John v Littman

[2009] NTSC 15

John v Littman [2009] NTSC 15

PARTIES:	JOHN, Darren Lee
v
LITTMAN, Andrew Kevyn
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:	JA 62 of 2008 (20815917)
DELIVERED:	8 APRIL 2009
HEARING DATES:	25 MARCH 2009
JUDGMENT OF:	MARTIN (BR) CJ
APPEAL FROM:	Mr V Luppino SM
CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE erred – effect of bail on home detention conditions whilst awaiting appeal – appeal allowed.

Criminal Code, s 410; Justices Act, s 163; Sentencing Act, Div 5, Pt 8, s5, s 7, s 40, s 47, s 48, s 53 and s 113.

O’Brien v Quin (2003) 13 NTLR 122, referred.

Arnold v Trenerry (1997) 118 NTR 1; R v Amesz (Unreported, Supreme
Court of the Northern Territory, Riley J, 10 August 2007); R v Bice

(2000) 2 VR 364; R v Haji-Noor (2007) 21 NTLR 127, discussed.

REPRESENTATION:

Counsel:

Appellant:	S Barlow
Respondent:	R Coates

Solicitors:

Appellant:	North Australian Aboriginal Justice Agency
Respondent:	Director of Public Prosecutions
Judgment category classification:	B
Judgment ID Number:	Mar0901
Number of pages:	26
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

John v Littman [2009] NTSC 15 No. JA 62 of 2008 (20815917)

BETWEEN:

DARREN LEE JOHN

Appellant

AND:

ANDREW KEVYN LITTMAN

Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 8 April 2009)

Introduction

1. This is an appeal against an order restoring a sentence of three months

   imprisonment (“the original sentence”) which had been suspended on

condition that the appellant enter into a home detention order. The original
sentence was imposed following the appellant’s plea of guilty to three
property offences occurring on 11 June 2008. The restoration was ordered

following a second breach of the condition of home detention.

1. The grounds of appeal seek to revisit the original sentence and the order of

   variation made following the first breach of the condition of home detention. complains that the learned Stipendiary Magistrate erred in failing to properly consider the appellant’s plea of guilty and alternatives to actual

   imprisonment. The grounds of appeal also complain that the Magistrate

erred in finding that, following revocation, his Honour could not partially
suspend the restored sentence and that the restoration of the three month
sentence was manifestly excessive.

Facts

1. The offending for which the original sentence was imposed occurred at

about 3:30am on Wednesday, 11 June 2008. The appellant was drinking at
the Vic Hotel in the Smith Street Mall but, due to his unruly behaviour, was

asked to leave and not return. A short time later the appellant threw a rock
through one of the display windows of Alfred’s Novelty Shop located at 320

Knuckey Street. He entered the shop through the broken window and took

$94.50 from the cash register together with a large eel skin bag, eight knives

and a Mag light. The total value of stolen property was $1,455.20. The
appellant then left the premises and, a short time later, was apprehended by
police. Following apprehension, but prior to being conveyed to the watch

house, the appellant informed police of the whereabouts of the stolen

property and it was returned to the owner. The eel skin bag and the Mag

light both sustained damage.

1. At the time of the offence the appellant was aged 18 years. He was in full

time employment. On 17 July 2008 the appellant pleaded guilty to the
offending and, through his counsel, offered to pay full restitution to the
victim. The appellant had previously committed property offences when he
was a juvenile, but had never spent time in custody.

1. The Magistrate made the following observations:

   “This offence is too serious to warrant [a community work order]
   especially in light of your record. The remaining options then are a
   part suspended sentence, home detention order or an actual term of
   imprisonment.

   With those constraints I’m leaning towards a home detention order. I’m not prepared to do anything such as a rising of the court type suspended sentence that, although treated as a proper suspended sentence is reserved for situations where it’s warranted where some sort of exceptional circumstances exist and as I said that is not the case in this matter.

   A fully suspended sentence is out of the question. An actual term of
   imprisonment would likely cost you your job and despite the fact that
   you’ve not had regard for your job which going on this spree, I’ll
   have regard to that and use a disposition that is available to me

   which will result in you being able to keep that job.”

[6]

The Magistrate adjourned the matter to enable the appellant to be assessed on 11 August 2008. After dealing with a number of earlier matters, his Honour imposed an aggregate sentence of three months imprisonment for the

property offence and ordered that the sentence be suspended upon the

appellant entering into home detention for the same period. His Honour
noted that the appellant had been warned about breaches.

1. Sentence having been imposed on 11 August 2008, ten days later on

   21 August 2008 the appellant breached the home detention order by

consuming alcohol. In relation to the breach, on 19 September 2008 the
Magistrate extended the home detention order to six months. His Honour

warned the appellant in the following terms:

“Do not breach this order again; do not fail to pay the restitution. getting one that you don’t deserve today.”

1. On the same occasion that the home detention was extended to six months,

the Magistrate ordered that the appellant pay total restitution of $1,174.95 to
the victims of his offending. His Honour observed that the appellant was

only avoiding serving three months imprisonment because his Honour
preferred that the appellant work and pay restitution.

1. On 3 November 2008, the appellant committed a further breach of his home

   detention order. The appellant again consumed alcohol. He admitted

   drinking beer after work.

2. On 11 December 2008, the breach proceedings were heard by the same

   Magistrate. His Honour found that the appellant yielded “to temptation for

   drinks at work … You yielded to that temptation in face of a very strict

warning given to you only a short time before.” The Magistrate noted that a
“not insignificant quantity of alcohol was consumed”, but also

acknowledged the force of mitigating factors, particularly the appellant’s “vital” role in supporting his mother and five siblings under the age of 12 years and his full time employment as an on site supervisor of 22 workers

for a scaffolding firm. The appellant’s employer provided an extremely

positive reference for the appellant.

1. In considering the order to impose for the breach, the Magistrate said:

   “… if I could partly restore I would, because I think that’s probably viable sentencing option has to be maintained and that involves a revocation of the order.”

   the level of deterrence which would be sufficient in your case, but
   my options are to either not restore or to restore and they’re the only
   options I have from that point of view. And I think that in your case,
   given the circumstances; given the chance you were given, given the
   warning that you were given, which of course was even more
   magnified by the fact that you were asked to sign an
   acknowledgement about that, about not consuming alcohol at the
   time that you were dealt with for the first breach, but in light of that
   … A third chance for a disposition not involving at least some period
   of incarceration for the breach is inappropriate, as such.”

2. The Magistrate than revoked the home detention order and restored the

   original three month sentence.

   Right of Appeal

3. Grounds 1 and 2 complain of errors by the Magistrate in the original

sentencing process on 11 August 2008 and when dealing with the first
breach. No application was made for leave to extend the time within which

to appeal against the original sentence or the order made following the first

breach. Rather, the appellant relied upon s 113 of the Sentencing Act

arguing that upon an appeal against an order for variation or breach of a
previous sentencing order, an appellant is entitled to revisit both the original

sentencing order and the order made in respect of the first breach.

1. The right of appeal from an order of the Court of Summary Jurisdiction is

   found in s 163 of the Justices Act. That section provides for a right of

appeal to the Supreme Court from an “order or adjudication of the Court” on
a ground which involves “sentence”.

1. The word “sentence” is not defined for the purposes of the Justices Act. It

   is arguable that orders made in proceedings for a variation or breach of a

sentencing order (“breach proceedings”) fall within the ambit of s 163 but,
other than a passing reference to s 163, this issue was not the subject of
submissions and it is unnecessary to decide it. The right of appeal against
orders made in breach proceedings is plainly provided by s 113 of the
Sentencing Act.

1. The right of appeal against a sentence imposed by the Supreme Court is

   found in s 410 of the Criminal Code (“the Code”) which provides as

   follows:

   “A person found guilty on indictment may appeal to the Court:

(a)	…
(b)	…
(c)	with the leave of the Court against the sentence passed on the finding of guilt.”

1. The right of appeal pursuant to s 410 of the Code is limited to an appeal

against the original sentence “passed on the finding of guilt”. Section 410
does not extend to an appeal against orders made in breach proceedings.

That right of appeal is provided by s 113 of the Sentencing Act.

1. Section 113 comprises Pt 8 of the Sentencing Act and is as follows:

   “PART 8 - APPEALS AGAINST SENTENCE IMPOSED

   ON VARIATION OR BREACH

   113      Appeal against sentence imposed on variation or breach

   A person sentenced by a court in a proceeding for variation or

   breach of a sentencing order has a right of appeal against sentence as

   if -

(a) the court had immediately before imposing it found the person guilty, or convicted the person, of the offence in respect of which the sentencing order was originally

made; and

(b) the sentence was a sentence imposed on that finding of guilt or conviction.”

1. In my opinion, the right of appeal provided in s 113 is a right limited to

appealing against an order made in breach proceedings. The legislature did
not intend to undermine the finality of sentencing orders by providing an
offender with a right to revisit the original sentence when appealing only
against an order made in breach proceedings. On the appellant’s
construction, if an earlier appeal against an original sentence pursuant to
s 163 of the Justices Act or s 410 of the Criminal Code has been instituted
and determined, nevertheless, on a subsequent appeal pursuant to s 113 of
the Sentencing Act in relation to an order made in breach proceedings, the

appellant would be entitled to revisit the order made by the appellate court
in respect of the original sentence.

1. The scheme of the legislation and the ordinary meaning of the words in

   part 8 lead inevitably to the conclusion that s 113 does not extend in the

manner for which the appellant contended. It is limited to appeals against
orders made in breach proceedings.

1. As I have said, the appellant has not sought leave to extend the time within

which to appeal against the order made following the first breach which
extended the home detention order to six months. There is no appeal on foot
with respect to that order.

Plea of Guilty

1. Ground 3 complains that in revoking the home detention order the

   Magistrate failed to properly consider and give effect to the appellant’s plea

of guilty to the breach of that order. Counsel relied upon s 5(2)(j) of the
Sentencing Act which provides:

“(2)	In sentencing an offender, a court shall have regard to –
…
(j)	whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so …”

1. The appellant accepted that there were no direct authorities to support his

contention. However, counsel referred to the philosophy underlying the
recognition of a plea of guilty in the exercise of the sentencing discretion at
first instance which he submitted applied with equal force to orders made in

breach proceedings. Counsel contended there should be no distinction

between the approach taken when sentencing at first instance and making

orders in breach proceedings. This includes giving an identified reduction
in penalty as occurs when sentencing at first instance.

1. Section 5 is a provision of general operation in sentencing proceedings. It is

   headed “Sentencing Guidelines” and subs (1) identifies the “only purposes

   for which sentences may be imposed on an offender …”. Subsection (2)

commences with the words “In sentencing an offender, a court shall have
regard to …”.

1. As a matter of its place in the sentencing scheme, s 5 appears to be aimed

of a sentencing order. However, the purposes set out in s 5(1), and many of
the factors set out in subs (2), are likely to have relevance to a determination
of the appropriate order following a breach of an original sentencing order.

more at sentencing at first instance than subsequent proceedings for a breach speaks of whether an offender pleaded guilty “to the offence”. In breach proceedings, the offender does not plead guilty to an “offence”. The

offender acknowledges or admits a breach of the original sentencing order.

1. Regardless of the operation of the Sentencing Act, and speaking generally,

   the fact that an offender has pleaded guilty to a breach of a sentencing order

may be a factor to be taken into account. The plea assists in the
administration of justice from a practical point of view and may reflect an
attitude on the part of the offender which is relevant to a determination as to
the appropriate order. It may reflect an acknowledgement of responsibility

and amount to a positive indicator of rehabilitation.

1. In proceedings for a breach of a home detention order or a suspension of a

sentence not involving a home detention order, the court does not revisit the
original sentence. It determines whether the home detention order is to be
revoked or the sentence under suspension should be restored. In these types
of situations there is simply no occasion to recognise a plea of guilty
through a reduction of the sentence that would otherwise be imposed.

However, this does not exclude the relevance of the plea of guilty in the way

I have described. For example, a plea of guilty reflecting acceptance of

responsibility might be a factor to be taken into account in determining
whether to restore a suspended sentence or, if a period is restored, the length
of that period.

1. In the matter under consideration, rather than revoking the home detention

order, pursuant to s 48(9) of the Sentencing Act, the Magistrate possessed
the discretion to direct that the order continue in force and to vary the terms

and conditions of the order. Many factors come into play in the
determination of these questions, including the circumstances of the breach
and the appellant’s progress or otherwise by way of rehabilitation. A plea
of guilty may be a factor relevant to these questions. Whether the plea of
guilty should be given any weight is a matter to be determined according to

the circumstances of the particular case, but I emphasise that the way in

which a plea of guilty operates in breach proceedings will usually be
different from its operation when sentence is imposed at first instance. This

will include the extent to which, from a practical point of view, the plea has
assisted in the administration of justice. Most breach proceedings are
relatively straightforward and proof of a breach would engage relatively
little time and resources.

1. In the breach proceedings before the Magistrate, no mention was made by

counsel or the Magistrate of the appellant’s plea of guilty. This is not
surprising. It has not been the practice to urge courts in breach proceedings
to have regard to an offender’s plea of guilty. Rather, emphasis tends to be

placed upon the circumstances of the breach and the offender’s progress or

otherwise by way of rehabilitation. In most cases, the fact of the plea of
guilty would add little, if any, weight to the plea in mitigation.

1. Although the Magistrate did not specifically refer to the plea of guilty, a

reading of his Honour’s remarks in their entirety demonstrates that his
Honour was well aware of the appellant’s good progress in his rehabilitation

and of the positive matters of mitigation. It is clear that his Honour’s
favourable view of the appellant caused his Honour significant anxiety

because he was facing the prospect of making an order that would require
the appellant to serve three months imprisonment. The fact of the plea did

not add any weight to the matters of mitigation. Nor did it possess any
significant weight in determining whether the home detention order should
be revoked.

1. In the particular circumstances, if the Magistrate did not take into account

   the plea of guilty that failure was of no consequence and no miscarriage of

   justice has occurred by reason of it. This ground of appeal is not made out.

   Alternative to Revocation

2. Ground 4 complains that the Magistrate failed to properly consider the

alternative of extending the home detention order rather than revoking it. I
do not agree. When regard is had to the sentencing remarks as a whole, it is

apparent that the Magistrate gave anxious consideration to the possibility of
not revoking the home detention order. His Honour had regard to all
relevant circumstances and reached the view that declining to revoke the
order and extending its period of operation was not an appropriate course.
This view was open to his Honour. It was in the context of having decided

that extension was not an appropriate disposition that his Honour spoke of

the options being limited to restoring or not restoring the sentence.

1. The views I have expressed are also relevant to ground 6 which is a

complaint that the revocation of the home detention order and restoration of
the three month sentence was a manifestly excessive result.

1. As at 11 December 2008, the appellant had completed four months on home

   detention and he was facing an additional three months in prison. This dual

   aspect of the penalty is a necessary consequence of the sentencing scheme and the express words of s 48(6). Nevertheless, regard must be had to the overall result in determining whether that result is manifestly excessive.

   Notwithstanding significant matters of mitigation, against the background of

   the previous breach of the home detention order, in my opinion it was within

   the range of the Magistrate’s discretion to order that the home detention

order be revoked. As at the time of revocation on 11 December 2008, while
the resulting total penalty was severe, it was not manifestly excessive.

Partial Suspension

1. Ground 5 raises an issue not previously determined. The appellant

submitted that when the Magistrate revoked the home detention order,
notwithstanding that s 48(6)(b) provides that upon revocation “the offender
must be imprisoned for the term suspended …”, nevertheless the Magistrate
retained a discretion to wholly or partially suspend the original sentence.

1. Section 48 of the Sentencing Act sets out the circumstances in which an

offender will breach a home detention order and the consequences of a
breach. Subsection (6) is as follows:

“(6) Where a court is satisfied that an offender has breached a home

detention order, subject to subsection (9) -

(a)	if the order is still in force, the court must revoke the order; and
(b)	whether the order is revoked under paragraph (a) or is otherwise no longer in force, the offender must be imprisoned for the term suspended by the court on the making of the order as if the order had never been made and despite any period that the offender may have served under the order.”

1. Section 48(9) identifies the circumstances in which the court may decline to

   revoke a home detention order and direct that the order continue in force with, or without, a variation of the conditions of the order. The terms of subs (9) are not relevant for present purposes.

[38]   The first difficulty facing the appellant’s construction is the sentencing

scheme created by the legislation, coupled with the wording of s 48(6). The
Sentencing Act provides a range of sentencing options which, in general

terms, are set out in s 7. They range from proceeding without recording a

conviction and dismissing the charge to recording a conviction and ordering
that the offender serve a term of imprisonment. Two of the options provided

by s 7 are to order that the offender serve a term of imprisonment that is

suspended wholly or partly or is suspended on the offender entering into a
home detention order.

1. The two forms of suspended sentence are separate and distinct “sentencing

regimes”.[1] The power to impose a suspended sentence without home
detention is found in Div 5(1) of the Sentencing Act. The provisions in

subdiv (1) also deal with breaches of suspended sentences. Significantly,
the specific powers conferred on a court to deal with a breach of a
suspended sentence include restoring the whole or only part of the sentence
held in suspense.

1. Home detention orders are dealt with in subdiv (2) of Div 5. Section 44(1)

   provides that a court which sentences an offender to a term of imprisonment

   “may make an order suspending the sentence on the offender entering into a

   home detention order …”. In other words, before a home detention order is

made, the sentencing court has undertaken a sentencing exercise that
involves determining that a sentence of imprisonment is required but should

be suspended. The option of suspending the sentence imposed has not only

been considered, it has been exercised.

1. The consequences of a breach of a home detention order imposed as a

   condition of suspending a sentence of imprisonment are dealt with in s 48. Subsection (9) provides an option of allowing the home detention order to

continue in force with or without variations of the conditions attached to the
order. However, if the power contained in subs (9) is not exercised, and if
the home detention order is still in force, subs (6) directs that the court
“must revoke the order” and the offender “must be imprisoned for the term

suspended by the court on the making of the [home detention] order as if the [home detention] order had never been made and despite any period that the

offender may have served under the [home detention] order”.

1. The language of s 48(6) is plain. In the context of a previous order

suspending service of a term of imprisonment, upon revocation of a home
detention order the offender “must be imprisoned” and imprisoned “for the

term suspended”. Further, the offender must be imprisoned for the term

suspended as if the home detention order “had never been made” and
“despite any period of home detention that the offender may have served

under” that order. According to the plain meaning of the words in subs (6)
in the context in which they appear and in the context of the sentencing

scheme in its entirety, an offender having received the benefit of suspension
of service of a term of imprisonment upon condition involving home
detention, when that condition is breached and the court determines to

revoke the home detention order, the only option available to the court is the
direction of the legislature that the offender “must be imprisoned for the

term suspended”. Unlike the express provision in s 43 that enables a court

to partially restore a sentence previously suspended without home detention,

s 48(6) contains no express alternative to imprisonment for the term
suspended.

[43]   Notwithstanding these difficulties, counsel for the appellant contended that

upon revocation the court is empowered to suspend service of the suspended
term. The power to do so, argued counsel, is found in s 40(1) which is in
the following terms:

“A court which sentences an offender to a term of imprisonment of
not more than 5 years may make an order suspending the sentence
where it is satisfied that it is desirable to do so in the circumstances.”

1. The appellant submitted that when a home detention order is revoked and an

offender is imprisoned for the term suspended, the court “sentences” the
offender to a term of imprisonment for the purposes of s 40. This
proposition is said to follow from the decision of the Northern Territory

Court of Criminal Appeal in R v Haji-Noor[2] in which it was held that upon

restoration of a suspended sentence (not involving a home detention order),
a court imposes sentence for the purposes of s 53 of the Sentencing Act.
Section 53 requires that if the sentence is for 12 months or longer, the court

shall fix a non-parole period.

1. The wording of s 53 directs that a non-parole period be fixed “where a court

sentences an offender to be imprisoned” for 12 months or longer (that is not
suspended in whole or in part). As Southwood J pointed out in Haji-Noor,
“sentence” is not defined in the Sentencing Act and has a variety of

meanings which depend upon the context in which the word is used. His Honour agreed with Riley J that the fixing of a non-parole period and the

availability of parole “are integral parts of the sentencing options available
to a court” and it would be “most unlikely that the legislature intended to

deprive a prisoner of the possible benefit of parole where a court restores a

sentence or a portion of a sentence that has been held in suspense”.[3]
Mildren J expressed the same view as to the intention of the legislature and

Thomas J observed that the entitlement to consideration of the fixing of a non-parole period “should not be taken away in the absence of a clear statement to that effect in the legislation”.[4]

1. In R v Amesz,[5] the offender was before Riley J in relation to a breach of a

   home detention order imposed as a condition of suspending a sentence of

   two years imprisonment. Although his Honour determined not to revoke the

   home detention order and ordered that it be extended by one month, his

   Honour considered the question of whether, should he revoke the order and

   the offender be imprisoned for two years, he should fix a non-parole period

   pursuant to s 53. In reaching the conclusion that a non-parole period should

   be fixed, after referring to the judgments in Haji-Noor and the policy of the

   legislation with respect to the fixing of non-parole periods, his Honour said:

   “However, the position is tolerably clear. In relation to a breach of
   the terms of a home detention order an offender ‘must be imprisoned’
   as if the order had never been made. A court sentences the offender
   to be imprisoned ‘for the term suspended by the court on the making
   of the order’. That being so, the parole provisions of the Act, and in
   particular section 53, have application. Whilst the Court cannot
   revisit the head sentence because of the terms of the section, a non
   parole period may be fixed in an appropriate case because the
   imposition of the sentence is the first occasion on which that
   question falls to be considered: R v Bice (2002) 2 VR 364 at
   paragraph 16.”

2. Riley J referred to the question as to whether the restored sentence of two

   years could be partially suspended pursuant to s 40 but, as the matter had

not been fully considered, expressly declined to comment on whether such a
course was available.

1. In my opinion, when a court revokes a home detention order and s 48(6)

operates to direct that the offender must be imprisoned for the term
suspended, a court is not sentencing the offender for the purposes of s 40.
First, s 48(6) does not direct the court to “sentence” the offender to the term

suspended. It directs that the offender “must be imprisoned for the term
suspended”. In this context I note that s 53 operates to require the fixing of
a non-parole period “where a court sentences an offender to be imprisoned”
for 12 months or longer. Section 40 applies where a court “sentences an

offender to a term of imprisonment” of not more than five years.

1. Secondly, as Riley J pointed out in Amesz, when a suspended sentence is

   imposed, with or without a home detention order, no consideration is given

   to the question of a non-parole period because a non-parole period cannot be

   imposed when a sentence is suspended. In these circumstances, as the

   judgments in Haji-Noor reveal, given the importance of the non-parole

   period in the sentencing scheme, when a suspended sentence is restored

   there are strong policy considerations favouring a construction that permits

a court to fix a non-parole period in respect of the restored sentence. The
same considerations do not apply, however, to the question of whether a
court can wholly or partially suspend a sentence restored following
revocation of a home detention order. As I have said, the power to suspend
has already been considered and exercised. In these circumstances there are

strong policy considerations favouring a construction that does not permit a
court to consider suspension, wholly or in part, for a second occasion. As
Callaway JA observed in R v Bice,[6] “The concept is a suspended sentence,

not suspended sentencing”.

1. In Bice, the offender had been sentenced to a period of imprisonment which

   was wholly suspended. Following a breach of the suspended sentence, the Judge restored the sentence but ordered that the respondent serve it by way

   of intensive correction in the community (“an intensive correction order”). The Crown appealed on the basis that the order amounted to a variation of

   the sentence held in suspense and, once restored, necessarily the sentence

   had to be served in prison.

2. In a judgment with which Ormiston JA and Smith AJA agreed, Callaway JA drew a distinction between fixing a non-parole period on restoration of a

sentence and varying a sentence following breach of suspension by allowing
service of the sentence through an intensive correction order. His Honour
observed that on restoration of a sentence, although the head sentence
cannot be revisited, “a non-parole period may be fixed in an appropriate
case, because the restoration of the sentence is the first occasion on which
that question falls to be considered”.[7] By way of contrast, his Honour noted

that if the task of sentencing at first instance is “properly performed, there is

no occasion to perform it again or to reconsider the sentencing disposition
on breach”. This was an explanation for why only limited options were
provided for disposition following breach. His Honour continued:[8]

“It would be anomalous if the judge could engage in resentencing to the limited extent of substituting a combined custody and treatment order or an intensive correction order but no other disposition.”

[52]   These observations apply with force to the circumstances under

consideration. If the appellant’s construction is correct, having revoked the
home detention order and ordered imprisonment for the term previously

suspended, the court could undertake a new sentencing exercise and, for the
second time, fully suspend the sentence or partially suspend it. In the case
of a suspended sentence not involving home detention, specific statutory
authority is given to the court on revocation to partially restore the sentence
held in suspense. No such statutory authority is given upon revocation of a

home detention order. To permit the question of suspension to be revisited

would be contrary to the very firm terms in which s 48(6) is expressed, namely, that the offender “must be imprisoned for the term suspended”.

1. In my opinion, the conclusion I have reached is supported a consideration of

   the statutory scheme which provides two distinct sentencing regimes.

   Section 40 is in subdiv (1) of Div 5, which subdiv is concerned with

suspended sentences that do not involve a condition of home detention. As
the Full Court observed in O’Brien, the separate and distinct sentencing
regimes found in subdivs (1) and (2) of Div 5 of the Sentencing Act “are not
intended to operate together”.

1. In addition, the conclusion I have reached accords with the view expressed

   by Mildren J in Arnold v Trenerry[9] when his Honour referred to the need for

care in fixing the length of the head sentence, suspended on home detention,
because the offender might be required to serve the whole of that sentence.

His Honour said:[10]

“Nevertheless, because of the rigorous consequences of a revocation
order, and the fact that except in the circumstances envisaged by
s 48(9) a court is bound to revoke a home detention order upon proof
of a breach of the order, the court imposing the order must be careful
to ensure that the consequences of revocation are not too draconian,
and this is best gauged by considering the length of the order, the
length of the head sentence and the fact that the whole period of
home detention can be served yet the offender may still be required
to serve the whole of the sentence held in suspense. Where the
period of home detention exceeds the head sentence, the larger the
gap between the head sentence and the period of home detention, the
more likely it is that the punishment will be excessive.”

1. For these reasons, once the Magistrate revoked the home detention order, in

my opinion his Honour was left with no option but to order that the
appellant be imprisoned for three months. The Magistrate did not possess
the power to wholly or partially suspend the restored sentence.

1. Upon the hearing of the appeal, the appellant was given leave to add a

   further ground of appeal that the Magistrate failed proper to consider the

application to review the home detention order pursuant to s 47 of the
Sentencing Act. Section 47 provides that on application by the Director of

Correctional Services or the offender, “having regard to circumstances

which have arisen or become known since the home detention order was
made”, the Court may:

“(a) discharge the order;

(b)

revoke the order and –

(i)	confirm the sentence of imprisonment imposed on the offender; or
(ii)	order that the sentence of imprisonment be quashed and deal with the offender as if the offender had come before the court for sentence for the offence in respect of which the home detention order was made; or

(c)

vary the terms and conditions of the order including, subject to subsection (5), the period the order is to remain in force.”

1. At the conclusion of submissions before the Magistrate by counsel for the

appellant, in substance the prosecutor submitted that his Honour should
revoke the home detention order. Almost as an afterthought, counsel for the
appellant sought to raise “one more matter” and submitted it was open to the
Magistrate to review the home detention order under s 47 to determine

“whether or not this order is entirely, the length of the order and the

conditions of that order are entirely appropriate to this particular case”.
After discussion about the onerous nature of the order of home detention and

the requirement that an offender not consume alcohol, the Magistrate stated

that he would not consider an application for review under s 47.

1. Counsel for the appellant did not invite the Magistrate to discharge the home

   detention order. The emphasis was on the possibility of variation in some

way as to avoid restoration of the sentence. The Magistrate declined the
application and I am unable to say that it was beyond the proper range of his
Honour’s sentencing discretion to do so.

Home Detention Bail

1. For the reasons I have given, in my view the individual grounds of appeal

are not made out. However, there is an added complication that arose
following revocation of the home detention order when the appellant

instituted the appeal to this Court. Immediately after instituting the appeal,

the appellant applied for bail and was granted bail by the same Magistrate

on condition that he continue to comply with the terms of the home
detention order. In substance, therefore, although the home detention order

was revoked on 11 December 2008, the appellant has continued to be subject
to home detention and will continue to be on home detention until the

disposal of this appeal.

1. At the time of delivery of these reasons, the appellant will have served

almost eight months on home detention. In other words, he will have served
five months longer on home detention than the period that the Magistrate

originally regarded as the appropriate penalty.

1. Importantly, if the appellant’s appeal is dismissed and the Magistrate’s order

of revocation of home detention stands, not only will the appellant have
served eight months on home detention, he will then be required to serve an
additional period of three months imprisonment. This would result in
manifestly excessive punishment. As Mildren J observed in Arnold v
Trenerry:[11]

“Where the period of home detention exceeds the head sentence, the
larger the gap between the head sentence and the period of home
detention, the more likely it is that the punishment will be
excessive.”

1. Mildren J expressed that view in the context of his earlier observation to

which I have referred that an offender might be required to serve the entire
period of home detention and the whole of the sentence held in suspense. In

the case of the appellant, by reason of the first extension of the period of

home detention, coupled with the additional period on bail subject to home

detention conditions, to use the expression of Mildren J, the consequences of

revocation would be “too draconian”.

1. In these circumstances, although the individual grounds of appeal have not

   been made out, I have decided to take the exceptional course of allowing the

appeal and setting aside the order of revocation. The Magistrate originally
envisaged that service of three months home detention was sufficient
punishment for the appellant’s criminal conduct. In view of the first breach,

his Honour was of the view that the period on home detention should be

extended to six months. The appellant has served nearly eight months on
home detention and, in all the circumstances, service of that period is more
than ample punishment for the appellant’s offending. In addition strong

reasons exist for allowing the appellant to continue in his employment.
Imprisoning the appellant now would be counterproductive to his

rehabilitation and would undermine the primary purpose of protecting the
public today and in the future.

1. For these reasons, the appeal is allowed and the orders of the Magistrate

revoking the home detention order and imprisoning the appellant are set
aside. As there was an application by the appellant before the Magistrate
for a review of the home detention order pursuant to s 47 of the Sentencing

Act, I am able to act upon that application. This requires me to have regard

to circumstances which have arisen since the home detention order was

made, including the fact that the appellant has now been on home detention
for almost eight months.

1. In these circumstances, pursuant to s 47 of the Sentencing Act, the interests

of the community and the interests of justice will best be served by
discharging the home detention order.

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[1] O’Brien v Quin (2003) 13 NTLR 122 at [6].

[2] R v Haji-Noor (2007) 21 NTLR 127.

[3] R v Haji-Noor (2007) 21 NTLR 127 at [197].

[4] R v Haji-Noor (2007) 21 NTLR 127 at [106].

[5] R v Amesz (Unreported, Supreme Court of the Northern Territory, Riley J, 10 August 2007).

[6] (2000) 2 VR 364 at [18].

[7] R v Bice (2000) 2 VR 364 at par 18 at par 16

[8] R v Bice (2000) 2 VR 364 at [15] (citations omitted).

[9] (1997) 118 NTR 1.

[10] Arnold v Trenerry (1997) 118 NTR 1 at 5.

[11] Arnold v Trenerry (1997) 118 NTR 1 at 5.