Lorenzetti v Brennan - [2021] NTSC 64

CITATION:Lorenzetti v Brennan [2021] NTSC 64
PARTIES:LORENZETTI, Christopher John

v
BRENNAN, Alexander

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 14 of 2020
(22013327, 22014875 & 22016657)

DELIVERED:  31 August 2021
HEARING DATE:  4 November 2020
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Appellant:S Robson SC
Respondent:  C Ingles
Solicitors:
Appellant:
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Kel2115
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Lorenzetti v Brennan [2021] NTSC 64

No. LCA 14 of 2020 (22013327, 22014875 & 22016657)

BETWEEN:

CHRISTOPHER JOHN LORENZETTI

Appellant

AND:

ALEXANDER BRENNAN

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 31 August 2021)

This is an appeal against sentences imposed in the Local Court. On 31 July 2020, the appellant was dealt with in the Local Court on five files: files 21935130, 22011953, 22016657, 22014875 and 22013327, for an assault and for various breaches of a non-contact Domestic Violence Order (“DVO”) and two breaches of suspended sentence. The assault and the breaches of DVO all involved the same victim. The sentencing judge handed down the following sentences.
File ending 5130 was a drug matter on which the appellant had been given a suspended sentence. The sentencing judge restored the sentence of 28 days pursuant to s 43 of the Sentencing Act 1995 (NT) (“Sentencing Act”) and backdated it to 21 April. This was not the subject of any appeal.
File ending 1953 related to an earlier breach of the DVO for which the appellant had been given a sentence of 21 days imprisonment suspended after three days, on 14 April 2021. The sentencing judge restored the suspended sentence pursuant to s 43 and also backdated that sentence to start on 21 April. This was not the subject of any appeal.[1]
On file ending 6657 the appellant was sentenced on two counts, one count of aggravated assault against the victim, committed on 26 December 2019 (count 1) for which the appellant was sentenced to eight months imprisonment starting on 21 April and one breach of the DVO (count 3) committed on 7 February, on which he was sentenced to two months imprisonment to be served cumulatively with the sentence on count 1. The facts on the breach of the DVO were that on 7 February 2020, the victim was at the appellant’s house. They had a verbal argument and the victim called her mother and asked her to come and pick her up. She was crying and upset. The appellant did not appeal against the sentence for the aggravated assault. He did appeal against the sentence for the breach of the DVO.
On the file ending 4875, which occurred on 17 March, the appellant was convicted of breaching the DVO and sentenced to four months imprisonment to be served cumulatively on the sentence file ending 6657 as required by the legislation.[2] The facts were similar to the facts of the previous breach on 7 February. The victim was at the appellant’s house. They were drinking together and had an argument. The appellant appealed against this sentence.
On the file ending 3327, the appellant was sentenced on four counts (counts 1, 2, 4 and 8), for offending that occurred on 26 March, 14 April, 19 April and 6 May 2020.
On count 1, a breach of the DVO on 26 March 2020, the appellant was sentenced to two months imprisonment, to be served cumulatively on the sentences for the earlier offending. The facts of the breach were that the appellant and the victim were seen by the victim’s father talking to each other on a street corner. The appellant appealed against this sentence.
On count 4, the breach of the DVO on 14 April, he was sentenced to six months imprisonment, again to be served cumulatively. The facts of this offending were not made known to the court on the appeal.[3] The appellant did not appeal against this sentence.
On count 2, the breach of the DVO on 19 April, he was sentenced to four months imprisonment, again to be served cumulatively. The facts were that the appellant and the victim were seen in public yelling at each other. The appellant appealed against this sentence. That appeal has since been withdrawn in light of the Full Court’s decision relating to the number of notices of appeal required.
On count 8, attempting to breach the DVO, he was sentenced to two months imprisonment again to be served cumulatively. The facts were that the appellant asked an intermediary to pass a letter to the protected person from prison. The appellant appealed against this sentence. That appeal has also been withdrawn in light of the Full Court’s decision relating to the number of notices of appeal required.
This amounted to a total effective sentence of imprisonment for 28 months, suspended after ten months. The sentencing judge fixed an operational period of three years.
The appellant appealed against the following sentences:
(a)file ending 6657:
·     count 3 (offence committed on 7 February) – two months imprisonment;
(b)file ending 4875:
·     count 1 (offence committed on 17 March) – four months imprisonment;
(c)file ending 3327:
·     count 1 (offence committed 26 March – two months imprisonment;
·     count 2 (offence committed 19 April) – four months imprisonment;
·     count 8 (offence committed 6 May) – two months imprisonment.
No complaint is made about the individual sentences for the aggravated assault, for which the appellant was sentenced to imprisonment for eight months; the breach of one domestic violence order, for which the appellant was sentenced to imprisonment for six months; or the restored suspended sentences.
In the Notice of Appeal, the appellant contends, on Ground 1, that the individual sentences the subject of the appeal are manifestly excessive and thus resulted in a total effective sentence that was manifestly excessive.
On Ground 2, the appellant contends that the sentencing judge erred by failing to apply, or failing to apply properly, the principle of totality.
Ground 2:
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) (“Domestic and Family Violence Act”) 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.[4]
The appellant relied on Mill v The Queen[5] 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.[6]
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.[7]
As the view held by both appellant and respondent (and applied by the sentencing judge) was potentially in conflict with the decision of the Court of Criminal Appeal in TRH v The Queen,[8] the following question was reserved for the opinion of the Full Court:
QUESTION 1: When the Court is applying s 121(7) of the Domestic and Family Violence Act in sentencing an offender for a breach of a DVO and another offence or offences, is the court obliged to give effect to the totality principle by lowering the individual sentences below what would otherwise be appropriate?
The Full Court answered that question in the following terms.
(a) Section 121(7) of the Domestic and Family Violence Act does not entirely abrogate the principle of totality.
(b) Section 121(7) does prevent the principle of totality from being applied by means of making the sentences for breaches of DVOs concurrent or partially concurrent with other sentences.
(c) However, in cases where there are other charges not subject to the restriction in s 121(7), for example, more than one assault charge, the sentencing court should, where it is appropriate, give effect to the totality principle by ordering concurrency or partial concurrency of those other sentences.
(d) A sentencing court should also give effect to the principle of totality, where it is appropriate, by reducing the sentences to the lower end of the appropriate range of sentences for the particular offences.
(e) It is not permissible for a sentencing court 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 s 121(7).
In light of this answer, the appellant sought and was given, leave to withdraw Ground 2.
Ground 1:
As a preliminary issue, the respondent contended that the appeal was incompetent as the appellant had filed only one notice of appeal whereas, the respondent contended, three notices of appeal were required – one in relation to each file on which the sentences were being appealed. As there had been conflicting statements of principle in decisions of this Court on the question of whether separate notices of appeal are required when an appellant wishes to appeal against a sentence imposed in relation to a number of matters which were heard together, the following question was referred to the Full Court:
QUESTION 3: Is the appeal incompetent in relation to some or all of the offences the subject of the appeal as a consequence of only one notice of appeal having been filed?
The Full Court answered that question in the following terms.
(a) Separate notices of appeal were required in relation to the appeal against each of the sentences imposed.
(b) The appellant has filed three notices of appeal by filing three identical notices, one copy of which was placed on each of the three files. Whether this is sufficient will depend upon whether the appellant is purporting to appeal against three separate sentences or five separate sentences.
As separate sentences were imposed in relation to each of the breaches of the DVO, five notices of appeal were required. The Full Court determined that the appellant had in fact filed three notices by copying one notice of appeal and filing a copy on each of the three files. Accordingly, the appellant has sought leave to amend the notices of appeal by deleting references to sentences other than:
1.    The sentence imposed on file 22016657 in relation to count 3 (offending on 7 Feb 2020, 2 months’ imprisonment);
2.    The sentence imposed on file 22014875 in relation to count 1 (offending on 17-18 Mar 2020, 4 months’ imprisonment); and
3.    The sentence imposed on file 22013327 in relation to count 1 (offending on 26 March 2020, 2 months’ imprisonment).
Leave to amend the notices of appeal in this fashion is granted.
History of the proceeding
On 26 December 2019, the appellant committed a serious assault on the victim resulting in numerous areas of bruising. The assault had been preceded by the appellant going to the victim’s home, where she lived with her parents, and leaving multiple abusive notes in her room. This is the assault for which the sentencing judge sentenced the appellant to eight months imprisonment (on file ending 6657), which was not the subject of an appeal.
On 20 January 2020, a full non-contact DVO was imposed on the appellant, naming the victim of these offences as the protected person.
Thereafter, between the time the DVO was put in place and the proceedings before the Local Court on 31 July 2020, which are the subject of this appeal, the appellant committed seven breaches of that DVO, on 7 February, 17 March, 26 March, 11-24 April, 14 April, 19 April and 6 May 2020. The sentences for five of those breaches were initially the subject of this appeal. That has now been reduced to three.
The principles governing appeals of this nature are well known.
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 upon 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.[9]
In determining whether a sentence is manifestly excessive, an appeal court must consider the maximum penalty for the offence, the objective seriousness of the offence on the scale of seriousness for that particular offence, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[10]
The only information the court has about the personal circumstances of the appellant is that he was 50 years old at the time of the offending, had been educated to year 10 and had a solid work history, and was on a disability pension as a result of a physical injury. There is no suggestion of any cognitive or mental impairment. The respondent submitted that there being nothing to suggest the appellant was suffering from any disability which might affect his ability to comply with the terms of a DVO, the sentencing judge was entitled to consider that the breaches were the result of deliberate and intentional conduct on the part of the appellant, who must be taken to have had a complete understanding of the terms of the order.
Counsel for the appellant contended that the offences in count 3 on file ending 6657 (committed on 7 February) and count 1 on file ending 4875 (committed on 17 March) were constituted by a failure by the appellant to remove himself from his own home, thereby remaining in the victim’s company, and that this is at the lowest end of the scale of seriousness for offences of this nature. That description of the offence may accurately describe the actual act (or rather omission) which constituted the offences: it does not describe the context in which those offences took place. The immediate context presumably included the fact that the appellant allowed the victim to come into his house. It also included (on count 3 of file ending 6657) the fact that they were arguing and that the victim was crying and upset when she called her mother; and (on count 1 on file ending 4875) that they were arguing and had been drinking together.
I agree with the submission by counsel for the respondent that the sentencing judge was entitled to assess the objective seriousness of the offending by reference to the broader context of the relationship between the appellant and the victim. That includes the fact that the DVO was put in place following a serious assault committed by the appellant on the victim resulting in physical injury in the form of multiple bruises; the physical frailty of the victim; the age difference between them (he was 50, she was in her 20s); the fact that immediately before assaulting the victim on 26 December 2019, the appellant had gone to her house where she lived with her parents, and had left multiple abusive notes in her bedroom – demonstrating to her that she was not safe, even in her parents’ house. (In relation to count 1 on file ending 4875, committed on 17 March, it also included the fact of the earlier offending on 7 February.)
Counsel for the appellant submitted that the sentencing judge was not entitled to take these matters into account because the assault, and the abusive notes or messages that occurred prior to the assault in December, were taken into account to assess the objective gravity of the assault, and if the court were to take those facts into account again in assessing the objective gravity of the breaches of the DVO in February and March, that would be effectively double-counting and double-punishing the appellant. I disagree. The sentencing judge was entitled to take into account the whole of the circumstances of the offending which includes the nature of the relationship and the conduct that gave rise to the DVO being put in place, in assessing the objective seriousness of the conduct which constituted the breach of the DVO in each instance.
Counsel for the appellant noted that the sentencing remarks did not indicate that the sentencing judge took these matters and the nature of the relationship between the appellant and the victim into account when determining the sentences to be imposed. True, the sentencing judge did not specifically state that he took those matters into account, but it cannot be assumed that he did not. They were relevant considerations and can be taken into account when assessing whether the sentences imposed were manifestly excessive in all of the circumstances.
The sentencing judge was also entitled to take into account the fact that each offence was not an isolated incident, but rather was part of a pattern of conduct on the part of the appellant in persistently continuing to maintain contact with the victim in breach of the non-contact DVO, conduct which included a breach of the DVO consisting of 522 phone calls to the victim with aggressive and abusive language between 11 to 24 April 2020 – after the breaches the subject of this appeal, but before the matters were dealt with by the sentencing judge.
Counsel for the appellant contended that the offences in question were “no harm” breaches of DVO and, as such, were at the lower end of the scale of seriousness for offences of this kind.
Section 121 of the Domestic and Family Violence Act provides as follows.
(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.
By the time the appellant was sentenced for these matters in the Local Court, on 31 July 2020, the appellant had previously been found guilty of a DVO contravention offence on 14 April 2020. However, all but one of the breaches of DVO for which he was sentenced on 31 July 2020 occurred before that finding of guilt. The breach of the DVO in count 1 on file ending 3327, occurred on 19 April 2020, after the finding of guilt on 14 April and so attracted the provisions of s 121(2), but it is no longer the subject of this appeal. The attempted breach on 6 May 2020 was charged as an attempt and was not subject to the provisions of s 121 of the Domestic and Family Violence Act. None of the three offences the subject of this appeal fall within s 121(2).

However, it has been suggested that in enacting s 121(2), the legislature contemplated that a sentence as low as seven days imprisonment might be appropriate even in cases in which the protected person suffered harm. By that standard, sentences of two months imprisonment and four months imprisonment in relation to offences in which the protected person did not suffer harm might be said, ipso facto, to be manifestly excessive.
Such a contention cannot be accepted. The objective seriousness of a breach of a DVO is a matter to be assessed taking into account the whole of the circumstances, including the nature of the breach, and the context in which it occurred, the conduct which gave rise to the DVO being put in place, the overall nature of the relationship, and any prior breaches of the DVO whether or not they had already been dealt with at the time – that is to say, whether or not they technically fell within the provision in s 121(2). (That does not mean that such prior breaches enliven the provisions of s 121(2), simply that they are relevant matters to be taken into account when considering the objective seriousness of the breach under consideration.)
Given the wide range of relevant considerations, some “non-harm” breaches may well be more serious than some breaches where harm has been caused to the protected person. A wide variety of things can constitute harm. Under s 4 of the Domestic and Family Violence Act, “harm” is defined by reference to s 1A of the Criminal Code which defines “harm” in the following terms:
(1)     Harm is physical harm or harm to a person’s mental health, whether temporary or permanent.
(2)     Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.
(3)     Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.
(4)     Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community. [emphasis by underlining added]
Further, the mandatory minimum of seven days imprisonment specified under s 121(2) is just that – the minimum – no doubt specified keeping in mind the fact that some breaches where harm is caused may be relatively minor.
The three sentences under appeal are considered in the order in which they took place.
Count 3 on file ending 6657, the breach on 7 February 2020, was the first breach of the DVO. However, it occurred a little over a month after the appellant had committed a serious assault on the victim resulting in numerous areas of bruising, which had been preceded by the appellant going to the victim’s home, where she lived with her parents, and leaving multiple abusive notes in her room. What is more, on 7 February, the two had been arguing and when the victim called her mother to come and pick her up, she was crying and upset. While this may be considered to be towards the lower end of the scale of seriousness for breaches of a DVO, the maximum sentence for that offence is imprisonment for two years. A sentence of two months is towards the lower end of the range of available sentences and is not manifestly excessive.
Count 1 on file ending 4875 occurred on 17 March, a little over a month after the first breach and involved similar conduct. Given that it was the second breach of the DVO, notwithstanding that the appellant had, at that stage, not been dealt with by the court for the first breach, the sentencing judge was entitled to take into account that the appellant was continuing to flout the terms of the court’s order. In those circumstances a sentence of four months imprisonment (one sixth of the maximum penalty) was not manifestly excessive.
Count 1 on file ending 3327 occurred on 26 March, nine days after the breach on 17 March. In those circumstances, despite the fact that the breach consisted of talking to the protected person on the street, the sentencing judge was entitled to take the view that the appellant’s conduct demonstrated a continuing attitude of disobedience to the court’s order. This view would have been reinforced by the fact that by 31 July, when the matter came before the sentencing judge, the appellant had gone on to commit four more breaches of the DVO, three of which he was dealing with at the same time and for one of which the appellant had been dealt with on 14 April and given a suspended sentence which he went on to breach. In those circumstances, a sentence of two month’s imprisonment (one twelfth of the maximum penalty) can hardly be considered manifestly excessive.
The individual sentences under appeal are not manifestly excessive and the total effective sentence is not manifestly excessive. The appeal is dismissed.
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[1] The sentencing judge accepted the defence submission that it was possible to make the restored sentence for breach of the DVO concurrent with the sentences imposed on 31 July 2020, despite the provisions of s 121(5), because the appellant was being sentenced under s 43 of the Sentencing Act (restoration of a suspended sentence). Whether this is so is a moot point, but it does not arise for determination on this appeal.

[2] Domestic and Family Violence Act2007 (NT) s 121(7)

[3] There is, however, a reference in the respondent’s written submissions to a breach of the DVO by making 522 phone calls to the victim with aggressive and abusive language between 11 to 24 April 2020. It seems reasonable to suppose that this was the breach for which he received a sentence of imprisonment for six months.

[4] Appellant’s submissions at [16]

[5] (1988) 166 CLR 59

[6] Respondent’s submissions at [13]

[7] Transcript of 31 July 2020 at p 4

[8] [2018] NTCCA 14 at [14]-[16]

[9] Edmond and Moreen v The Queen [2017] NTCCA 9 at [4] (“Edmond”) and the cases cited therein

[10] Ibid at [30]; Phan v Western Australia [2014] WASCA 144 at [19]