence’ – ‘Hearsay’ – ‘Motive’ – ‘Murder’

Charge: Murder

Proceeding: Pre-trial rulings on evidence

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

Manakgu v Russell [2013] NTSC 48 (14 August 2013) – Northern Territory Supreme Court

‘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

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

JCM v LJN [2013] NTSC 50 (13 August 2013) – Northern Territory Supreme Court

Appeal type: Variation of domestic violence order

Decision and reasoning: The appeal was allowed.

Watson v Chambers [2013] NTSC 7 (12 February 2013) – Northern Territory Supreme Court

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

Appeal type: Appeal against sentence

•

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

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.

•

Palmer-Peckham v Westphal [2012] NTSC 74 (28 September 2012) – Northern Territory Supreme Court

‘Alcohol’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly excessive’ – ‘Sentencing’

Charge: Breach of domestic violence order

Appeal type: Appeal against sentence

Issues: Whether the sentence imposed was manifestly excessive.

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

Blitner v Vanzella [2012] NTSC 72 (26 September 2012) – Northern Territory Supreme Court

‘Breach of domestic violence order’ – ‘Lapse of domestic violence order’

Charge: Breach of domestic violence order

Appeal type: Appeal against conviction

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.

Carne v Wride; Carne v Nicholas [2012] NTSC 33 (15 May 2012) – Northern Territory Supreme Court

Charges: Breach of domestic violence order, aggravated assault

Appeal type: Appeal against sentence

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.

•

Idai v Malogorski [2011] NTSC 102 (14 December 2011) – Northern Territory Supreme Court

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

Appeal type: Appeal against sentence

•

Count 4: five months’ imprisonment

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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.

•

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) – Northern Territory Supreme Court

‘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)

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.

Bonney v Thompson [2011] NTSC 81 (7 October 2011) – Northern Territory Supreme Court

‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Extension of domestic violence order’ – ‘History of abuse’

Appeal type: Appeal against refusal to extend domestic violence order

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.

•

Parnell v Verity [2011] NTSC 47 (24 June 2011) – Northern Territory Supreme Court

‘Assaulting police’ – ‘Resisting arrest’

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

Appeal type: Appeal against conviction

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.

Semkin v Verity [2011] NTSC 12 (15 February 2011) – Northern Territory Supreme Court

Charges: Breach of domestic violence order

Appeal type: Appeal against sentence

Issues:

•

Whether the sentence was manifestly excessive.

•

Whether the magistrate erred in applying the principle of totality.

Decision and reasoning: The appeal was dismissed.

•

Atkinson v Eaton [2010] NTSC 72 (17 December 2010) – Northern Territory Supreme Court

‘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

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.

Walker v Verity [2010] NTSC 68 (7 December 2010) – Northern Territory Supreme Court

Appeal type: Appeal against sentence

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.

•

AB v Northern Territory of Australia [2010] NTSC 8 (18 March 2010) – Northern Territory Supreme Court

‘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

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]).

•

Midjumbani v Moore [2009] NTSC 27 (26 June 2009) – Northern Territory Supreme Court

‘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

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.

•

Norris v Sanderson [2007] NTSC 1 (12 January 2007) – Northern Territory Supreme Court

*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

•

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.

Hales v Stevens [2000] NTSC 97 (14 December 2000) – Northern Territory Supreme Court

Charge: Aggravated assault

Appeal type: Crown appeal against sentence

Issue: Whether the sentence was manifestly inadequate.

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

Last updated: July 2024

National Domestic And Family Violence Bench Book

Last updated: July 2024