Arnott v Blitner

[2020] NTSC 63

CITATION:Arnott v Blitner [2020] NTSC 63

PARTIES:ARNOTT, Leighton Robert

v

BLITNER, Cedric

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 25 of 2020 (22015977)

DELIVERED:  1 October 2020

HEARING DATE:  7 September 2020

JUDGMENT OF:  Kelly J

CATCHWORDS:

CRIME – SENTENCING APPEAL – Crown appeal – construction of Domestic and Family Violence Act 2007 (NT) ss 121(2) and (3) – the words “in the particular circumstances of the offence” in s 121(3)(b) do not set a standard which the circumstances must meet or impose an additional test - for s 121(3)(b) to be satisfied, the court need only be satisfied that, in the particular circumstances of the offence, it is not appropriate to record a conviction and impose a sentence of at least seven days imprisonment – no error by sentencing judge – appeal dismissed

CRIME – SENTENCING APPEAL – Crown appeal – construction of Domestic and Family Violence Act 2007 (NT) ss 121(2) and (3) – by reason of s 121(5) which prohibits suspension of a sentence imposed on a person who has previously been found guilty of a DVO contravention offence, the reference in s 121(2) to imprisonment for at least seven days is a reference to not less than seven days actual imprisonment – no error by sentencing judge – appeal dismissed

CRIME – SENTENCING APPEAL – Crown appeal – s 121(3)(b) - consideration of the term “circumstances of the offence” - sentencing judge did not take into account irrelevant circumstances – appeal dismissed

Domestic Violence Act 1992 (NT) s 10(1A), s 10(1B)
Domestic and Family Violence Act 2007 (NT) s 120(1), s 121(1), s 121(2); s 121(3)(a), s 121(3)(b), s 121(5), s 122
Misuse of Drugs Act 1990 (NT) s 37(2)
Sentencing Act 1995 (NT) s 78A, s 78DD and s 78DI(1)

Criminal Code 1983 (NT) s 1A (1)-(4), s 414(1A)

Duthie v Smith [1992] NTSC 38, Everett v The Queen (1994) 181 CLR 295, Fejo v Ilett; Wilton v Ilett (1991) 1 NTLR 27, Gokel v Althouse (2000) 10 NTLR 179, Griffiths v The Queen (1977) 137 CLR 293, House v The King (1936)55 CLR 499, Manakgu v Russell [2013] NTSC 48, Maynard v O’Brien (1991) 78 NTR 16, Midjumbani v Moore [2009] NTSC 27, R v Hume (Unreported, Supreme Court of the Northern Territory, Kearney J, 7 February 1992), The Queen v Anzac [2020] NTSC 58, The Queen v Mossman (2017) 40 NTLR 144, The Queen v Roe (2017) 40 NTLR 187, The Queen v Simpson [2020] NTCCA 9, Trenerry v Bradley (1997) 6 NTLR 175, Whitlock v The Queen [2018] NTCCA 7, Wright v Valladares [2015] NTSC 59, referred

Midjumbani v Moore [2009] NTSC 27, R v BJW [2000] 112 A Crim R 1, R v Osenkowski (1982) 30 SASR 212, The Queen v Simpson [2020] NTCCA 9, Whitlock v The Queen [2018] NTCCA 7, applied

REPRESENTATION:

Counsel:

Appellant:D Castor with T Wrathall

Respondent:  J Stuchbery with C Hasler

Solicitors:

Appellant:Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    A

Judgment ID Number:  Kel2010

Number of pages:  36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Arnott v Blitner [2020] NTSC 63

No. LCA 25 of 2020 (22015977)

IN THE MATTER of the Local Court
(Criminal Procedure) Act

BETWEEN:

LEIGHTON ROBERT ARNOTT

Appellant

AND:

CEDRIC BLITNER

Respondent

CORAM:    KELLY J

REASONS FOR JUDGMENT

(Delivered 1 October 2020)

1. This is a prosecution appeal against the sentence imposed by the learned sentencing judge in the Katherine Local Court on 18 May 2020.

   Background

2. On 2 August 2019 the Darwin Local Court confirmed a Domestic Violence Order (“DVO”) restraining the respondent from (inter alia):

   (a)approaching, contacting or remaining in the company of the protected person when consuming alcohol or another drug or when under the influence of alcohol or another drug;

   (b)causing harm or attempting or threatening to cause harm to the protected person; or

   (c)intimidating or harassing or verbally abusing the protected person.

   The protected person named in the application was Ms Amelia Dawson, the partner of the respondent.  The Order was to remain in force for a period of 12 months.

3. On 1 February 2020 the respondent was personally served with the DVO at Katherine Police Station.

4. At about 4:30 am on 15 May 2020, police went to unit 7, 3 Mannion Street, Katherine after receiving a report of a disturbance.  They found the respondent there, heavily intoxicated, in the company of the protected person.

5. Police arrested the respondent and took him to the Katherine Watch-house. When asked about the DVO and why he was drinking in the presence of the protected person, he said he thought the DVO was finished. He was charged with a single count of contravening s 120(1) of the Domestic and Family Violence Act 2007 (NT) (“the Act”).

6. The respondent was released from custody later that morning on entering into a bail undertaking which contained (inter alia) a condition that he not possess, purchase or consume alcohol.

7. Later that night (at about 10:45 pm) police attended unit 5, 28 Callistemon Drive, Katherine following a report of a drunken disturbance.  A number of people, including the respondent, were drinking VB cans at the front of the property.  The respondent was breath tested and was observed to be intoxicated.  When asked why he was drinking in breach of his bail, the respondent said, “Because I was upset.  I told my missus and was drinking with family.”

8. The respondent was arrested and taken back to the Katherine Watch-house.  He was charged with a single count of breach of bail.  He was refused a further grant of bail and remanded to appear in the Katherine Local Court.

9. On Monday, 18 May 2020 the respondent came before the Katherine Local Court in respect of both charges.  He pleaded guilty to each offence and was sentenced to a total effective sentence of seven days imprisonment.  He was convicted and sentenced to four days imprisonment, backdated to 15 May 2020 for the breach of the DVO; and convicted and sentenced to three days imprisonment for the breach of bail, to be served cumulatively.

10. On 21 May 2020 the respondent was released from custody at the Katherine Watch-house having served the term of imprisonment imposed in respect of both Local Court proceedings.

    The appeal

11. On 10 June 2020, the appellant filed a Notice of Appeal asserting the following grounds of appeal in relation to the sentence for breaching the DVO.

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

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

12. No notice of appeal was filed in relation to the sentence for breaching a bail condition.

    Relevant statutory provisions

13. Where there is a DVO in force against a person, s 120(1) of the Act makes it an offence for the person to engage in conduct that results in a breach of the DVO.

14. Section 121 of the Act provides relevantly:

    (1) If an adult is found guilty of an offence against section 120(1), the person is liable to a penalty of 400 penalty units or imprisonment for 2 years.

    (2) The court must record a conviction and sentence the person to imprisonment for at least 7 days if the person has previously been found guilty of a DVO contravention offence.

    (3)Subsection (2) does not apply if:

    (a)     the offence does not result in harm being caused to a protected person; and

    (b)     the court is satisfied it is not appropriate to record a conviction and sentence the person under the subsection in the particular circumstances of the offence.

    …

    (5)The court must not make an order for a person who has previously been found guilty of a DVO contravention offence if the order would result in the release of the person from the requirement to actually serve the term of imprisonment imposed.

15. Subsection 121(2) does not apply if the conditions in s 121(3) are satisfied. The first such condition, set out in s 121(3)(a) is non-controversial: the offence must not have resulted in harm to the protected person. It is common ground that there was no harm to the protected person in this case.

16. It is also common ground that the expression in s 121(3)(b), “to record a conviction and sentence the person under the subsection” is a composite phrase. What the court must be satisfied of is that, in the circumstances of the offending, it is not appropriate to impose that total penalty – ie to impose a conviction and sentence the offender to not less than seven days imprisonment.

    Ground 1

17. The appellant submitted that the term “particular circumstances” used in s 121(3)(b) sets a standard which the circumstances must meet – much as the expression “exceptional circumstances” does. The appellant contended, in oral submissions, that for s 121(3)(b) to be satisfied, the court must first be satisfied, on ordinary sentencing principles, that a sentence of less than seven days imprisonment is appropriate and then, if it is so satisfied, consider whether “particular circumstances” are made out – ie it is a discrete additional test.

18. In written submissions, the appellant went further and contended that s 121(3)(b) operates in exactly the same manner as s 37(2) of the Misuse of Drugs Act 1990 (NT), and that for s 121(3)(b) to apply, the court must be satisfied that it was not appropriate to sentence the person to imprisonment at all.  The appellant submitted that, because on a consideration of the particular circumstances of the offence, the learned sentencing judge came to the conclusion that a term of imprisonment was warranted (albeit one of less than seven days), her Honour was obliged to impose the mandatory minimum head sentence of seven days’ imprisonment.

19. That submission is doomed to failure in the face of the plain words of ss 121(2) and 121(3)(b), and, as explained in footnotes 18 and 20 below, Midjumbani v Moore[1] is not authority for any such proposition.  Further, Southwood J said in The Queen v Anzac:[2]

    If s 121(3) applies, it follows that s 121(2) does not apply to the Court’s sentencing discretion, and the Court is not, in that circumstance, constrained by the provisions in s 121(2) of the Act. That means that in the circumstance of the respondent, he may be convicted and may be sentenced to a term of imprisonment of less than 7 days or to some other sentencing disposition which does not involve a sentence of imprisonment being imposed.

20. This submission by the appellant confuses s 121(3) with the differently worded provision in s 37(2) of the Misuse of Drugs Act.

21. Section 37(2) of the Misuse of Drugs Act explicitly provides that “in sentencing a person for an offence [to which the subsection applies] the court shall … impose a sentence requiring the person to serve a term of actual imprisonment unless, having regard to the particular circumstances of the offence or the offender … it is of the opinion that such a penalty [ie a sentence of actual imprisonment] should not be imposed”. Section 121(3), by contrast, provides that the mandatory sentencing provision in s 121(2) does not apply if “the court is satisfied it is not appropriate to record a conviction and sentence the person under the subsection [ie to imprisonment for at least 7 days] in the particular circumstances of the offence”.

22. I therefore intend, in these reasons, to address the argument on this issue advanced by counsel for the appellant in oral submissions, as set out in [17] above, which was put forward as an alternative contention in the appellant’s written submissions.

23. I do not agree that the correct approach is that advanced by the appellant. There is nothing in s 121(3)(b) which would suggest that a two stage approach should be adopted or that the words “particular circumstances” should be read as setting a standard which the circumstances must meet, in the way that the term “exceptional circumstances” does.

24. In Midjumbani v Moore[3] Riley J considered the effect of s 121(3)(b) and said:

    If there is no conviction there cannot be a sentence of imprisonment. Once it has been determined that a conviction is appropriate then it follows that a term of imprisonment can be imposed. The issue then to be resolved is whether a sentence of imprisonment ought to be imposed. The response is governed by the terms of s 121(3) of the Domestic and Family Violence Act, which requires the court to consider whether it is appropriate to both record a conviction and sentence the person under the subsection in the particular circumstances of the offence. In my opinion, the phrase is to be read in its entirety to determine its meaning. The provision is expressed in conjunctive terms requiring a consideration of the cumulative penalty being a conviction and imprisonment for at least seven days. The sentencing court is required to look at the particular circumstances of the offence to determine whether it is satisfied that it is not appropriate to both “record a conviction and sentence the person under the subsection”. That is the natural and ordinary meaning of the provision.

25. Riley J also referred[4] to the following extract from the second reading speech for the amendments to the Act introducing s 121(3).

    What this bill will do is make the operation of mandatory provisions fairer. Under the new legislation, the court must record a conviction and impose a sentence of imprisonment of at least seven days for a second or subsequent offence where harm results to the protected person. In circumstances where the breach of the order does not, in fact, result in harm, the court will have discretion not to impose a mandatory sentence if the court is of the opinion that in the circumstances of the offence it is not appropriate to do so.

    In circumstances where there has been a technical breach of an order that resulted in no harm to the victim, the court will maintain its discretion, however, and the potential injustice that arises from the current mandatory sentencing system will be avoided. This change will encourage victims to report breaches when they occur. It may also encourage defendants to consent to orders as they will more likely not fear the inflexibility of the previous sentencing regime.

26. The underlined part of the second reading speech expresses the intention to maintain the court’s sentencing discretion by removing the operation of the mandatory sentencing provisions in s 121(2) where there has been no harm to the victim. There is no mention of any superadded standard.

27. The appellant placed reliance on the judgment of Mildren J in Duthie v Smith[5] for the contention that the words “particular circumstances” as used in s 121(3)(b) impose an added requirement setting a standard which the circumstances must meet. In my view, Duthie v Smith does not support such a contention. In that case, Mildren J was considering s 37(2) of the Misuse of Drugs Act which provides:

    In sentencing a person for an offence against this Act the court shall, [in the circumstances set out in the subsection] … impose a sentence requiring the person to serve a term of actual imprisonment unless, having regard to the particular circumstances of the offence or the offender … it is of the opinion that such a penalty should not be imposed.

28. In doing so, his Honour was concerned with the meaning of the entire exception to the mandatory sentence of actual imprisonment (which, by virtue of s 37(3), was required to be not less than 28 days), not the words “particular circumstances” in isolation.

29. In Duthie v Smith, given the conflicting approaches of Angel J in Maynard v O’Brien,[6] Asche CJ in Fejo v Ilett; Wilton v Ilett[7] and Kearney J in R v Hume,[8] Mildren J went on to form his own view of what was required under s 37(2) for the court to form the opinion that a sentence of actual imprisonment should not be imposed “having regard to the particular circumstances of the offence or the offender”.

30. In doing so, Mildren J agreed with Kearney J that the court should not adopt a “narrow view” of the provision which would equate the expression “particular circumstances of the offence or the offender” with “exceptional circumstances”.  He said:[9]

    It seems to me that the approach called for by the legislature is to look at a sentence of actual imprisonment unless the circumstances of the offence or of the offender warrant otherwise.  This places an onus on the accused to establish that either of those circumstances exist, and if that onus is not discharged, a 28 day minimum sentence of actual imprisonment must follow.

31. After reviewing the earlier cases, Mildren J concluded that for the court to form the opinion that a sentence of actual imprisonment should not be imposed, the circumstances must be “sufficiently noteworthy or out of the ordinary, relative to the proscribed conduct constituting the offence, or of the offender, to warrant a non-custodial sentence”,[10] but that “the circumstances need to be so noteworthy or out of the ordinary as to convey the meaning that only in rare cases will there be found circumstances that fall within that class.”[11]

32. The word “particular” can mean “special” or “marked” or even “unusual” in certain contexts; for example, “The nurse used particular care in handling the fragile newborn baby.”  It can also mean “specific” or “individual”; for example, “On the facts of this particular case, a certain sentence is appropriate,” or, “It depends on the particular circumstances of each case.”

33. In Duthie v Smith, Mildren J had this to say about possible meanings of the word “particular”:[12]

    In one sense, the circumstances of each offence or offender are “particular” or special, in that it is rare to find two cases where the facts are identical. However, to limit the word “particular” in this fashion would result in tautology, as the word would then add nothing to the phrase “circumstances of the offence or of the offender”.  Such an interpretation should be avoided.

34. There are subtle differences in the meaning to be ascribed to the phrase “having regard to the particular circumstances of the offence or the offender” in s 37(2) of the Misuse of Drugs Act and the phrase “in the particular circumstances of the offence”, in s 121(3)(b). In my view, in the context in which it occurs in s 121(3)(b), the word “particular” in the phrase “particular circumstances of the offence” refers to the specific or individual circumstances of the offence and is not used in the sense of “special” or “unusual” as in the phrase “he took particular care”.[13] I do not think its use in that sense is tautological in the context of s 121(3)(b). Rather, it draws attention to the need to examine the particular (ie specific individual) circumstances of the offence. This can be illustrated by considering the nuanced distinction between the phrases “the particular circumstances of the offence” and “the circumstances of the particular offence”.

35. Although it is desirable for the same phrase to be construed the same way in different legislative contexts, this must give way to a purposive construction of the statutory provision in the context of the Act as a whole and there are good reasons why the phrase “in the particular circumstances of the offence” in s 121(3)(b) should be construed somewhat differently from the phrase “taking into consideration the particular circumstances of the offence or the offender” in s 37(2) of the Misuse of Drugs Act.

36. The scheme of the two provisions is different. Section 37(2) prescribes a mandatory sentence of actual imprisonment unless the court is of the opinion, having regard to the particular circumstances of the offence or the offender, that such a sentence should not be imposed. Its primary purpose is to prescribe the mandatory sentence of actual imprisonment and it thereafter provides a limited exception. As Asche CJ said in Fejo v Ilett, in a passage which has been quoted in a number of subsequent cases, the effect of s 37(2) is to reverse the normal sentencing approach that non-custodial dispositions must be first considered and rejected before a sentence of imprisonment is imposed. In that context it makes sense to find, as Mildren J did in Duthie v Smith that the circumstances must be “sufficiently noteworthy or out of the ordinary … to warrant a non-custodial sentence”.[14]

1. Section 121(3) is different. Section 121 does not reverse the normal sentencing approach that non-custodial dispositions must be first considered and rejected before a sentence of imprisonment is imposed. It provides that, in cases where no harm has been caused to the protected person, the mandatory sentencing provision in s 121(2) does not apply at all if the court considers that, in the particular circumstances of the offence, it is inappropriate.

2. The expressed purpose of the two provisions as explained in the second reading speeches is significant.  In the second reading speech for the Misuse of Drugs Act, in which s 37(2) appears, the Minister referred to “the tough stance taken in relation to the supply, cultivation, manufacture and production of illicit drugs”.[15] In relation to s 37(2) in particular, the Minister said:

   As well as making special provision for schools and licensed premises, clause 37 also makes special provision for second and subsequent offences involving the use of drugs in prison, and drug dependent persons. The penalty provisions are tough, and rightly so, but they are not draconian. Whilst the courts are given fairly specific directions as to when and when not to imprison, they are also given a discretion in every case to take the circumstances of the offence and the offender into account. The last thing that this government wants to do is to fill our prisons with young people. The immaturity of some young offenders - those between 17 and 21 - has been recognised. The courts will be able to take this age bracket into account when deciding whether or not to send a person to prison. The courts are also given a special discretion not to imprison drug addicts convicted of possession offences only. Of course, if drug addicts are caught selling drugs, they should be sent to prison like anyone else. And it is not intended that this discretion be exercised in favour of addicts indefinitely. Suitable provisions already exist, of course, in the Juvenile Justice Act for dealing with offenders under the age of 17.[16]

3. As Mildren J noted in Duthie v Smith,[17] the overall policy of the Misuse of Drugs Act is to impose more severe maximum sentences for drug offences generally. This is reflected in the structure of s 37(2). Its primary function is to mandate a sentence of actual imprisonment, subject to the exception. Further, for the exception to apply, the court must reach a state of actual satisfaction that “such a sentence should not be imposed” “having regard to the particular circumstances of the offence or the offender”.

4. By contrast, the legislative purpose of s 121(3), expressed in the second reading speech quoted at [25] above, is to ameliorate the potential injustice that arises from mandatory sentencing by maintaining the court’s discretion not to impose the mandatory minimum in circumstances where the breach of a DVO does not result in harm. To that end, the language of discretion is used: the mandatory sentencing provision does not apply if the court is satisfied it is not appropriate to record a conviction and sentence the person under subsection (2). That purpose is best advanced by construing “particular circumstances of the offence” in s 121(3)(b) to mean, simply, the specific, individual circumstances of the offence.

5. In Midjumbani v Moore, Riley J said:[18]

   The expression “in the particular circumstances” is found in a similar provision in the Misuse of Drugs Act. The phrase was considered in the context of that Act in the judgment of Mildren J in Duthie v Smith; which judgment was later followed by the Court of Criminal Appeal in R v Day. The expression was there held to require the accused to establish circumstances relative to the proscribed conduct constituting the offence sufficiently noteworthy or out of the ordinary to warrant a non-custodial sentence. The circumstances do not need to be either rare or exceptional. In my view a similar approach should be adopted in relation to the provision now under consideration.  [citations omitted]

6. The provisions are indeed similar, and call for a similar, but not identical, approach. Due allowance must be made for the differences in structure and purpose between the two provisions and for the fact that s 37(2) reverses the usual sentencing approach that non-custodial dispositions must be first considered and rejected before a sentence of imprisonment is imposed, whereas s 121(3) provides that the mandatory sentencing provision does not apply in cases where there has been no harm to the protected person if the court is of the opinion that it is inappropriate.

7. For s 121(3) to operate, the circumstances do indeed have to be such that a sentence of at least seven days imprisonment is not appropriate; and they do not have to be rare and exceptional, which was the point being emphasised by Riley J in the passage quoted at [41] above. However, given the differences in the schemes and purposes of the two provisions, in my view there is no warrant to import into s 121(3)(b), any requirement that the circumstances be “noteworthy” or “out of the ordinary”. Provided no harm has been caused to the protected person, and the court is of the opinion that, in the particular circumstances of the offence, on ordinary sentencing principles, the mandatory minimum should not be imposed, the mandatory minimum sentencing provision in s 121(2) does not apply.

8. Counsel for the appellant contended that this would render the mandatory sentencing provision nugatory, and he cited Wright v Valladares[19] in which I said:

   In written submissions, the appellant submitted that “the correct approach to s 78DI(1)(b) of the Sentencing Act is that exceptional circumstances are circumstances that satisfy the court, applying ordinary sentencing principles, that it should make an exception to the starting point of a minimum sentence of the relevant specified period of actual imprisonment”. In other words, the judicial officer imposing the sentence should simply work out what sentence should be imposed on the application of ordinary sentencing principles without reference to the mandatory minimum sentences in the legislation, and if the sentence so arrived at is not a period of actual imprisonment equal to or greater than the mandatory minimum, she would, ipso facto, find that the circumstances were exceptional. Stated that way, it is obvious that such an approach would involve simply ignoring the mandatory minimum sentences in the legislation. (If the sentence so arrived at was equal to or above the mandatory minimum, the mandatory minimum would be irrelevant; if the sentence so arrived at was less than the mandatory minimum that would ipso facto amount to exceptional circumstances, and again, the mandatory minimum would not apply.)

9. Wright v Valladares concerned the mandatory sentencing provisions in s 78DD and s 78DI(1) of the Sentencing Act 1995 (NT) under which the court is obliged to impose a minimum sentence of three months actual imprisonment when sentencing an offender to whom s 78DD applies unless satisfied that the circumstances of the case are exceptional. It is obvious that in a provision of that nature, “exceptional” cannot mean “not justified on ordinary sentencing principles” or the mandatory sentencing provision would never apply.

10. Section 121(3) is different in both structure and purpose. Where harm is caused to the protected person, the mandatory sentencing provision in s 121(2) will always apply. As set out in the second reading speech, the purpose of s 121(3) is to preserve the court’s sentencing discretion where no harm has been caused to the protected person.

11. The issue under consideration in this case did not fall for determination in Midjumbani v Moore. That was an appeal by the offender who contended that the sentencing magistrate ought to have exercised the discretion under s 121(3). The sentencing magistrate had said:[20]

    The second thing I must be satisfied is that it is not appropriate to record a conviction and sentence you to imprisonment.[21] In the circumstances of this case, I find that I cannot be so satisfied and the reasons for this are principally that you went there for your own purposes, that you went there and breached several aspects of the domestic violence order, that you did it two times on the same day. So in such circumstances it seems that you have deliberately disobeyed an order of the court now on three separate occasions; once before in January 2007 and now twice in December 2008. I do not think that I would be properly administering the law as it is set down by Parliament if I were not to impose at least the minimum of seven days imprisonment required by s 121(2).

    In dismissing the appeal ground that the magistrate had misapplied the test in s 121(3)(b), Riley J concluded:[22]

    By reference to the sentencing remarks it is, in my opinion, plain that his Honour applied the correct test. He observed that he must be satisfied “that it is not appropriate to record a conviction and sentence (the appellant) to imprisonment”[23] and then went on to consider the circumstances of the case. I see no error in the approach adopted by the learned sentencing Magistrate.

12. That conclusion is entirely consistent with the construction of s 121(3)(b) I have adopted at [43] above, as is the view expressed by his Honour as to the correct interpretation of s 121(3) which I respectfully adopt.[24]

    In my view s 121(2) of the Act is to be interpreted to provide that, subject to s 121(3), a court must record a conviction and sentence the person to imprisonment for at least seven days if the person has previously been found guilty of a DVO contravention offence. That requirement will always apply if the offence results in harm being caused to the protected person. If harm is not caused, the court is required to consider the particular circumstances of the offence. Only where the court is satisfied that it is not appropriate to record a conviction and sentence the person under the subsection to a period of imprisonment of at least seven days will the subsection not apply.

13. I should add that, even if, contrary to my view of the subsection, the word “particular” in s 121(3)(b) were to mean “special”, it would give no support to the contention that there is an added requirement to consider whether “particular circumstances” are made out as a discrete additional test. There is nothing in the wording of s 121(3)(b) which could give rise to such an additional requirement.

14. The appellant also contended that the sentencing judge made the following specific errors.

    (a)In deciding whether she considered it was inappropriate to sentence the respondent under s 121(2), her Honour mistakenly assumed that the reference in s 121(2) to “imprisonment for at least 7 days” was a reference to seven days actual imprisonment, whereas, on its true construction, it was a reference to a head sentence of at least seven days.

    (b)The sentencing judge should not have taken into account the respondent’s expressed intention to enter the StrongBala program to address his drinking problem when determining, for the purpose of s 121(3)(b), whether it was appropriate to sentence him under s 121(2), because this was not a circumstance of the offence, which can be taken into account under s 121(3)(b), but something relating to the offender.

    (c)The sentencing judge should not have taken into account the lack of harm to the protected person when determining, for the purpose of s 121(3)(b) whether it was appropriate to sentence the respondent under s 121(2). This is a precondition to the exercise of the discretion under s 121(3)(b) specified in s 121(3)(a) and not a matter proper to be considered under s 121(3)(b). (All cases which fall to be considered under s 121(3)(b) are ones in which there has been no harm caused to the protected person.)

    (d)The sentencing judge erred in holding that if the court found that in the particular circumstances of the offence it was not appropriate to sentence the respondent to a term of imprisonment for at least seven days, the sentencing discretion was “at large” and that the court could impose:

    (i)   a sentence of imprisonment for more than seven days; or

    (ii)    a sentence of imprisonment which was suspended or partly suspended.

Construing the reference to “imprisonment for at least 7 days” as actual imprisonment for at least seven days

1. Counsel for the appellant contended that the reference in s 121(2) to imprisonment for at least seven days must be a reference to a head sentence of at least seven days – not actual imprisonment, because the term “actual imprisonment” is not used in that subsection. This, counsel contended, was a more severe sentence than a head sentence of at least seven days, and had the potential to cause the sentencing judge to assess whether it was not appropriate to sentence the respondent under that subsection by reference to the wrong yardstick – one that was too high.

2. The sentencing judge does appear to have acted on the assumption that the reference in s 121(2) to a sentence of “imprisonment for at least 7 days” meant a sentence of actual imprisonment for at least seven days. For example, her Honour said:

   The police Sergeant Teague says that he should go to prison for at least 7 days because he had a very high blood alcohol reading, he was in company with the protected person and the police were called to a disturbance and had to intervene.[25]

   Later, her Honour said:

   … I don’t find it’s warranted that a conviction should be recorded and the defendant be ordered to serve 7 days actual imprisonment …

3. In my view her Honour was correct to do so.  The appellant relied for this submission on remarks by Martin CJ in Trenerry v Bradley[26] on the construction to be given to the phrase “order the offender to serve a term of imprisonment of not less than 14 days” as it was found in the since repealed version of s 78A of the Sentencing Act:

   However, the ability of the Court to exercise some of the discretionary mitigatory provisions, such as to wholly or partly suspend the sentence to a term of imprisonment or, in appropriate circumstances, to fix a non-parole period are not affected by s 78A, standing alone.[27]

4. The simple answer to this contention by the appellant is that although s 121(2) does not exclude the ability of the court to partly or wholly suspend a sentence of imprisonment imposed under that subsection, s 121(5) does. That subsection provides:

   The court must not make an order for a person who has previously been found guilty of a DVO contravention offence if the order would result in the release of the person from the requirement to actually serve the term of imprisonment imposed.

5. Like s 121(2), s 121(5) applies when the court is sentencing “a person who has previously been found guilty of a DVO contravention offence”. Subsection 121(5) prevents the court from suspending any part of the sentence imposed on such a person for breach of a domestic violence order. That means that any sentence imposed under s 121(2) cannot be suspended or partly suspended – it must be served in full. In other words, any sentence imposed under s 121(2) must be a term of actual imprisonment. The learned sentencing judge was correct.

6. Counsel for the appellant contended that s 121(2) should be construed in isolation, without taking into account the effect of s 121(5). That contention cannot be accepted. Statutory provisions must be construed in context and there is no doubt at all, that construed in the context of the rest of the provisions of s 121 – that is to say s 121(5) – the reference in s 121(2) to a term of imprisonment is a reference to a term of actual imprisonment.

   Taking into account the respondent’s expressed intention to enter the StrongBala program, and the lack of harm

7. The sentencing judge gave these reasons for finding that the respondent should not be sentenced in accordance with s 121(2):[28]

   He says he’s 39 years old, he’s spent 4 days in custody, he pleaded guilty.  It’s been 4 years since he last breached his domestic violence orders.  There was no violence between him and his domestic partner on this occasion and he’s prepared to go to StrongBala and do the program so that he can try and address his drinking problem.  And for those reasons, the court should not … record a conviction and impose 7 days imprisonment, because there are particular circumstances why the mandatory sentencing 7 days should be avoided…for the domestic violence offence.

   Later, her Honour concluded:[29]

   In this particular matter, I do find that there are particular circumstances for the contravention of the domestic violence order, the first offence in time, where I don’t find that it’s warranted that a conviction should be recorded and the defendant be ordered to serve 7 days of actual imprisonment for all the reasons that Mr Hasler has submitted to the court, including the fact that it has been four years since his last contravention and that no harm was caused to the complainant.

8. Counsel for the appellant contended that it was an error to take into account the respondent’s preparedness to enter the StrongBala program because that could not be considered as part of the “particular circumstances of the offence”.  It was a subjective matter relating to the offender and one which came into being at a time after the offence had been committed.

9. In my opinion, the sentencing judge did not err in taking that matter into account in performing the assessment under s 121(3)(b). Although the term used is “particular circumstances of the offence” and not, “particular circumstances of the offence or of the offender”, as in s 37(2) of the Misuse of Drugs Act, that expression has been construed widely, and has been held to include relevant circumstances of the offender.  In Midjumbani v Moore, Riley J said:[30]

   Notwithstanding the different wording, in my opinion the reference to “the particular circumstances of the offence” should be given a wide interpretation to achieve the purpose of the legislation. Where appropriate such circumstance will include relevant circumstances of the offender. Such factors as immediate remorse, immediate cooperation with the authorities and an early plea of guilty may be so closely connected to the offender’s culpability as to affect the seriousness of the offence.

   The fact that a wide interpretation was intended is supported by reference to s 122 of the Domestic and Family Violence Act which applies the same terminology as is found in s 121 to a “young person”. In that section reference is made to “the particular circumstances of the offence, including, because of the person’s age”, suggesting that the age of a person is part of the circumstances of the offence. Further, a wide interpretation is consistent with the apparent intention of the legislature, as revealed in the second reading speech, to provide for a “discretion not to impose a mandatory sentence if the court is of the opinion that in the circumstances of the offence it is not appropriate to do so”. There would appear to be no reason why all the circumstances of the offence including those directly related to the offender should not be included. [citations omitted]

10. These remarks were subsequently quoted with approval by Southwood J in The Queen v Anzac.[31]  In my view the fact that the respondent indicated a willingness to enter the StrongBala program after the fact is as much a circumstance of the offence, broadly speaking, as factors such as immediate remorse, co-operation with the authorities and the entry of a guilty plea.  Like such matters, it may cast light on the offender’s culpability, and hence the objective seriousness of the offence.  The breach of the domestic violence order in this case consisted of drinking in the protected person’s presence.  The respondent’s willingness to enter into the StrongBala program potentially shows both that he had a drinking problem and that he was willing to address it, reducing the risk of future breaches, meaning, potentially, that it is less likely that his breach was contumelious.

1. Counsel for the appellant also submitted that the sentencing judge erred by taking into account the lack of harm to the protected person in the passage set out at [57] above. Counsel submitted that as s 121(3)(a) provided that absence of harm to the protected person is a precondition to the exercise of the discretion under s 121(3)(b), all cases which fall to be considered under s 121(3)(b) are ones in which there has been no harm caused to the protected person. Counsel contended that it followed that it was not permissible to take that into account again when considering whether to exercise the discretion under s 121(3)(b).

2. I do not agree. Examining the particular circumstances of the offence necessarily involves assessing the nature of the breach of the DVO and the objective seriousness of the offending in all of the circumstances. Harm is defined in s 1A of the Criminal Code in the following terms:

   Harm is physical harm or harm to a person’s mental health, whether temporary or permanent.

   Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.

   Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

   Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

3. It follows that absence of harm can come in a variety of guises.  Absence of harm is compatible with a breach in which distress has been caused to the protected person as a result of intimidation or angry words, as well as to a situation in which the offender and the protected person were happily in each other’s presence, or a situation in which the offender was actively assisting the protected person.  It would be artificial in the extreme to attempt to isolate out of the consideration of the whole of the circumstances of the offence the fact that no harm was caused.

   Finding that the sentencing discretion was “at large”

4. The following remarks are obiter, included by way of completeness in order to deal comprehensively with the appellant’s submissions.  The appellant complained of a number of errors said to have been made by the sentencing judge which did not find operative expression in the sentence.

5. During the course of the sentencing hearing, the sentencing judge made a number of comments about the court’s power to impose various sentences some of which I agree were erroneous, but none of these remarks had any operative effect on the sentence imposed.  This exchange occurred with defence counsel:[32]

   MR HASLER: And finally, your Honour, just in relation to any suspension of any period of imprisonment, should your Honour impose that, the difficulty is s 121(5) of the Family Violence Act [sic] prevents suspension of a period of imprisonment ... of the requirement to spend the actual term in prison …

   HER HONOUR:     Well then, the only way I can suspend a term of imprisonment is if I found particular circumstances.

   MR HASLER:       That’s right.  That was the exact – that was the submission I was to make, your Honour.

6. In my view, that is not right. Subsection 121(5) is not expressed to apply only to a sentence imposed under s 121(2). On its face, it is expressed to apply to any sentence of imprisonment imposed on “a person who has previously been found guilty of a DVO contravention offence”. Nor does s 121(3) have the effect of permitting a sentence imposed on such an offender to be suspended or partly suspended. Subsection 121(3) says that subsection (2) does not apply if the conditions in the subsection are satisfied: it does not say that subsection (5) does not apply.[33]

7. Under the previous Act (Domestic Violence Act 1992 (NT)), the equivalent provision to s 121(5), was s 10(1B). It was differently worded. It was expressed to apply only to a sentence imposed under s 10(1A) – which was the equivalent to s 121(2). In relation to that subsection, Martin CJ in Gokel v Althouse[34] noted that the prohibition on making an order that would release the offender from the requirement to actually serve the term of imprisonment imposed did not apply only to the mandatory minimum.

8. As the sentencing judge did not purport to suspend any part of the sentence imposed on the respondent, no error in the sentence imposed resulted.

9. The sentencing judge also said:[35]

   If the Court does find particular circumstances, in the exercise of the Court’s discretion, then a sentencing discretion is at large and the court can impose imprisonment or not.  The court can impose a fine.  If the court does impose imprisonment, the [sic] can fully suspend any sentence of imprisonment.  The court can impose one day, two days, ten days but the court is not bound by the mandatory sentencing provisions.

10. Her Honour added later:[36]

    … I could say, I find particular circumstances but I sentence this person to longer than 7 days and it’s fully suspended.  My discretion is at large.  It is.  Once I avoid mandatory sentencing, I can do whatever I like up here.  And that might mean a longer term of imprisonment but no time served.

    …

    I can record a conviction and sentence to 6 months’ imprisonment, 3 years’ imprisonment and fully suspended. I can record a conviction and sentence to 6 weeks’ imprisonment and order that he serve every single day of it, if I wish, though that would fly in the face of the particular circumstances of the submission which is to avoid the mandatory sentencing minimum of at least 7 days being imposed.[37]

11. I take these passages to be colourful explanations of the concept that if s 121(2) does not apply then the sentencing discretion is revived, but of course it must be exercised according to law and is subject to the other provisions of the Act including the maximum sentence in s 121(1) and the prohibition in s 121(5) on suspending a sentence imposed on “a person who has previously been found guilty of a DVO contravention offence”.

12. Further, the discretion under s 121(3)(b) can only be exercised if the court is of the opinion that it is not appropriate to record a conviction and impose a sentence under s 121(2) because a lesser sentence is warranted (ie that it is not appropriate to impose a sentence of imprisonment for at least seven days).

13. No inaccuracies in the sentencing judge’s remarks in this respect led to any error in the sentencing disposition.

    Ground 2

14. The appellant contends that the sentence imposed – four days actual imprisonment – was manifestly inadequate.

15. The principles governing Crown appeals against sentence are not in dispute.[38]

    (a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.[39]

    (b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.[40]

    (c)The presumption is that there is no error.  It is incumbent upon the appellant to show that the sentence was clearly and obviously, and not just arguably, inadequate; that is to say it must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[41]

    (d)The principles in House v The King[42] remain applicable to the determination of manifest inadequacy.

    It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    (e)The principle expressed by King CJ in R v Osenkowski, also remains applicable, namely:[43]

    It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.  The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

    (f)Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced.[44]

    (g)However, in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence.[45]

16. The appellant identified the principles sought to be established on this appeal as:

    (a)that the correct construction of s 121(2) and (3) requires the reference in s 121(2) to “imprisonment for at least 7 days” to be a reference to a head sentence of not less than seven days, rather than a sentence of seven days actual imprisonment; and

    (b)that, on its true construction, the phrase “particular circumstances” in s 121(3)(b) sets a standard which the circumstances must meet – much as the expression “exceptional circumstances” does, and that for s 121(3)(b) to be satisfied, the court must first be satisfied that a sentence of less than seven days imprisonment is appropriate, and then consider whether “particular circumstances” are made out.

    I have rejected both of those contentions.

17. The appellant contends that the following considerations were relevant in relation to the sentencing exercise involving the respondent:

    (a)The respondent came before the court as a mature man of 39 years of age.

    (b)The respondent had four previous convictions for assault.

    (c)The respondent’s last conviction for aggravated assault involved the protected person and he was sentenced to a term of imprisonment for that episode which also involved a contravention of a domestic violence order.

    (d)The respondent had two previous convictions for contravening a domestic violence order.

    (e)The respondent had four convictions for breaching a bail condition.

    (f)The respondent was highly intoxicated and registered a blood alcohol concentration of 0.223 percent.

    (g)The police were called out to the respondent’s address as a result of a disturbance.

    (h)The domestic violence order had been confirmed in the Local Court just three months before.

    (i)Within twelve hours of being granted bail for contravening a domestic violence order, the respondent had disobeyed a further order of the court by breaching one of his bail conditions by registering a blood alcohol concentration of 0.227 percent.

18. The appellant contends that when all of those considerations are taken into account, a penalty of four days’ imprisonment, which amounted to a penalty of half a percent or one-two hundredth of the maximum penalty, was clearly and obviously inadequate.

19. The appellant characterised the respondent’s breach as “contemptuous” and relied on the following passage from the judgment of Barr J in Manakgu v Russell:[46]

    However, given that the DVO contravention in this case was a breach of a court order, it is important to consider the extent to which the offending conduct represented a contemptuous response to the court’s order. 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. However, other relevant considerations include how soon the breach has occurred after the making of the court’s order. Even a relatively minor breach occurring the day of or shortly after the court’s order might be regarded as serious. Each breach will depend on its own facts.

20. In my view, the respondent’s breach of the DVO did not display the kind of aggravating features that would merit the term “contemptuous” of the court’s order.  The conduct occurred three and a half months after the respondent was served with the DVO and it was an agreed fact that he told police that he thought the order was finished.  (The prosecutor did not challenge the genuineness of this belief.)  No harm was caused to the protected person; the breach consisted only of drinking in her company.  It is true that police went to the residence in response to a report of a disturbance, but there is nothing in the agreed facts to suggest that the disturbance involved the respondent or the protected person.  It is true also that he had two previous convictions for breaching DVOs but the most recent one was some four years previously.

21. As to the breach of bail, the respondent has been dealt with separately for that.  I do not think that the fact that he breached his bail shortly after he was released casts any light on his frame of mind at the earlier time when he breached the DVO.  The explanation he gave was that he was upset – and that he told his “missus” and was drinking with family.

22. The appellant quoted an article by former NAAJA lawyer Julian Murphy which suggested that people who breached a court order disqualifying them from driving were often accused of being in contumacious disregard of a court order and exposed to a lengthy custodial sentence, unlike people who breached other kinds of court orders including DVOs.[47]  Although that article argued that disqualified driving should be treated more leniently by courts, the appellant sought to use it to argue, essentially, that breaches of DVOs should be treated more breaches of orders disqualifying a person from driving.  A number of things may be said about that.  First, when pressed, the appellant did not say that I should allow the appeal on the basis that even if the sentence was within the range customarily imposed, that range is too low.  Second, no information has been provided to the court as to either the range of sentences imposed for breaches of DVOs or for breaches of court ordered disqualification from driving.

23. In relation to the submission that a sentence of “of the maximum penalty” is “clearly and obviously inadequate”, I do not think it follows, or that expressing the sentence as a percentage of the maximum is at all helpful. The respondent was sentenced to imprisonment for four days, and by fixing the mandatory minimum sentence at seven days in s 121(2), the legislature was clearly contemplating that some people who had previously been found guilty of a DVO contravention offence might be sentenced to as little as seven days imprisonment (approximately  of the maximum sentence), even when harm had been caused to the protected person as a result of the breach.

24. The appellant has failed to show that there was any error in principle by the learned sentencing judge, that her Honour took into account any irrelevant matters or failed to take into account any relevant matters, and the sentence is not manifestly inadequate.  The appeal is dismissed.

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[1][2009] NTSC 27 at [19]

[2] [2020] NTSC 58 at [39]

[3][2009] NTSC 27 at [19]

[4]Ibid [20]

[5][1992] NTSC 38

[6] (1991) 78 NTR 16 at 22

[7](1991) 1 NTLR 27

[8](Unreported, Supreme Court of the Northern Territory, Kearney J, 7 February 1992)

[9]Duthie v Smith [1992] NTSC 38 at 28

[10]Ibid 27

[11] Ibid 30

[12] Ibid 29-30

[13]    The word “particular” has many shades of meaning.  The meaning applied to it by Mildren J in Duthie v Smith, in the context of s 37(2) of the Misuse of Drugs Act (for good reason) seems closest to “special” – but not going so far as “unusual”.

[14]    Ibid 27

[15]    Northern Territory, Parliamentary Debates, Legislative Council, 25 May 1989, 6854 6534

[17] [1992] NTSC 38 at 28

[18] [2009] NTSC 27 at [24]

[19] [2015] NTSC 59 at [14]

[20] [2009] NTSC 27 at [11]

[21]These were ex tempore remarks by a Local Court judge. It is plain in context that in saying “imprisonment”, the sentencing judge was referring to the test in s 121(3)(b) – ie “to sentence the person under the subsection” meaning a sentence of imprisonment for “at least seven days”. So much is made clear by the closing sentence of this passage: “I do not think that I would be properly administering the law as it is set down by Parliament if I were not to impose at least the minimum of seven days imprisonment required by s 121(2).”

[22]Midjumbani v Moore [2009] NTSC 27 at [25]

[23] See footnote 17. Riley J was quoting from the passage set out above. Counsel for the appellant cited this passage in Riley J’s judgment as authority for the proposition that for s 121(3)(b) to apply, the court must be satisfied that it was not appropriate to sentence the person to imprisonment at all.  In written submissions, the appellant submitted:

“[B]y framing the consideration under subsections 121(2) and (3) as to whether it was appropriate to impose a sentence of seven days’ actual imprisonment, the learned sentencing judge has failed to apply Midjumbani, which simply requires consideration as to whether a term of imprisonment should be imposed.”

That is self-evidently wrong, flying as it does in the face of the plain words of the section.  It is also contrary to the remarks of Riley J at [19] and [22] of Midjumbani v Moore, quoted at [24] above and [48] below.

[24]    Midjumbani v Moore [2009] NTSC 27 at [22]

[25]Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at p 20

[26] (1997) 6 NTLR 175 at 180

[27]Similar remarks were made by Angel J at 184.

[28]    Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at pp 19-20

[29]    Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at p 20

[30] [2009] NTSC 27 at [16] and [17]

[31][2020] NTSC 58 at [36]

[32]    Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at p 10

[33] It may be that an application of applied ingenuity might draw out a construction of the section that would limit the operation of s 121(5) to instances where the mandatory sentence in s 121(2) was being applied, for example by holding that if the court finds, under s 121(3), that it is not appropriate to sentence the person under s 121(2), the person is not being sentenced as “a person who has previously been found guilty of a DVO contravention offence”, but in my view that would strain the literal meaning of the words to breaking point. If this result was unintended, it requires a legislative fix.

[34](2000) 10 NTLR 179 at [7]

[35]    Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at p 11

[36]Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at p 12

[37]    Transcript of Proceedings in the Local Court at Katherine on 18 May 2020 at p 23

[38]    See The Queen v Mossman (2017) 40 NTLR 144 at [8]-[18].

[39]    The Queen v Roe (2017) 40 NTLR 187 at [11]; See also Griffiths v The Queen (1977) 137 CLR 293 at 310

[40]    Everett v The Queen (1994) 181 CLR 295 at 300

[41]Whitlock v The Queen [2018] NTCCA 7 at [7]; See also The Queen v Simpson [2020] NTCCA 9

[42](1936) 55 CLR 499.

[43] (1982) 30 SASR 212 at 212-213

[44]    R v BJW [2000] 112 A Crim R 1 at [29]

[45]Criminal Code s 414(1A)

[46][2013] NTSC 48 at [17]

[47]    Julian R Murphy and Hugo Moodie, ‘Driving whilst disqualified: A case for change’ (2016) 3 NTLJ 93 at 98.