Lorenzetti v Brennan

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.