Lorenzetti v Brennan

Case [2021] NTSCFC 3

CITATION:Lorenzetti v Brennan [2021] NTSCFC 3

PARTIES:LORENZETTI, Christopher John

v

BRENNAN, Alexander

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  ON REFERENCE from the Supreme Court exercising Territory jurisdiction

FILE NO:LCA 14 of 2020 (22013327); LCA 15 of 2020 (22014875); LCA 16 of 2020 (22016657)

DELIVERED:  21 May 2021

HEARING DATE:  3 December 2020

JUDGMENT OF:  Southwood, Kelly JJ and Riley AJ

CATCHWORDS:

Referral of questions of law to the Full Court of the Supreme Court pursuant to s 21(1) of the Supreme Court Act

Section 121(7) of the Domestic and Family Violence Act provides that the court must not direct a term of imprisonment imposed for a breach of a domestic violence order to be served concurrently with another sentence of imprisonment for any other offence – when sentencing an offender under s 121(7) for breach of a domestic violence order and another offence is the court obliged to give effect to the totality principle by lowering the individual sentences below what would otherwise be appropriate – held s 121(7) does not entirely abrogate the totality principle – the totality principle may be given effect by making sentences for other offences partially concurrent or by reducing sentences to the lower end of the appropriate range for the particular offences – held further to lower the sentences below what would be appropriate for the objective seriousness of the particular offending would be to adopt impermissible artificial measures for the purpose of subverting the intention of the legislature expressed in s 121(7)

Section 121(5) of the Domestic and Family Violence Act provides that in sentencing an offender for a second or subsequent offence of contravening an domestic violence offence the court must not make an order which would result in the offender being released from the requirement to actually serve the term of imprisonment imposed – appellant sentenced to imprisonment for 28 months suspended after 10 months for a number of offences including second or subsequent breaches domestic violence orders – amount of time required to actually serve under s 121(5) and other mandatory sentencing provision was nine months – held the plain meaning of s 121(5) is to prohibit the court from suspending any part of a sentence for a second or subsequent offence of breaching a domestic violence order – the sentence imposed does not contravene that subsection provided the sentence for the subsequent breach of a domestic violence order was ordered to be served before any period of suspension

Section 163 of the Local Court (Criminal Procedure) Act confers a right of appeal to the Supreme Court from a conviction, order, or adjudication of the Local Court on certain grounds – conflicting Supreme Court authorities on whether a separate notice of appeal is required in relation to each order appealed from or each file or complaint – held that a separate notice of appeal is required in relation to each sentence or other order appealed from

Domestic and Family Violence Act

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Lorenzetti v Brennan [2021] NTSCFC 3
Case
[2021] NTSCFC 3
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of the Northern Territory considered three questions of law referred by a judge of that court. The questions arose from an appeal against a sentence imposed by the Local Court. The appellant had pleaded guilty to aggravated assault, multiple counts of contravening a domestic violence order (DVO), and attempting to contravene a DVO. He received a total effective sentence of imprisonment, suspended after a period, with two previously suspended DVO breach sentences ordered to be served concurrently. The appeal concerned the sentencing judge's alleged failure to properly apply the totality principle and the interpretation of provisions relating to mandatory non-concurrent sentencing for DVO breaches, as well as the procedural requirement for notices of appeal.

The court was required to determine whether section 121(7) of the Domestic and Family Violence Act 2007 (NT), which prohibits the concurrent service of imprisonment for a DVO breach with another offence, entirely abrogates the totality principle. It also needed to consider the meaning of section 121(5) of the same Act, which prohibits the suspension of imprisonment for a second or subsequent DVO contravention, and whether the sentence imposed complied with this provision. Finally, the court had to resolve conflicting authorities on whether a separate notice of appeal is required for each order appealed from or for each file or complaint.

Regarding the totality principle, the court held that section 121(7) does not completely displace it. The totality principle can still be given effect by making sentences for other offences partially concurrent or by reducing the individual sentences for DVO breaches to the lower end of the appropriate sentencing range. However, the court cautioned that lowering sentences below what is objectively warranted by the seriousness of the offending would be an impermissible artificial measure to subvert the legislative intent of section 121(7). On the issue of section 121(5), the court found that its plain meaning prohibits suspending any part of a sentence for a second or subsequent DVO breach. The sentence imposed was permissible as long as the DVO breach sentence was ordered to be served before any period of suspension. Concerning the notices of appeal, the court affirmed the long-standing Northern Territory precedent requiring a separate notice of appeal for each sentence or order being appealed, rather than for each file or complaint.

The court concluded that a separate notice of appeal is required in relation to each sentence or other order appealed from. The court agreed with the respondent's contention that while the totality principle is not abrogated by section 121(7), its application is limited to ordering concurrency of other sentences and reducing DVO breach sentences to the lower end of the appropriate range. Imposing inadequate individual sentences to achieve totality in the face of a legislative prohibition on concurrency would subvert the legislative intention.

Orders

Orders of the court

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Background

Background to the litigation

A judge of the Supreme Court seized of an appeal against a sentence of the Local Court has referred three questions of law to the Full Court of the Supreme Court pursuant to s 21(1) of the Supreme Court Act 1979 (NT).Background On 31 July 2020, the appellant pleaded guilty to one count of aggravated assault, five counts of contravening a Domestic Violence Order (“DVO”), and one count of attempting to contravene a DVO. He was sentenced to a total effective sentence of imprisonment for 28 months, suspended after 10 months with an operational period of two years. In addition, two suspended sentences, also for breaching DVOs, were restored and ordered to be served concurrently with the fresh sentences. No complaint is made about the individual sentences for the aggravated assault, for which the appellant was sentenced to imprisonment for eight months or the breach of one domestic violence order, for which the appellant was sentenced to imprisonment for six months. However, the appellant contends, on Ground 1, that the individual sentences for the other breaches of DVOs are manifestly excessive. (Ground 1 is based largely on factual contentions and is not the subject of this reference.) The appellant contends, on Ground 2, that the sentencing judge erred by failing to apply, or failing to apply properly, the principle of totality. It was not open to the sentencing judge to make any part of any of the sentences concurrent. Section 121(7) of the Domestic and Family Violence Act 2007 (NT) provides:Despite section 50 of the Sentencing Act 1995 , the court must not direct the term of imprisonment to be served concurrently with the other term of imprisonment mentioned in subsection (6)(a) or (b) (ie a sentence of imprisonment for any other offence). However, the appellant contended in written submissions: Subsection 121(7) of the DVFA cannot be taken to completely abrogate such a fundamental sentencing provision as totality. The provision effectively prohibits totality from being applied by making sentences partially or fully concurrent but does not otherwise preclude the achievement of totality by lowering the individual sentences below what would otherwise be appropriate.[1] The appellant relied on Mill v The Queen[2] to the effect that the preferred method of giving effect to the totality principle is to make the sentences partly concurrent but, where that is not practicable, it may be given effect to “by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.” The respondent said, in written submissions:The respondent accepts that the principle of totality is not displaced by the requirement to accumulate the sentences, and that totality can be achieved by reduction of the individual sentences in the situation that accumulation is legislatively required.[3] It appears that the sentencing judge acted on that principle. In sentencing the appellant his Honour said:Due to the nature of the legislation and other authority, I am bound to order some accumulation of these sentences and in fixing that and the period of suspension, I do take into account the overall sentence that I will be imposing upon you today. We do not want to impose a sentence that is crushing in all of the circumstances, but gives you some light at the end of the tunnel.[4]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the other hand, Ms Ingles pointed out that the approach set out in the passage from Bray CJ’s judgment in Elliott v Harris (No 2) would involve the appeal court exercising a discretion whether to allow a single notice of appeal or require separate notices and that is likely to lead to uncertainty and to arguments on almost every appeal where there are multiple convictions, or sentences on multiple files on one notice of appeal, about the exercise of the discretion and the nexus. Ms Ingles submitted that when dealing with an inferior court with a high volume of matters, commonly matters where there are multiple complaints and multiple offences charged on each complaint, it is far more efficient, sensible and certain to have a known and certain requirement for separate notices of appeal. The South Australian approach whereby there is a discretion to allow single notices of appeal in some circumstances, would simply add to the workload of all parties involved, including the court.Conclusion We agree that no sufficient reason exists to justify this Court overturning long standing precedent in the Northern Territory, in Lawrie v Stokes and Federal Commissioner of Taxation v Arnhem Aircraft Engineering, which have been followed in subsequent cases, in order to follow the approach adopted in the South Australian cases. The rationale for requiring separate notices of appeal, clearly articulated in Federal Commissioner of Taxation v Arnhem Aircraft Engineering, is that s 163 of the Justices Act [now the Local Court (Criminal Procedure) Act] gives a right of appeal from "a" conviction, order or adjudication. This requires there to be a separate notice of appeal for every sentence or other order sought to be appealed. This is consistent with Lawrie v Stokes in which Kriewaldt JA said:It follows that if the appellant desired to appeal against all four convictions he was bound to give four separate Notices of Appeal, and similarly if he desired to appeal against two convictions, he was bound to give two separate Notices of Appeal.Although elsewhere in the judgment Kriewaldt JA seemed to focus on the need for separate notices in relation to separate complaints, this was at a time when only one charge could be laid in a complaint. An alternative approach would be to require a separate notice of appeal in relation to matters charged on separate complaints. This was the approach adopted by Kearney J in Reilly v Baker though without explicitly specifying the basis in principle for doing so; and left open as a possibility in Warford v Firth and Court v Armstrong. This Court invited further written submissions from the parties on the following question: Assuming that one notice of appeal was insufficient, was there a requirement for 3 notices or 5 notices, given that the appeal related to 5 charges over 3 files: that is to say, is a separate notice required for each complaint or for each individual order appealed against? Both the appellant and the respondent filed written submissions contending that only three notices were required. The reasons given were similar and can be summed up in the following passage from the submissions of Mr Robson SC for the appellant:[T]here is no good reason to require an individual notice of appeal to be filed in relation to each and every order which is appealed against. Such an approach would only serve to increase the complexity and costs of Local Court Appeals when, in other jurisdictions, the approach has been more focused on allowing the appeal to be dealt with on the merits where there is no significant legal or practicable impediment to doing so.”[39]

Ratio Decidendi

Legal Principle Established

The respondent contends that in light of the evident legislative intention, the only scope for the application of the totality principle when sentencing for breaches of DVOs is for the court to lower the sentences to the lower end of the appropriate range of sentences for the particular offences. It would not be permissible to lower the sentences below what would be appropriate sentences for the objective seriousness of the particular offending. To do so would be to adopt artificial measures for the purpose of subverting the intention of the legislature expressed in the subsection and expounded in the second reading speech. We agree with the respondent’s contention, noting that the High Court in Lee v New South Wales Crime Commission placed a rider on the application of the general principle set out at [14] above:[12]Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. [emphasis added] The Court in Mill made it clear that where it is necessary in order to achieve the objectives of the totality principle, the Court should impose head sentences which might otherwise be considered inadequate, saying:[13]It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries. However, Mill was concerned with a situation in which there was a lack of statutory authority to back date sentences to take into account sentences for related offending imposed in another jurisdiction. It was not concerned, as we are here, with a positive statutory prohibition. There is scope for the application of the totality principle by ordering concurrency of other sentences imposed at the same time (eg sentences for assault) and by reducing the sentences imposed for breaches of DVOs and other sentences imposed at the same time to the lower end of the range of appropriate sentences available given the objective seriousness of the breaches. However, to impose inadequate individual sentences to give effect to the totality principle in the face of the legislative prohibition on concurrency aimed at ensuring offenders serve the sentences imposed and are “locked up for longer” because of their contraventions would, in our view, constitute an illegitimate attempt to subvert the legislative intention of the sub-section.Second Question