Arnott v Harland - [2025] NTSC 10

CITATION:Arnott v Harland & Ors [2025] NTSC 10
PARTIES:ARNOTT, Rhys
v

HARLAND, Maurice

and

SIEBERT, Kelly Marie

and

KIRKBY, Paul Michael

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 17 of 2024 (22037173);
LCA 18 of 2024 (22321100); and
LCA 19 of 2024 (22318066)

DELIVERED:  27 February 2025
HEARING DATE:  5 December 2024
JUDGMENT OF:  Kelly J

Sentencing Act 1995 (NT), s 12, s 45, s 53(4)(b), s 53(2)
DPP v Reynolds (a pseudonym) (2022) 71 VR 336; [2022] VSCA 263; DS v R [2022] NSWCCA 156; Edmond and Moreen v The Queen [2017] NTCCA 9; Markarianv The Queen (2005) 79 ALJR 1048; Phan v Western Australia [2014] WASCA 144; Sabitovic v The King [2024] VSCA 66, referred to
REPRESENTATION:
Counsel:
Appellant:I Read SC with N Goodfellow
Respondents:  P Williams with L Auld
Solicitors:
Appellant:Bryson Kelly Barristers & Solicitors
Respondents:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Kel2506
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Arnott v Harland & Ors [2025] NTSC 10

No.LCA 17 of 2024 (22037173);
LCA 18 of 2024 (22321100); and
LCA 19 of 2024 (22318066)

BETWEEN:

RHYS ARNOTT

Appellant

AND:

MAURICE HARLAND

First Respondent

AND:

KELLY MARIE SIEBERT
Second Respondent

AND:

PAUL MICHAEL KIRKBY
Third Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 27 February 2025)

This is an appeal against an order of a Local Court judge sentencing the appellant to four years imprisonment for a range of offences and ordering the appellant to serve the outstanding balance of 12 months of a suspended sentence with six months of that sentence to be cumulative on the sentence for the fresh offending. The grounds of appeal are as follows.
(1)The learned sentencing judge erred by imposing a sentence that was manifestly excessive in all of the circumstances.
(2)The learned sentencing judge erred by making the following incorrect statement of principle: “One principle that must be stated at the outset is that the subjective factors cannot outweigh the objective seriousness of the offences.” Accordingly, the judge misunderstood the central relevant consideration, causing the sentencing discretion to miscarry.
The appellant was subsequently granted leave to add a third ground of appeal: that the sentencing judge was in error in fixing a single aggregate sentence for both the Territory offences and count 6, the Commonwealth offence of using a carriage service to send menacing, threatening and harassing text messages.
On 19 April 2024, the appellant was found guilty, following a contested hearing, of five domestic violence offences against WC: two charges of assaulting WC; one charge of choking WC; one charge of property damage and one charge of using a carriage service to menace WC. Thereafter, he pleaded guilty to two more charges: an aggravated assault against a stranger, DB which involved the threatened use of a knife in public and driving unlicensed.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arnott v Harland

Details

AGLC: Arnott v Harland [2025] NTSC 10
Case: [2025] NTSC 10
Decision Date: 27 February 2025

CaseChat Overview and Summary

In the case of Arnott v Harland, the appellant challenged the sentence imposed by the sentencing judge for various offences, including domestic violence, under the Sentencing Act. The respondent argued that the sentence was appropriate, considering the severity of the offences, the appellant’s lack of remorse, and the need for community protection and deterrence. The appeal raised issues about whether the sentencing judge correctly imposed an aggregate sentence and whether the sentence was manifestly excessive. The court needed to decide if the sentence was appropriate and if there was a miscarriage of justice due to the aggregate sentence.

The court found that the sentence was not manifestly excessive and was appropriate given the circumstances, including the appellant’s high risk of reoffending and his history of domestic violence under the influence of alcohol. However, the court acknowledged that the sentencing judge erred by imposing an aggregate sentence across the Territory offences and the Commonwealth offence. The court decided to allow the appeal on the third ground, as the sentencing judge had not correctly followed the requirement of the Sentencing Act to indicate separate sentences for each offence before imposing an aggregate sentence. Despite this error, the court concluded that the sentence was appropriate and there had been no miscarriage of justice. The appeal on the first and second grounds was dismissed.

The court set aside the sentence imposed by the sentencing judge and re-sentenced the appellant, restructuring the sentence to comply with the Sentencing Act. The court proposed reducing the non-parole period to half of the total effective sentence, considering the appellant's circumstances and the need for community protection. This decision ensured that the sentence was fair and complied with the legal requirements for sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent contended that given the objective seriousness of the offending, most of which occurred in a domestic violence context, the appellant’s lack of responsibility, insight and remorse and his resort to placing the blame for the offending on the victim, the court necessarily needed to place significant weight on community protection and specific deterrence, and that given the nature of the offending the court likewise needed to place substantial weight on the objectives of denunciation, punishment and general deterrence. The respondent submitted that in all of the circumstances, the sentence imposed was appropriate.Consideration I agree that the sentence imposed was not manifestly excessive, and indeed was appropriate in the circumstances. In addition to the matters emphasised by the respondent, his Honour the sentencing judge was entitled to take into account, when considering whether to partially suspend the sentence or fix a non-parole period, the guarded prospects of rehabilitation he found as a result of the report from Banyan House assessing the appellant as at high risk of relapsing; the fact that his earlier assurances that he would be alcohol free for life were inaccurate; and the important consideration that these offences were committed while the appellant was on a suspended sentence for serious domestic violence against a former partner also committed while under the influence of alcohol. So far as the appellant’s personal circumstances are concerned, there is little information in either the sentencing judge’s remarks or the appellant’s submissions other than that he had children who were living with his former partner but whom he saw; had a good work history; had the offer of employment and had accommodation tentatively lined up in case of a non-custodial disposition. There was no complaint by the appellant of the trial judge’s treatment of the appellant’s personal circumstances.Ground 3 It is conceded by the respondent that the learned sentencing judge erred by impermissibly imposing an aggregate sentence across the Territory offences and the Commonwealth offence. In accordance with s 52(4)(b) of the Sentencing Act, the sentencing judge indicated to the appellant the sentence that would have been imposed for each offence if separate sentences were imposed instead of an aggregate sentence. They were:Count 1: 6 monthsCount 2: 2 monthsCount 3: 30 monthsCount 4: 42 monthsCount 5: 4 monthsCount 6: 1 monthThe total comes to 85 months so there would have been considerable concurrency if individual sentences had been imposed to bring the total to four years and six months (54 months). The appeal must be allowed on Ground 3. However, I am of the view that the sentence imposed was not only not manifestly excessive but entirely appropriate and that there has been no miscarriage of justice, and accordingly, that Grounds 1 and 2 should be dismissed. I think the appropriate disposition is to set aside the sentence imposed by the sentencing judge and to re-sentence the appellant to effectively the same head sentence, restructured so as to avoid including the Commonwealth offence in the aggregate sentence for the Territory offences and to comply with the requirement of s 53(2) of the Sentencing Act. As I am exercising the sentencing discretion afresh, I propose reducing the non-parole period to half of the total effective sentence, noting that there is no longer a mandatory minimum non-parole period for these offences, but that in all of the circumstances, a non-parole period of half the sentence imposed seems to me to be appropriate.