Bell v Dunne; Bell v Cassidy - [2023] NTSC 19

CITATION:Bell v Dunne; Bell v Cassidy [2023] NTSC 19

PARTIES:BELL, Kenneth

v

DUNNE, Andrew
and
BELL, Kenneth
v

CASSIDY, Craig

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 22 of 2021 (22018382)

LCA 23 of 2021 (22113140)
DELIVERED:  27 February 2023
HEARING DATE:  18 November 2021
JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIMINAL LAW – Sentence – Violent offences – Appeal against sentence – manifest excess – offending took place during the operational period of a suspended sentence – breach by way of re-offending and breach of conditions – objective seriousness of offending – lower level – injuries made with a pocket knife – use of a weapon aggravating circumstance – victims at work as an aggravating circumstance – whether individual sentences manifestly excessive – whether total sentence manifestly excessive – whether error in accumulation – appeal dismissed.

CRIMINAL LAW – Procedure – whether reference should be made to expanded bench of the Full Court – reference not made.
Bara v R [2016] NTCCA 5; Bukulaptji v The Queen (2009) 24 NTLR 210;
Ellis v Jackson (1974) 4 ALR 541; Emitja v R [2016] NTCCA 4;
Jeffrey v Rigby (2019) 87 MVR 250; Liddy v R [2005] NTCCA 4;
Lorenzetti v Brennan [2021] NTSCFC 3; Morrow v R [2013] NTCCA 7;
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166;
Tarry v Price (1987) 45 NTR 1.
Interpretation Act 1978 (NT) s 24.
Sentencing Act 1995 (NT) s 106B.

REPRESENTATION:
Counsel:
Appellant:N Redmond
Respondents:  D Porceddu
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondents:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  BLO2302
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Bell v Dunne; Bell v Cassidy [2023] NTSC 19
LCA 22 of 2021 (22018382)
LCA 23 of 2021 (22113140)

BETWEEN:

KENNETH BELL

Appellant

AND:

ANDREW DUNNE
CRAIG CASSIDY
Respondents

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 27 February 2023)
Introduction

This is an appeal against sentence from the Local Court sitting in Alice Springs.
The Notice of Appeal was filed on 28 July 2021. The grounds contained in the notice of appeal are:
1.The decision of the Full Court in respect of the third question in Lorenzetti v Brennan is per incuriam and ought to be overturned and ought to be not followed.[1]
i.The Court did not have regard to section 24 of the Interpretation Act 1978 (NT) (‘Interpretation Act’), and;
2.The sentence imposed by the Local Court is manifestly excessive.
The appellant requested that the questions contained in Ground 1 be referred to a bench of five Judges in the Full Court. That ground was discontinued. There was some brief discussion of a potential referral during argument.
The indication at the hearing was the appeal would be dismissed. That indication is confirmed here. These are the reasons.
Proceedings in the Local Court
On 24 September 2020, the appellant pleaded guilty to two charges for offending committed on 3 June 2020, and was sentenced as follows:
1.Count 2 – Engage in conduct that contravenes a DVO – 2 months imprisonment backdated to 3 June 2020;
2.Count 5 – Aggravated Assault – 7 months imprisonment, cumulative upon the sentence for Count 2.
The total effective period of imprisonment was 9 months, commencing from 3 June 2020. The appellant was released after serving 6 months. The remaining balance of 3 months was suspended with an operational period of 18 months, during which he was subject to supervision and conditions, including a condition not to consume alcohol and to consent to testing.
Following his release, the appellant completed a period of residential rehabilitation at Drug and Alcohol Services Australia (‘DASA’). He then transitioned into the DASA independent living accommodation. He was also employed through DASA, working at a sobering-up shelter for approximately 20 hours a week.
Unfortunately the appellant re-offended on 25 April 2021. This was just under five months after his release from prison for the original offending.
The facts of the offending are that he was intoxicated and, at approximately 1:13am, was ejected from the Rock Bar on Todd Street in Alice Springs for smoking cigarettes on the dance floor. The two victims, TL and BA, were employed as security guards at the Rock Bar.
At 1:15am, the appellant attempted to regain entry to the premises on several occasions. On each attempt, he was again ejected by both victims, who were stationed at the front door of the bar.
While standing at the front of the Rock Bar, the appellant reached into his left pocket and produced a set of keys. A small pocket knife was also on the set of keys. The pocket knife had an open steel blade which was approximately 1cm in length. The appellant held the pocket knife in his left hand and again attempted to gain entry into the premises. The first victim said words to the effect of, “He has a knife.”
The appellant lunged at the first victim and attempted to stab him in the chest. It was accepted that he missed, but he caused a ‘scratch’, or small laceration to the first victim’s right chest. Both victims then rushed to him and there was a physical altercation. At some stage during the incident, the second victim sustained an injury to his right knuckles, described in the facts as a small laceration. Both victims ‘ground-stabilised’ the appellant at the front entrance of the Rock Bar before waving to police for assistance. Police arrested the appellant at 1:20am. The entire incident was captured on CCTV from the Rock Bar.
The appellant was taken into custody. He declined to participate in a breath test at 1:47am, which breached condition five of the suspended sentence.
After negotiations with the prosecution, the appellant pleaded guilty on 10 June 2021 to the following charges:
1.Count 3 – Aggravated unlawful assault of a worker (victim suffers harm), and;
2.Count 4 – Aggravated unlawful assault of a worker (victim suffers harm).
In the Local Court, counsel for the appellant submitted that this was the first significant period of employment and rehabilitation the appellant had in about 15 years. It was also submitted that the appellant has significant problems with alcohol consumption, and that alcohol consumption was linked to both the original offending and the subsequent reoffending which breached the suspended sentence imposed by the original sentencing Judge.
The sentencing Judge allowed a full adjustment of 25% on account of the early pleas of guilty and sentenced the appellant to 14 months imprisonment on Count 3 and 6 months imprisonment on Count 4 (to be served concurrently to Count 3). The sentencing judge restored the 3 months balance outstanding from the suspended sentence, and ordered that it be served cumulatively.
The total effective sentence was 17 months, commencing 25 April, with a non-parole period of 9 months also commencing from that date.
Manifestly excessive
It is appropriate to deal with this ground first.
The appellant argues the sentence as a whole is manifestly excessive, and that the sentence for each count is manifestly excessive. Further, that the Court erred in ordering that the sentences be served cumulatively with the restored sentence and that the non-parole period of 9 months across the whole sentence is manifestly excessive.
The principles relevant to this ground are well known. They are summarised in both Bara v R[2] and Emitja v R[3] in the following terms:
It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge committed error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence.
The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent on the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.
It is well recognised that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. In making that assessment, the objective seriousness of the offence is a vital matter for consideration in determining whether the punishment fits the crime.
The objective circumstances commonly include consideration of the maximum statutory penalty for the offence, the degree of harm caused, the impact on the victim, the method by which the offence was committed, and the offender’s moral culpability. The maximum penalty for each aggravated unlawful assault of a worker charge is 7 years imprisonment. When assessing the gravity of offending against the person, both the degree of harm caused by the conduct and the extent of an offender’s culpability are significant considerations. However, notwithstanding the ‘harm’ element here was at a low level, the offending was aggravated by the production and use of a weapon, even a small weapon.
A matter that was clearly relevant to the sentencing process was the appellant’s lengthy criminal history from multiple jurisdictions, containing relevant violence and weapons charges from as recently as 2020. The offending here was also aggravated because the appellant at the time was on a suspended sentence for other violent offending. It was plainly necessary for specific deterrence to be emphasised due to those factors. The original offending was also for violent offending with a knife.
The sentencing Judge clearly paid attention to the fact that the lacerations were not significant injuries. His Honour looked at the tendered photos to satisfy himself of this. This offending was however, serious for other reasons. While the injuries were ultimately determined to be small lacerations, the facts referred to the appellant ‘attempting to stab him in the chest’. This action plainly elevated the gravity of the offending. The appellant and victim were fortunate that he missed the chest. The appellant’s actions were serious even though the actual harm caused was not in a higher category of harm. The appellant’s attempts to regain entry to the premises were persistent, and required both security guards, and help from police, to eventually restrain and arrest him.
Counsel in the Local Court submitted the appellant’s criminal behaviour, both historically and in this instance, was closely tied to his alcoholism. The sentencing Judge accepted that proposition and accepted the offender had made some successful attempts towards rehabilitation.[4]
His Honour also took into account, as he was obliged to under the Sentencing Act 1995 (NT),[5] the victim impact statements. The victims described their ongoing fear after being confronted by someone intoxicated with a knife while they were working. This illustrates the whole point of the legislated aggravated penalty which applies when people are assaulted at work.
The sentencing judge viewed this as a serious example of offending of this kind, especially given the appellant was already on a suspended sentence. Although a stern sentence as it needed it be, it was not out of the acceptable range for offending of this kind.
The overall course of conduct was in breach of multiple conditions of the appellant’s suspended sentence, imposed for domestic violence offending. His Honour did not consider restoring the outstanding term of the suspended sentence to be unjust in those circumstances. His Honour considered the question of restoration carefully, including the question of accumulation.
In some circumstances it may well be an error to fully accumulate a restored period with a fresh sentence. Issues of totality must be considered as well as the possibility of double penalty for one course of conduct. Consideration must also be given to relevant factors listed in Bukulaptji v The Queen,[6] particularly with reference to all that has taken place since the sentence was suspended. The portion of the restored term was not a lengthy period. If it was, stronger consideration of the principle of totality may be required. It must be remembered there were multiple breaches here. In terms of the offending, the two sets of offending were distinct, involving different victims and circumstances, and occurred independently from each other several months apart.[7] In all of the circumstances there was no error by ordering accumulation of the restored term. Neither did the accumulation mean the sentence was manifestly excessive.
While the sentence is likely to be disruptive to the appellant’s attempts at rehabilitation, given the gravity of the offending, I am not satisfied that any of the individual sentences imposed, or the total of 17 months imprisonment, make out the ground of manifestly excessive.
It may be that the parole board considers placing the appellant on a further programme to encourage his attempts at rehabilitation.
This sentence, including the non-parole period is stern but justifiable. The non-parole period was set at nine months. In my view that is not excessive. The non-parole period was close to the minimum period his Honour could have set in these circumstances. His Honour gave consideration to placing the appellant on the COMMIT programme and declined to do so. It is understandable that given the history of violent offending his Honour did not have confidence in the appellant’s ability to comply at that time. Although breaches of COMMIT orders and relapse to alcohol and substance abuse are part and parcel of the programme and recovery, the problem here was the re-offending and the risks of further re-offending, even given treatment.
His Honour’s sentencing remarks were detailed and closely considered. I will set out the portion of the remarks relevant to the breach of the suspended sentence, accumulation and the setting of the non-parole period.[8]
The court in a hope to assist you with your rehabilitation and the problem that has been highlighted in your own personal background relating to alcohol provided for you to go to DASA, and you were, I think, reasonably successful there, gaining some employment, which you found very fulfilling. I do note, though, that that earlier matter involved you injuring someone with a knife. And again, you’re producing a knife by – in this further offending. The DASA report from Mr Fumatu (?) is a reasonably positive one, indicating your success. But, of course, you had to be evicted, for want of a better term, from the ILP Apartments due to this further matter.
But the DASA outreach team are continuing to support you in the future through case management and life coaching, to assist you to overcome this severe addiction that has become part of your life. I did obtain the s 103 assessment, which I’ve marked exhibit 10, which does indicate that you are a person who would be suitable for supervision. This is an early plea of guilty. I’m satisfied to these matters. And I am going to reduce the penalty by 25 per cent for the usual reasons that the court takes into account, and part of that, of course, is you accepting responsibility for what happened, and it also indicates that you are, as you've indicated to me through your lawyer, and your plea, sorry for this incident.
It would seem that on your release, there will be, perhaps, some opportunity for you to regain some employment that you were working in before this incident occurred. And, no doubt, if you are able to do that, that will provide you with some further assistance towards your rehabilitation. It was an unfortunate decision that you made under the influence of alcohol to go out on 25 April. That has been highlighted by Ms Smith. And she has told me a little about your personal background in that you're a person who unfortunately has had to deal with depression and post-traumatic stress disorder, as well as the issue of alcohol. You're now 46 years of age and can, as I've already mentioned, re-engage with DASA upon your release.
I note on your instructions, you accept that your further offending is sufficiently serious to warrant a period of imprisonment, and, of course, it is my view that it is a serious example of this sort of conduct, and, of course, it is aggravated, too, by the fact that you were already on a suspended sentence and provided with relevant supports to undertake your rehabilitation. Due to the seriousness of this further offending, and the aggravated circumstance of the suspended sentence, I'm not satisfied you're a good candidate for the COMMIT Program, and that any rehabilitation that is put in place for you will need to be rigorous, in my view, and you will have to work very hard to make long-term changes in your life.
But as was highlighted by Ms Smith, rehabilitation is an important factor. The further offending occurred not so long after you were released from custody, and part of your suspended sentence was that you were to remain out of trouble, which you failed to do by further serious violent offending. I am satisfied that it would not be unjust to restore the suspended sentence, which I intend to do today, and there's some three months outstanding on that. That was a serious violent offence, as is this other offending, again, relating to violence. And I am satisfied in all of the circumstances, due to its objective seriousness, and taking into account the other matters about you that I've been informed of, it would be appropriate to order accumulation of the sentences I intend to impose upon you today for the further offending.
On file 8382, pursuant to s 43 of the Sentencing Act, I order that the sentence held in suspense, namely, 3 months, be restored, and you are ordered to serve it. And that sentence will commence on 25 April this year. In regard to file ending 3140, the offending which occurred in April, for the aggravated assault on Mr Loveridge, count 3, you are convicted and sentenced to 14 months' imprisonment. In respect to count 4, the second assault on the worker, you are convicted and sentenced to 6 months' imprisonment. I order that these sentences are to be served concurrently, but cumulatively on the restored sentence on file 22018382.
So that will be a total effective sentence of 17 months’ imprisonment, commencing on 25 April 2021. You were given the opportunity earlier of that suspended sentence, which failed. No doubt in part because of this issue you have with alcohol. But I'm not satisfied that a further suspended sentence is warranted. You have been assessed as suitable for ongoing supervision from Community Corrections, and DASA would support you as well. And due to the seriousness of this matter, I am satisfied that a non-parole period should be fixed.
I fix a non-parole period of 9 months commencing on 25 April 2021. That will be an approximate date of release for you, Mr Bell, if you are successful in parole, on 24 January 2022.
Referral to the Full Court
As above, the Notice of Appeal requests that the decision of the Full Court in respect of the third question in Lorenzetti be referred to a bench of five Judges of the Full Court.[9] The request for this referral stems from the submission that the judgment is per incuriam and ought to be overturned and not followed because the Court did not have regard to s 24 of the Interpretation Act.
As above, this ground has been withdrawn. In any event, as noted in Tarry v Price,[10]
The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy … prior error in a decision can be adjusted only by a court higher in the appellate hierarchy or in exceptional cases by the appellate court itself.

Section 24(2) of the Interpretation Act provides that ‘words in the plural include the singular’. Although the section is not expressly dealt with in the judgment the significance of the use of the indefinite article ‘a’ in a statute is not only referable to the singular but also referrable to the context which is discussed in detail. Their Honours may be taken to have considered the context of the use of the indefinite article. Their Honours also acknowledged that the matter may need to be considered by the legislature. This matter was no longer pursued in oral argument. In any event this is not an appropriate case to seek any further clarification and I understood from oral argument this was the appellant’s position.
Disposition
For the above reasons, the appeal is dismissed.
Orders accordingly.
By agreement these reasons will be forwarded to counsel by email.
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[1] [2021] NTSCFC 3 (‘Lorenzetti’).

[2] [2016] NTCCA 5 at [75]-[76]; see also e.g Liddy v R [2005] NTCCA 4 at [12] cited with approval in Morrow v R [2013] NTCCA 7 at [36].

[3] [2016] NTCCA 4 at [39].

[4] Transcript, Local Court, 30 June 2021 at 3-4, Deputy Chief Judge Birch.

[5] Section 106B(4).

[6] (2009) 24 NTLR 210.

[7] Ellis v Jackson (1974) 4 ALR 541 at 550 (Muirhead J).

[8] Transcript, 30 June 2021 at 3-4, Deputy Chief Judge Birch.

[9] [2021] NTSCFC 3.

[10] (1987) 45 NTR 1 citing Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. See also Jeffrey v Rigby (2019) 87 MVR 250 at [44].