Firth v Namarnyilk

[2021] NTSC 75

CITATION:Firth v Namarnyilk [2021] NTSC 75

PARTIES:FIRTH, Justin Antony

v

NAMARNYILK, Gavin

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 1 of 2021 (22036106)

DELIVERED:  28 September 2021

HEARING DATE:  22 April 2021

JUDGMENT OF:  Barr J

CATCHWORDS:

CRIME – SENTENCING APPEAL – Prosecution appeal – Construction of s 121 (5) Domestic and Family Violence Act 2007 – Respondent adult offender previously been found guilty of a DVO contravention offence – Where s 121(2) did not apply to require imposition of mandatory minimum sentence of imprisonment – Whether s 121(5) prevents the court from suspending sentence imposed – Subsection ambiguous – Permissible to consider extrinsic material – Second reading speech – Held s 121(5) does not operate as a standalone provision – Operates only where s 121 (2) applies – Judicial comity – Appeal “might be decided in favour of the appellant” – No substantial miscarriage of justice – Time elapsed since sentencing – Appeal dismissed

Domestic and Family Violence Act 2007, s 121(2), s 121(5)
Interpretation Act 1978, s 62B(1)(b)(i)
Local Court Criminal Procedure Act 2016, s 177(2)(f)

Lorenzetti v Brennan [2021] NTSCFC 3, considered

Arnott v Blitner [2020] NTSC 63, followed

Narain v Euroasia [2009] VSCA 387; Undershaft (No 1) Limited v Commissioner of Taxation (2009) 175 FCR 150, 253 ALR 280; Snedden (aka Vasiljkovic) v Minister for Justice (Cth) and Anor (2013) 306 ALR 452, referred to

Hansard, Wednesday, 17 October 2007, second reading speech, Mr Stirling, Attorney-General and Minister for Justice, for the Domestic and Family Violence Bill (Serial 120).

REPRESENTATION:

Counsel:

Appellant:T Wrathall

Respondent:  M Aust

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    B

Judgment ID Number:  Bar2107

Number of pages:  15

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

Firth v Namarnyilk [2021] NTSC 75

No. LCA 1 of 2021 (22036106)

BETWEEN:

JUSTIN ANTONY FIRTH

Appellant

AND:

GAVIN NAMARNYILK

Respondent

CORAM:    BARR J

REASONS FOR JUDGMENT

(Delivered 28 September 2021)

1. This is a prosecution appeal against a sentence imposed by the Local Court on 13 November 2020, after the respondent entered a plea of guilty to a charge of contravening a Domestic Violence Order, contrary to s 120(1) Domestic and Family Violence Act 2007.

2. The facts in brief were that the respondent had been served with a police Domestic Violence Order on 26 September 2020. Under that DVO, the respondent was restrained from being in the company of two protected persons when consuming alcohol or when under the influence of alcohol. In the early morning of 13 November 2020, police attended a domestic disturbance involving the respondent and a protected person. The respondent showed clear signs of intoxication and was arrested for the DVO breach. A breath test subsequently conducted at the Palmerston Police Station returned a positive reading.

3. The respondent had previously been convicted of contravening a Domestic Violence Order. There were four such convictions, recorded 4 September 2017, 5 March 2018, 4 July 2018 and 15 October 2020.

4. On 13 November 2020, following entry of plea, reading of agreed facts, and tender of his prior criminal record, the respondent was convicted and sentenced to 10 days imprisonment, wholly suspended.

   The appellant’s case on appeal

5. The appellant contends that the suspension of the 10-day sentence was contrary to law, specifically, contrary to s 121(5) Domestic and Family Violence Act 2007 (“the Act”).

6. The relevant provisions for the purpose of this appeal are contained in s 121(1) to s 121(5) of the Act, set out below:

   121   Penalty for contravention of DVO – adult

   (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.

   (4)In addition, subsection (2) does not apply to a police DVO that has not been confirmed by the Court under Part 2.10.

   (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.

7. It appears from the transcript that s 121(2) was not applied in the sentencing of the respondent. Judge Wallace stated at the end of his sentencing remarks that he had not imposed the 10-day sentence as a mandatory sentence.[1] That may have been because his Honour accepted the defence submission that the criteria in s 121(3) were satisfied, or, with reference to s 121(4), because there was no evidence that the Police DVO had been confirmed by the Local Court. In any event, it is common ground on this appeal that the learned judge’s sentencing discretion was not constrained by the mandatory sentencing requirements in s 121(2).

8. The appellant contends that s 121(5) is a standalone provision, operating independently of s 121(2). The requirement to actually serve “the term of imprisonment imposed” is not restricted to a mandatory sentence imposed pursuant to s 121(2). As a result, once the Local Court had sentenced the respondent to imprisonment for 10 days, it could not then make an order suspending that sentence. The case fell within s 121(5) because: (1) the respondent had previously been found guilty of a DVO contravention offence, and (2) the order wholly suspending the respondent’s sentence was such that it would result in his release from “the requirement to actually serve the term of imprisonment imposed”.

9. The appellant’s contentions find support in the obiter remarks of Kelly J in Arnott v Blitner, extracted below:[2]

   … 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.

   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). … [3]

   The respondent’s case

10. The respondent contends that s 121(5) “only has application with respect to a mandated minimum sentence that must be imposed pursuant to s 121(2)”. As a consequence, because the sentence of 10 days imprisonment was not a mandated sentence, the Court could make an order fully suspending the sentence.

    Consideration

11. The parties’ submissions make it necessary to analyse the statutory provisions extracted in [6] above.

12. The starting point is the theoretical case of an adult offender who has not previously been found guilty of a DVO contravention offence, to whom s 121(2) and s 121(5) would not apply. In such a case, the Court would have an unfettered sentencing discretion, to include: release on bond, with or without conviction; imposition of a fine, with or without conviction, and a community work order, with or without a conviction. The sentencing dispositions available only after recording a conviction would include a prison sentence, wholly or partly suspended; a prison sentence with a fixed non-parole period, and a home detention order.

13. The point to note is that s 121(1) sets out maximum penalties, pecuniary and custodial, but does not mandate imprisonment, and specifically does not mandate any minimum term of actual imprisonment.

14. The only subsection of s 121 which mandates a sentence of imprisonment is s 121(2). Unless its application is excluded by s 121(3) or s 121(4), s 121(2) applies to an adult who has previously been found guilty of a DVO contravention offence. In the cases where it applies, s 121(2) limits the available sentencing dispositions: the court must record a conviction, and must sentence the offender to imprisonment for at least seven days. Section 121(2) does not expressly require that the mandatory sentence (of seven days or more) be actually served in prison. However, s 121(2) must be read with s 121(5), which prohibits a court from making an order suspending a sentence in whole or in part pursuant to s 40(1) Sentencing Act 1995.

15. It is clear from the foregoing that, where s 121(2) applies, the court cannot suspend any part of a sentence imposed, and the offender must serve the sentence in full, whether that be a 7-day mandatory minimum or a 2-year maximum term of imprisonment.

16. The crucial question on this appeal is whether, in cases where s 121(2) does not apply, s 121(5) prevents the court suspending a sentence imposed on an adult who has previously been found guilty of a DVO contravention offence.

17. The interpretation contended for by the appellant is based on the plain words of s 121(5) as a standalone provision. In addition to the matters set out in [8] and [9] above, the appellant points out that, although s 121(5) might have been expressed to apply only to a sentence imposed under s 121(2), and drafted in a similar manner to s 10(1B) of the repealed legislation,[4] it was not so limited.

18. In my opinion, however, for reasons I explain in [19] and [20], there are clear indications that s 121(5) is necessarily to be linked to s 121(2) and not to operate as a standalone provision.

19. The first indication is that the reference to prior offending in the two subsections is in very similar terms: “if the person has previously been found guilty of a DVO contravention offence” in s 121(2), and “for a person who has previously been found guilty of a DVO contravention offence” in s 121(5). That suggests that the subsections are both referring to the ‘same person’, and that s 121(5) refers back to s 121(2).

20. The second (and arguably more significant) indication lies in the expression in s 121(5), “the requirement to actually serve the term of imprisonment imposed”. The subsection does not refer to “the requirement to actually serve any term of imprisonment imposed”. Rather it employs the definite article – ‘the term’ of imprisonment imposed – an apparent reference to a term of imprisonment imposed under s 121(2). It assumes an anterior obligation on the part of the court to have imposed a term of imprisonment. As mentioned in [13], s 121(1) does not require the imposition of a term of imprisonment, and the only previously mentioned imprisonment requirement is in s 121(2).

21. Counsel for the respondent submits that “the term of imprisonment imposed”, referred to in s 121(5), can only be referable to the term of imprisonment imposed pursuant to the exercise of the mandatory regime in s 121(2).[5] With respect, I consider that the position cannot be stated absolutely, notwithstanding the matters identified by me in [19] and [20]. To accept the respondent’s submission, without more, would overlook some level of ambiguity in the drafting of s 121(5).

22. Therefore, in interpreting s 121(5), I consider it is permissible and necessary to consider extrinsic material, pursuant to s 62B(1)(b)(i) Interpretation Act 1978, specifically the Minister’s second reading speech, the relevant parts of which are extracted below (underline emphasis added):[6]

    Domestic Violence Orders will continue to be enforced by criminal sanctions. A breach of a court order will now attract a maximum penalty of two years imprisonment, which replaces six months under the current Act. This penalty has been increased as it was the government’s view that six months was manifestly inadequate given the adverse impact that this kind of violence has on family members and on the community. …

    The bill makes some changes to the sentencing regime. The bill does not introduce mandatory sentencing, as has been claimed. Mandatory sentencing already exists under the Act. 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. …

23. I consider that the purpose or object underlying the relevant part of the Act was made clear in the second reading speech. While in some contexts it is true that “the words of a Minister must not be substituted for the text of the law”,[7] the Court must look to the operation of the statute according to its terms and to legitimate aids to construction. Under s 62A Interpretation Act 1978 a construction that promotes the purpose or object underlying an Act is to be preferred to a construction that does not promote the purpose or object.

24. It is apparent that the legislature wished to retain mandatory sentencing, but that it enacted s 121(3) and s 121(4) as specific measures to make the operation of s 121(2) less harsh than that of the repealed s 10(1B), and thereby avoid the unjust outcomes which had arisen under the predecessor legislation. In that context, it would be incongruous to interpret s 121(5) as a standalone provision preventing the suspension of all prison sentences imposed on persons previously found guilty of a DVO contravention (rather than only those prison sentences where s 121(2) applied). Such an interpretation would be contrary to or at least inconsistent with the mitigating measures incorporated into s 120 to give effect to the clearly stated legislative purpose of making the operation of mandatory sentencing fairer in cases where no harm was caused to a protected person.

25. There is another reason to prefer an interpretation of s 121(5) which permits it to operate only where s 121(2) applies and not otherwise. If s 121(2) did not apply in a given case, whether because of the operation of s 121(3) or because of s 121(4), the court’s sentencing discretion would not be limited to the imposition of a prison sentence as required by s 121(2). The court would have available the wide range of sentencing options referred to in [12] above. However, if s 121(5) were a standalone provision, then, if the court decided to impose a prison sentence, it could not suspend the sentence in whole or in part. That would be an illogical fetter in circumstances where there was no constraint or restriction on the several other non-custodial sentencing options available. To interpret s 121(5) as a standalone provision would thus lead to an “unreasonable” result, in the sense contemplated by s 62B(1)(b)(ii) Interpretation Act 1978, that is, a result that is contrary to reason or good sense.

26. In this context the observations of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[8] are relevant and provide useful guidance.[9] I adopt, with respect, the statement of their Honours extracted below:-

    “ But the propriety of departing from the literal interpretation ... extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”

27. For the reasons stated to this point, I considered that there was no error on the part of Judge Wallace and that the appeal should be dismissed.

28. In late May, however, I became aware of the decision of the Full Court in Lorenzetti v Brennan,[10] which had been delivered on 21 May 2021.

29. One of the questions referred to the Full Court had possible relevance to this appeal. I set out the question and the answer given:[11]

    QUESTION 2: Did s 121(5) of the Domestic and Family Violence Act prohibit the sentencing judge from making an order suspending any part of the sentence in respect of the subsequent offences?

    ANSWER

    The plain meaning of s 121 (5) is to prohibit the court from suspending any part of a sentence imposed for a second or subsequent offence of breaching a DVO. …

30. It was unclear from the Full Court’s decision as to whether the case before the Court was one in which s 121(2) applied, and, if so, whether I was bound by it in the present appeal. As a result, I had my Associate write to the parties on 7 June 2021 as follows, formal parts omitted:

    … His Honour has asked me to draw your attention to the Full Court’s decision in Lorenzetti v Brennan delivered on 21 May 2021 …

    In the present appeal, a crucial question is whether, in a case where s 121(2) of the Domestic and Family Violence Act 2007 does not apply, s 121(5) prevents the court suspending a sentence imposed on an adult who has previously been found guilty of a DVO contravention offence.

    In Lorenzetti v Brennan delivered 21 May 2021, the Full Court stated (at [27]): “The plain meaning of s 121 (5) is to prohibit the court from suspending any part of a sentence imposed for a second or subsequent offence of breaching a DVO”.

    His Honour’s concern is that he may be bound by the Full Court’s decision if that was also a case in which s 121(2) did not apply. However, it is unclear from the decision whether that subsection applied or not. …

    His Honour invites the parties to provide further written submissions …

31. In written submissions provided in response that invitation, counsel for the appellant contends that, when regard is had to the question referred, the Full Court’s decision was an endorsement of the obiter remarks of Kelly J in Arnott v Blitner, extracted in [9] above. That was said to be because, in paragraph 6 of the Referral document, Kelly J had set out the obiter remarks made by her in Arnott v Blitner, essentially as extracted in [9] above.

32. In his further written submissions, counsel for the respondent refers to the absence of any express indication in Lorenzetti v Brennan as to whether s 121(2) applied or not. However, counsel submitted that it was safe to proceed on the basis that s 121(2) did apply:

    Having regard to the sentences imposed in Lorenzetti for the subsequent breaches of the domestic violence order, the nature of the grounds of appeal prior to the questions being reserved to the Full Court, and the fact that part of the total sentence under appeal included the restoration of two sentences for breaching a domestic violence order (presumably then imposed without a prior finding of guilt) that were originally suspended in part and were breached by the fresh offending, it is safe to proceed on the basis that s 121(2) did apply and that the ratio confirms that an offender being sentenced pursuant to a mandatory sentence under s 121(2), whether it be to the seven days or greater, the sentence, consistent with s 121(5) must be served in full.

1. Counsel for the respondent further submitted that the decision of the Full Court in Lorenzetti v Brennan did not ‘cover the field’ and left open the question of the application of s 121(5) to circumstances where a minimum seven-day sentence under s 121(2) for a second or subsequent offence did not apply.

2. In a subsequent email communication to my Associate,[12] counsel for the appellant conceded that, when the Local Court was sentencing Mr Lorenzetti at first instance, s 122(2) Domestic and Family Violence Act 2007 would have applied. On that basis, counsel for the appellant acknowledged that this Court is not bound by the Full Court decision in Lorenzetti v Brennan on the issue whether s 121(5) operates independently of s 121(2). Counsel nonetheless submits that the principle of judicial comity applies and that this Court should follow the obiter remarks of Kelly J in Arnott v Blitner.

3. In summary, it is accepted by the parties to this appeal that the Full Court’s statement in Lorenzetti v Brennan at [27] does not determine the crucial issue which I have to decide, namely whether, in cases where s 121(2) does not apply, s 121(5) prevents the court suspending a sentence imposed on an adult who has previously been found guilty of a DVO contravention offence. It is also tolerably clear that the Full Court stopped short of endorsing, in all circumstances, the obiter remarks of Kelly J in Arnott v Blitner which were set out in par 6 of the Referral document. The Full Court’s answer to question 2 was restricted to the application of s 121(5) in the case before it.

4. I therefore turn to consider the principle of judicial comity. Although not bound to do so, a single judge of this Court should as a matter of judicial comity and precedent follow the earlier decision of another single judge of this Court unless persuaded that the other judge’s decision is clearly or plainly wrong. The observations of Kelly J in Arnott v Blitner were obiter and hence could not be characterised as a decision in the nature of an authoritative determination. Nonetheless, the weight of authority, at least in relation to the decisions of Australian intermediate appellate courts inter se, is that the obligation to follow a decision unless it is considered to be plainly wrong applies not only to judgments but also to “well considered” or “seriously considered” obiter dicta.[13]

5. For reasons which I explained in some detail earlier in this judgment, I disagree with the statement of Kelly J in Arnott v Blitner extracted at [9] above. However, the matter is not clear-cut, and I would not go so far as to say that her Honour’s statement was “plainly” or “clearly” wrong.[14] The correctness of her Honour’s statement is a matter on which learned minds may differ, as is often the case in relation to questions of statutory interpretation.

6. In the circumstances, I apply the obiter dicta of Kelly J in Arnott v Blitner. The point raised on this appeal thus “might be decided in favour of the appellant”, in which case it would follow that the order suspending the respondent’s sentence be set aside. However, pursuant to s 177(2)(f) Local Court Criminal Procedure Act 2016, alternatively in the exercise of this Court’s inherent jurisdiction, I will order that the appeal be dismissed on the ground that no substantial miscarriage of justice has occurred. I consider that it would be inappropriate to require the respondent to be returned to prison more than ten months after being released on a suspended sentence, to serve a period of nine days.[15]

7. The appeal is dismissed.  

   -----------------

[1]Transcript p. 6.8. His Honour noted that he had imposed a sentence greater than the mandatory minimum, but then said, “… I'm not imposing it as a mandatory sentence”.

[2]      Arnott v Blitner [2020] NTSC 63 at [66]-[67].

[3]The two subsections of s 10 of the repealed Domestic Violence Act 1992, referred to by Kelly J, were as follows:

(1A)    Despite the Sentencing Act, where a person is found guilty of a second or subsequent offence against subsection (1), the Court must sentence the person to imprisonment for not less than 7 days but not more than 6 months.

(1B)    Despite the Sentencing Act, the Court must not make any other order in respect of a person referred to in subsection (1A) if its effect would be to release the person from the requirement to actually serve the term of imprisonment imposed under subsection (1A). [italic emphasis added]

[4]See footnote 3.

[5]Respondent’s written submissions, par 9.

[6]Hansard, Wednesday, 17 October 2007, second reading speech made by Mr Stirling, Attorney-General and Minister for Justice, for the Domestic and Family Violence Bill (Serial 120).

[7]      Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.

[8](1980-1981) 147 CLR 297 at 321.

[9]Noting that the High Court decision in Cooper Brookes was delivered before the Commonwealth equivalent of s 62A Interpretation Act (NT) was enacted.

[10]    Lorenzetti v Brennan [2021] NTSCFC 3.

[11]Ibid, at [27], [76].

[12]    Email sent Wednesday, 18 August 2021.

[13]    See, for example, Narain v Euroasia [2009] VSCA 387 at [44], per Nettle J.

[14]    Undershaft (No 1) Limited v Commissioner of Taxation (2009) 175 FCR 150; 253 ALR 280 at [68] – [88]; Snedden (aka Vasiljkovic) v Minister for Justice (Cth) and Anor (2013) 306 ALR 452 at [17].

[15]    Counsel for the appellant fairly acknowledged at the appeal hearing that credit should be given to the respondent for one day served, which would result in a nine day balance of sentence.