Mason v The King - [2024] NTCCA 13

CITATION:Mason v The King [2024] NTCCA 13
PARTIES:MASON, Joshua
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 5 of 2024 (22216553)
DELIVERED:  10 December 2024
HEARING DATE:  6 December 2024
JUDGMENT OF:  Kelly, Brownhill & Burns JJ
CATCHWORDS:

SENTENCING – Appeals – Appeal against sentence – Manifest excess – Whether sentence manifestly excessive – Marked differences between appellant’s sentences and comparative cases – Sentences imposed plainly excessive – Appeal allowed – Unnecessary to consider other grounds – Leave to appeal on those grounds refused.
AB v The King [2023] NTCCA 8, Edmond & Moreen v The Queen [2017] NTCCA 9, Forrest v The Queen (2017) 267 A Crim R 494, Phan v Western Australia [2014] WASCA 144, referred to.

REPRESENTATION:

Counsel:
Appellant:  I L Read SC with J Begbie
Respondent:  L Babb SC with LJ Auld
Solicitors:
Appellant:  Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions

Judgment category classification: B
Number of pages: 36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mason v The King [2024] NTCCA 13
No. CA 5 of 2024 (22216553)

BETWEEN:

JOSHUA MASON
Appellant
AND:

THE KING
Respondent

CORAM: KELLY, BROWNHILL & BURNS JJ
REASONS FOR JUDGMENT
(Delivered 10 December 2024)
THE COURT:

The appellant was 23 years old when he offended. He was sentenced to six years’ imprisonment by the Supreme Court for one count each of hit and run, attempting to defeat the course of justice and improperly interfering with a dead body or human remains. The issues in the appeal are whether the sentence was manifestly excessive or infected by specific error in the misapplication of principles applicable to double punishment.
The offences
Following pleas of guilty, on 13 December 2023, the appellant was convicted of the following charges:[1]
(a)a count of hit and run, committed on 30 May 2022, contrary to s 174FA(1) of the Criminal Code 1983 (NT) (Count 1);
(b)a count of attempting to defeat the course of justice, committed on 30 and 31 May 2022, contrary to s 190 of the Criminal Code (Count 2); and
(c)a count of improperly interfering with a dead body or human remains, committed on 30 and 31 May 2022, contrary to s 140 of the Criminal Code (‘Count 3’).
The maximum penalties for the offences are imprisonment for 10 years for Count 1, imprisonment for 15 years for Count 2 and imprisonment for two years for Count 3.
The sentence
The appellant was sentenced to a total effective sentence of imprisonment for six years, as follows:
(a)three years for Count 1;
(b)five years for Count 2, with 1 year to be served cumulatively upon Count 1; and
(c)one year for Count 3, to be served concurrently with the sentences for Count 1.
It was ordered that the sentence be backdated to 1 June 2022 to take account of time in custody, with a non-parole period of three years and six months.
The appeal
Leave to appeal on the ground of manifest excess was granted by a single Judge.
The appellant also sought leave to appeal on two other grounds, namely that:
(a)the sentencing Judge erred by not approaching the sentencing difficulty of double punishment correctly or sufficiently; and
(b)the sentencing Judge erred in finding that the offence of attempting to defeat the course of justice was a ‘strikingly serious example of offending of that kind’.
At the close of submissions on the hearing, the appeal was allowed on the ground of manifest excess and the appellant was resentenced.
Leave in relation to the other grounds was refused at the hearing.
We indicated that we would publish our reasons. These are our reasons.
The offending
The appellant was jointly charged and sentenced with his mother.
Around six weeks before the offending, the appellant’s driver’s licence was suspended for having no remaining demerit points. He was aware of that around two weeks before the offending.
On 30 May 2022, he went to a local pub, had one alcoholic drink and left at around 7.54pm and drove home.
At around 8pm, the deceased got off a bus on the side of the Stuart Highway and walked towards her home. She was very intoxicated.
At around 9pm, the deceased was walking down the Stuart Highway. She walked on the side of the Highway closest to the median strip, on or next to the white line running along the edge of the northbound road, against the flow of traffic. A number of cars passed her, two of which had to swerve to avoid hitting her. A witness said he could barely see her.
At 9.08pm, the appellant arranged to collect a $50 bag of cannabis from a contact in Palmerston. He left home and drove his car northbound on the Stuart Highway. At about 9.20pm, as he reached a sweeping bend, he collided with the deceased who was in the lane and towards the white line on the edge of the road. She was struck by the front right corner of the appellant’s car and suffered fatal injuries. She died at the time of collision. Her body came to rest six and a half metres from the side of the road in the median strip. Her lower leg was severed from her body and later located on the right lane some distance from her body. The collision caused damage to the car, with debris from the car (wing mirror, fog light cover and head light assembly), and the deceased’s backpack and clothing being thrown onto the road and surrounding areas.
A car driving behind the appellant was struck to the bumper bar by the appellant’s car. The appellant pulled over to the side of the Highway and searched frantically around his car and on the Highway. He called his mother. The driver of the car behind pulled up behind the appellant and got out. The appellant ran past the driver with his phone to his ear, turned and said there had been a hit. He yelled to his mother to come to the location. The driver asked where his mother was coming from and he told her. He also told her he had called Police. He ran down the middle of the Highway, waving his lit phone to signal to other drivers to slow down. He cleared some debris from the road.
Another car was driving down the Highway, saw the appellant waving his phone and pulled over. He said to the occupants of that car that there had been an accident and appeared distressed. They asked if the appellant had called Police but he did not respond. He walked down the road waving his phone again. The driver of the second car pulled up down the Highway where the driver of the first car was on the phone talking to her mother. The driver of the first car said ‘they’ had hit something but she was not sure if it was a person or an animal. She confirmed she was okay and the second car left the scene.
After five minutes, the appellant came back to the driver of the first car and had blood running down his arm. She started to clean his arm with tissues but he walked off. The driver of the first car and the appellant searched the immediate area together but did not find anyone. The appellant retrieved a part of his car’s bumper from under the first car and ran off.
The appellant’s mother borrowed her daughter’s utility, saying her son had hit a dog but she had no fuel in her own car. She left the home at 9.25pm and arrived at the scene a short time later. She parked a short distance from the second car. The driver of the first car asked if everything was okay and the appellant’s mother told her they were fine and she could go. The driver asked if the appellant’s mother had called Police and she told her she had and repeated that the driver could go. The driver of the first car left the scene.
The appellant and his mother searched around the scene for some time. They then both drove to the appellant’s mother’s house. The appellant parked in the driveway and covered the front end of his car to conceal the damage. He told his sister he had hit a dog and the lady behind him hit it too. The appellant’s mother said she would drop the appellant at a friend’s house and they left in the utility.
The above is the offending the subject of Count 1. The following conduct is the offending the subject of Counts 2 and 3.
The appellant and his mother drove back to the scene, parked in the median strip, located the deceased’s body, dragged the body into the tray of the utility and headed towards the appellant’s home, with the appellant’s mother driving. They decided to leave the body in bushland. The appellant’s mother drove to where the road became dirt and the appellant then reversed the utility to the edge of the bush and dragged the deceased from the tray approximately 20 metres into the bush. They used plant material to conceal the body. They left the scene and drove to the appellant’s house. They used a watering can and the appellant’s t-shirt to clean the blood out of the tray. The appellant’s mother then went home.
On 31 May 2022, the appellant’s neighbour gave him a lift towards where the body was. During the drive, the appellant told the neighbour he had hit a dog or a wallaby and damaged his car. He was dropped off near where the body was, but was seen by a friend’s mother so purported to be visiting their house. He was later driven home.
Later that day, the deceased’s leg was seen on the Highway and reported to Police. Police investigated and found the debris from the appellant’s car and the deceased’s property, hair and flesh.
The appellant had various discussions with people, lying to them about having struck an animal in his car. He returned to his friend’s house near where the body was located. The appellant’s mother was told by her daughter that a leg had been found on the Stuart Highway. She called the appellant and they spoke for about seven minutes.
Later that evening, the appellant borrowed his friend’s utility, drove to where the body was located, loaded it into the ute, drove to another location in bushland, unloaded the body, dragged it into the bush and left it in some long grass. He returned the utility to his friend and stayed at their home that night.
On 1 June 2022, the appellant bought a car cover and used it to cover his car.
Later that day, the appellant’s mother told him Police had tried to contact her as she was identified as a witness. She told the appellant the car needed to be gone today then she would call Police back. He said, ‘Ok’. He went back to his mother’s house, put the car cover over the car and went inside.
Police were conducting patrols and saw the appellant’s car, attended the address and told the appellant they were looking for cars involved in the incident. He said to them, ‘Yeah, it was me,’ and that he was on the Highway and hit something, had looked for an hour and seen nothing. He was cautioned and told them he did not know what he had hit. He was arrested. He said he had seen a dead kangaroo and had not seen anyone.
Police later arrested the appellant’s mother. She told them she had the appellant’s car at her house and had picked him up after he hit a kangaroo. She was re-cautioned, told Police the appellant had called her after he hit a kangaroo, they had looked around and could not see anything then left. Asked if she knew anything about a body, she admitted they did find the body, put it in the back of the utility because the appellant panicked and talked her into it. They took the body to scrubland at the end of the road and that was all she knew. She took investigators to the area and showed them where they had disposed of the body. It was not there. She denied moving the body.
The appellant was told his mother was in custody and Police were searching the road. The appellant made admissions, saying his mother knew nothing about where the body then was. He provided details of the location of the body and said he was freaking out, now his mother was involved and that both their lives were destroyed. He cried and said, ‘She was in the middle of the road’.
For two hours, Police tried to locate the body based on the appellant’s information without success.
The appellant’s mother participated in an interview with Police and made admissions to her role in the offending.
Police asked the appellant to take them to the location of the body and he agreed. He made some admissions on the way there. With his assistance, Police located the body.
On 2 June 2022, the appellant participated in an interview with Police and made admissions about the offending.
The Police crash investigation concluded that, at a speed limit of 100km per hour, the collision was likely unavoidable. The appellant’s actual speed was unknown.
The post mortem identified the cause of death as multiple blunt force injuries, with acute alcohol intoxication contributing.
It was an agreed fact that the appellant’s and his mother’s conduct constituted an indignity to the deceased’s body.
Six victim impact statements were received from members of the deceased’s family, expressing grief at her death and indignity and upset about the treatment of her body.
The appellant’s personal circumstances
Prior criminal history
The appellant had a prior criminal record comprising seven convictions for driving, committed between 2017 and 2022, including two convictions for driving unlicensed and one conviction for low range drink driving. All the punishments imposed were fines.
Social history[2]
The sentencing Judge recorded that, at 23 years old at the time of the offending, the appellant was ‘a young offender for sentencing purposes’.
The appellant, the middle child of three, was born in Darwin, moved with his family to Adelaide, then relocated to Darwin when he was 12. He had some behavioural problems at school, and was teased and bullied. He suffered periods of rejection from his family, being asked to leave the family home on a number of occasions. His father died suddenly when he was around 11 years old, which affected him significantly. He attempted suicide at age 14. He smoked cannabis daily from age 13 and drank alcohol from age 15, although was not dependent on the latter.
He had a ‘sound and consistent’ employment history, starting from when he was 14.
Three character references were provided.
The sentencing Judge found that the appellant’s prospects of rehabilitation were reasonable, and the offender was unlikely to offend again, at least in such a serious way.
Plea and remorse
The sentencing Judge found that the appellant had entered early pleas.
The sentencing Judge also found that the appellant did not show remorse immediately, and made some comments to Police indicating an attitude of callousness and victim-blaming. However, the sentencing Judge found it likely that the appellant has developed remorse over time.
Time in custody
At the time of sentencing, the appellant had spent over 18 months on remand.
A report of a psychiatrist noted that the appellant had difficulty coping with his offending and incarceration, struggling with insomnia, high levels of anxiety, depressed mood, feelings of guilt, sadness and upset, including about his actions of being responsible for the death of the deceased and for involving his mother in the concealment of the driving offence. He was prescribed anti-depressant medication and described symptoms typical of post-traumatic stress disorder (‘PTSD’). He often thought about the deceased and her family, about apologising to them and asking their forgiveness. He expressed remorse to the psychiatrist.
The psychiatrist expressed a strong opinion that the appellant meets the criteria for PTSD. The sentencing Judge found that there was no causal connection between that diagnosis and the offending, but that the appellant’s PTSD placed him at increased vulnerability compared to other inmates without such disorder, and would likely make a custodial sentence more onerous. The sentencing Judge also found that the PTSD and psychological distress would be chronic, running the course over many years, although the severity may decrease over time.
The sentencing Judge also found that the conditions in prison were ‘currently harsh’, with evidence describing an unprecedented higher prison population and a restricted regime of out of cell time.
Post-custody plans
The sentencing Judge found the appellant would most likely live in the rural area on his release, and would need a driver’s licence to be able to work and engage in society.
Ground 2: Manifest excess
It is convenient to deal with Ground 2 first.
The appellant contends that both the individual sentences on Counts 1 and 2, and the total effective sentence, were manifestly excessive.
Legal principles
The principles applicable to an appeal against sentence on the ground of manifest excess are clear, and were conveniently described in Forrest v The Queen (2017) 267 A Crim R 494 (at [63]-[64]) and Edmond & Moreen v The Queen [2017] NTCCA 9 (at [4]). Those principles are:
(a)The sentence is not to be disturbed on appeal unless error is shown.
(b)The presumption is that there is no error.
(c)Appellate intervention is not justified simply because the sentence is markedly different from sentences imposed in other cases.
(d)Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
(e)Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.
(f)It must be shown that the sentence was clearly, not just arguably, excessive.
(g)There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.
The relevant considerations in such an appeal are the maximum penalty for the offence; the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant; the standards of sentencing customarily imposed for the offence; and the personal circumstances of the offender.[3]
Where the offending lies in the objective range of seriousness
The sentencing Judge noted that the collision was unavoidable, and said the Court would sentence on that basis.[4]
The sentencing Judge also noted that the failure to report the incident to Police meant that whether the appellant was under the influence of alcohol or drugs at the time can never be tested.[5] The appellant was not to be treated as someone under the influence at the time, but the failure to report meant that the investigation could not commence when it should, and ‘the people with a real interest in the case, particularly the family, are left with such questions’.[6]
The sentencing Judge noted that the appellant had told the driver of the first car he had called Police, indicating he did not want to make Police aware of the traffic accident, he had awareness that Police ought to be called, and by the time he left the scene, he believed he had hit a person, but made no attempt to call Police.[7] The sentencing Judge found that the incident was unable to be investigated overnight and for the two days that followed.[8] The appellant had the means to call Police, and could have done so when he went back to his mother’s house, but he concealed his involvement by covering his car and telling his sister he had hit a dog.[9]
The sentencing Judge did note that, unlike many cases of hit and run, the appellant did immediately stop at the scene, performed a search, attempted to clear the road of debris and warned other drivers to slow down.[10]
The sentencing Judge held that the failure to contact Police was a serious matter, but ‘it is not in the higher levels of driving cases of that kind’.[11]
The sentencing Judge noted the appellant’s explanation that he was scared and that he considered his life was over.[12] Her Honour did not accept his statement that he was about to contact Police when they arrived at his home, saying all of his conduct up to that point indicated he would not have done that.[13] Her Honour did accept that the appellant was panicked, he told his mother he would kill himself if he got sent to gaol, and he moved the body because he freaked out and did not know what to do, and his mother was freaking out because she knew where the body was.[14]

The sentencing Judge said that what the appellant did after the traffic accident was far more serious than Count 1 and ‘a strikingly serious example of offending of that kind’.[15]
The sentencing Judge referred, again, to the appellant leaving his car at his mother’s house and concealing the damage with a cover. Her Honour then referred to moving the body, covering it, cleaning out the utility and discussing what to tell the appellant’s sister, then moving the body so it would not be found, purchasing a car cover and lying to a number of people to achieve the outcome of concealing the body and therefore shielding himself from any liability for the traffic offence.[16] Her Honour also said that the appellant bore the initial responsibility and then involved his mother in pursuit of evading responsibility.[17]
The sentencing Judge observed that moving the deceased’s body, twice, were ‘highly disrespectful of a deceased person and their family’, and it was hard to comprehend how two ordinary people could be ‘so insensitive and callous’.[18]
The sentencing Judge characterised the offending as ‘morally reprehensible’.[19] Her Honour said ‘it was serious and deliberate conduct to move the body of a deceased person’, and noted the overlap between Count 2 and Count 3.[20] Accepting that Count 2 was ‘moderated to a marginal degree’ because there was no significant planning and the body was moved in a state of panic, her Honour said ‘it is serious for other reasons, and obviously so’.[21]
As to the offending in Count 1, s 174FA of the Criminal Code is comprised of being the driver of a vehicle involved in an incident that results in the death of, or serious harm to, a person, and a failure to stop at the scene, to give reasonable assistance to the person, or to notify a representative of the Police Force as soon as reasonably practicable after the incident. The fault elements are knowledge or recklessness as to whether the vehicle is involved in an incident and it results in the death of, or serious harm to, a person.
Section s 174FA prescribes a maximum penalty of imprisonment for 10 years if the incident results in a death, and for seven years if the incident results in serious harm.
The appellant’s offending involved a failure to notify Police at the time of or shortly after the incident, with actual knowledge that he had struck a person, and lying to another witness about having done so, thereby precluding her from doing the same. If not before, upon his return to the scene later that night, the appellant became aware that the person he had struck was deceased. The gravamen of the offending in Count 1 was the delay in the investigation which followed from the failure to notify Police, which included that the appellant could not be tested for alcohol or drug intoxication and, potentially, the non-preservation of the scene, which may have permitted an assessment of excessive speed or other driving on the part of the appellant which contributed to the incident.
Considered in that light, it is properly characterised as towards the lower end of the range of seriousness for incidents involving the death of a person. That is, it is towards the lower end of the offending for which the maximum penalty is imprisonment for 10 years.
At the sentencing hearing, the prosecutor submitted that the offending in Count 2 was objectively serious for a range of reasons:
(a)The accused had made a decision immediately after the incident and engaged in a course of conduct that continued until 1 June when he was arrested, and over that time took a number of clear, active steps, including at the scene, in an attempt to hide evidence.[22]
(b)‘It is obviously a serious circumstance to cover up the death of a person.’[23]
(c)Significant Police and other resources (forensics, pathologists and crash investigators) went into uncovering the crime at significant public expense.[24]
(d)Moral culpability was high for both the appellant and his mother. The prosecutor said:[25]
This is truly morally reprehensible conduct. But for the deceased’s leg being left on the highway, there is a strong possibility, in my submission, that the offending would not have been discovered; that the deceased would have become another missing person; and that her family would have been left in the intolerable position of just not knowing what had happened to her.
The prosecutor concluded that the appellant’s offending was ‘towards the higher end of the scale’.[26]
At the sentencing hearing, Defence counsel accepted that this was callous and morally reprehensible conduct, but urged that care needed to be taken that the understandable emotional aspect not overwhelm the proceedings.[27] Defence counsel also stressed the fact that the actual conduct the subject of Counts 2 and 3 overlapped entirely, while acknowledging that the elements of the two offences were different and that they captured different aspects of the criminality of that conduct. Because of this, Defence counsel contended, referring to the High Court decision in Pearce v The Queen (1998) 194 CLR 610, that there should be a moderation of each of the sentences for those offences rather than simply a consideration of concurrency and cumulation. This submission was largely accepted by the sentencing Judge, who said:[28]
There is significant overlap in the conduct comprising Count 2 and [Count 3]. There will need to be some adjustments to the individual sentences and substantial concurrency to reflect that.
It is apparent from the sentencing remarks and the sentence imposed for Count 2 that the sentencing Judge accepted the prosecutor’s assessment of the objective seriousness of Count 2 as ‘towards the higher end of the scale’, with the sentence of five years after the discount of 20% for the plea moderated or adjusted downward to reflect the overlap in the conduct comprising the two offences indicating a starting point in excess of 6 years and 3 months before adjustment. The sentencing Judge described the offending in Count 2 as ‘far more serious’ than Count 1 and ‘a strikingly serious example of offending of that kind’.[29] Further:[30]
[T]his is a case where punishment, in a way that is just in all the circumstances and the principle of general deterrence, must be prioritised to reflect, as the Sentencing Act requires, the community’s disapproval of the conduct. Moving a deceased person to conceal an offence and evade justice has to be denounced in the strongest terms.
We do not agree with that characterisation of the objective seriousness of the offending in Count 2. It involved an ongoing course of conduct over a period of some two days, comprised of numerous acts directed to concealing his own criminal liability for the hit and run incident. It is accepted that those acts included the callous and grotesque acts of removing the deceased’s body from the scene, concealing it in bushland, cleaning the traces of it from the utility, and then moving and concealing it a second time. It is accepted that those acts involved indignity to the deceased’s body, and caused distress to her family.
However, having regard to the nature of the offending the subject of the other sentencing cases which are considered below, we do not accept the respondent’s submission that this was ‘an extremely serious example’ of the offence against s 109 of the Criminal Code. In particular, we do not consider it to be as serious as making multiple ongoing threats to kill or harm a complainant of domestic violence with the intention of preventing her from giving evidence about the offending in court (see below).
We note that the sentencing Judge did not have the benefit of the tables of comparative sentences that this Court has been referred to, which has enabled an analysis of the kinds of conduct seen in other instances of this type of offending, and hence a more detailed assessment of where this offending falls in the scale of seriousness of offences against s 109 of the Criminal Code.
We consider that the offending in Count 2 is properly characterised as falling below the mid-range of seriousness for such offending.
This Court’s characterisation of the offending in Count 2 as less serious than the assessment made by the sentencing Judge should in no way be seen as minimising or undervaluing the seriousness of the clearly devastating impact this offending has had on the family members of the deceased, or as disagreeing with the following remarks made by the sentencing Judge, which we endorse:[31]
If the [appellant and his mother] thought they were moving the body of someone who no one would notice was missing, they badly miscalculated. Did they think they could move the body and no one would notice? If so, that was a distorted view of the deceased and her circumstances.
The deceased was a much loved and admired mother, sister, aunty and member of a large extended family. Much of the grief of the family, expressed both through the written victim impact statements, including the two statements read at the time the pleas were taken, is direct to the grief and loss that might be expected with the death of a loved one.
The grief was deepened substantially due to the [appellant and his mother] moving the deceased’s body, not once but, in the case of [the appellant], twice. Those actions were an attempt to pervert the course of justice and were highly disrespectful of a deceased person and their family.
Sentences imposed for hit and run offences and pervert the course of justice offences
The starting point for the appellant's contention was that, before the stated discount of 20% for the guilty plea, the sentence on Count 2 was imprisonment for six years and three months, and the appellant’s total effective sentence was imprisonment for a period of seven years and six months for a 23 year old, with no serious offending history, who suffered PTSD as a consequence of the offending. The appellant sought to demonstrate that this sentence was manifestly excessive by reference to the sentences imposed in other cases in which mostly older offenders had committed s 174FA and s 109 offending and received significantly lower sentences to imprisonment.
The appellant provided two tables of comparative sentences imposed by the Supreme Court for each offence.
The first table extracted 22 cases involving hit and run resulting in death determined between January 2010 and November 2022. About half of those involved sentences for a single count. The other half involved sentences for more than one offence, some including dangerous driving causing death or other driving offences.
A rational comparison between sentences requires the conversion of all sentences to the sentence before any discount given for the plea. This is necessary because the discount for the plea is discretionary and no rate was uniformly applied in the cases in the table. In the reasons that follow, all references to sentences identified in the table are to the sentence before the discount for the plea. Where no discount was stated in the sentencing remarks, for the purpose of the analysis the discount is assumed to have been 25%. A rational comparison between sentences also requires acknowledgement of the number and nature of other offences for which the total sentence was imposed.
Before the discount for the plea, the appellant’s sentence for Count 1 was three years and nine months.
The sentences set out in the first table ranged from home detention for 12 months to imprisonment for five years and four months, before the discount for the plea.[32]
Of the 22 sentences in the first table, 10 of them exceeded the appellant’s sentence (including two aggregate sentences for an offence of dangerous driving causing death as well as the hit and run offence) and 11 of them were less than the appellant’s sentence.
It is apparent that the appellant’s sentence on Count 1 sits within the range of sentences imposed by the Court for this offence, albeit towards the high end of such sentences. The first table does not demonstrate that the appellant’s sentence on Count 1 was manifestly excessive. However, the contribution of its length to the total effective sentence is noted for the purposes of the conclusion as to manifest excess reached below.
Of the 28 sentences in the second table, they range from imprisonment for six months to imprisonment for five years and 10 months. The appellant’s sentence of six years and three months is five months longer than the longest sentence imposed.
The highest sentence imposed was imprisonment for five years and 10 months.[33] That offender was 29 years old and had priors for drug and dishonest offending. The offending involved charges for aggravated assault and causing serious harm, in two separate incidents, against the victim who was his domestic partner. He was served with a domestic violence order protecting the victim. Whilst on remand, over a period of months, in breach of the domestic violence order, the offender made a large number of phone calls to the victim and others, telling her to drop the charges, give false evidence and not to speak to Police or lawyers. During the calls, the offender threatened to bash the victim, to maim and to kill her, and referred to previous assaults against her. The offender made calls to other people threatening to bash, seriously injure, stab and disable the victim, with the intention that the messages would be passed on to her. When, in accordance with the offender’s instructions, the victim did not appear in court, a warrant was issued for her arrest and the offender pleaded guilty to a lesser charge. That outcome was due to difficulties getting the victim to testify. This offending was characterised by the sentencing Judge as falling in the mid-range of seriousness for such offending.
We consider that offending to be far more serious than the appellant’s offending, given that it involved ‘detailed, credible and chilling’ threats, made more credible due to the offender’s violent history, and that those threats had the desired effect on the victim, and ultimately on the course of the administration of justice.
The second highest sentence imposed was imprisonment for five years.[34] The offender was 35 years old with an extensive criminal history of violence, including prior assaults against the victim, his domestic partner, and other offending, comprising some 18 pages. The offending involved making 158 calls from gaol to the victim of five assaults, demanding that she disclose what she had told Police, pressuring her to withhold evidence or present evidence favourable to the offender, or to drop the charges, and discouraging her from appearing in court. The sentencing Judge considered that the offender had been largely successful in his perverting the course of justice.
Again, this extensive ongoing conduct of threatening a victim of domestic violence not to give evidence against the perpetrator in order to avoid justice for those crimes is a far more serious example of offending against s 109 than the appellant’s.
The third highest sentence was imprisonment for four years and four months.[35] The offender was 59 years old and had priors for supplying kava committed 11 years and nine years prior to this offending. The offender was employed as an Aboriginal liaison officer with the Northern Territory Police. He agreed to sell kava within the community where he worked. Over months, he informed his supplier of Police movements and road blocks by using the information he had access to in his role, and also misinformed Police about his supplier’s movements so as to lead them away from his supplier.
Again, we consider this abuse of a position of responsibility and trust, which impeded the detection by Police of the offender’s involvement in ongoing kava supply in a remote community over the course of months, to be more serious than the appellant’s offending.
The second table reveals that, of the 28 sentences referred to:
(a)three of them were sentences of less than one year;
(b)12 of them (or around 43%) were between one year and up to two years; and
(c)11 of them (or almost 40%) were between two years and up to four years and four months.
The second table also reveals sentences for offending which is somewhat akin to the appellant’s.
In one case,[36] the brother of the 37 year old offender had reversed over a pedestrian then fled the scene, without rendering assistance. Later that night, the brother went to the offender’s home and offered him $1200, two ounces of cannabis and four bottles of alcohol to take responsibility for the hit and run by claiming to be the driver. The offender agreed and, after receiving payment, falsely reported to Police that he was the driver. Police later became aware that the offender’s brother was the driver, at which point the offender admitted his offending. The sentencing Judge held that this did not fall into the more serious category of such offending, including because the perversion of justice was not brought to ultimate fruition. The sentence imposed was imprisonment for two years, suspended after serving 18 months.
In the co-offender’s case,[37] the 31 year old offender was the one who reversed his car into the pedestrian, knocking her over. He knew he had done so. She lay on the ground, suffering wounds to her elbow and calf requiring stitches, and he drove off. He went to see his family, who told him to go to the Police. Instead, he convinced his brother, on payment as referred to above, to tell Police he was the driver and the offender was a passenger. The brother agreed, reported to Police and was arrested, and the offender signed a statutory declaration that he had been a passenger and had advised the brother to report to Police. The sentence imposed was imprisonment for one year and nine months, suspended after nine months.
In another case,[38] the co-offender was a Police officer who had been drinking, was intoxicated, then drove a Police vehicle, crashing it into a monument and causing some $10,000 damage to the vehicle. He drove it home and called the offender, also a Police officer, with whom the co-offender had been drinking that night. The co-offender reported the matter and was told he would need to be breathalysed. The co-offender convinced a reluctant neighbour to take the breath test, which was done in front of the offender. The offender and co-offender then signed statutory declarations stating the co-offender’s breath test had given a zero reading. They later confessed to falsely declaring the results. The sentence imposed was imprisonment for three years, with 12 months home detention. The same sentence was imposed for the co-offender.[39]
In another case,[40] the 38 year old offender had physically assaulted the victim, who was consequently lying on the floor, a witness suggested calling an ambulance, the offender made veiled threats to the witness saying he would report the witness for drugs if she called an ambulance, and the offender knew the victim was badly hurt. The victim remained on the floor over a period of hours, as the offender remained at the residence to make sure the witness did not call an ambulance or Police. The next morning, the witness decided to call Police and an ambulance and the offender attempted to dissuade her from doing so, again making veiled threats. An ambulance was called that morning. The offender prevented an ambulance being called to avoid arrest for the assault. The offender had mental health conditions that would make custody more onerous, and reasonable prospects of rehabilitation. The sentence imposed for the s 109 offence was imprisonment for one year.
In another case,[41] two offenders who had assaulted and neglected a two year old child, who had sustained a broken leg whilst being locked in a room for hours at one of the offender’s workplaces, conspired to give a false account of what had occurred to hospital staff about how the victim came to be injured. After a mandatory report was made to Territory Families and Police, the offenders continued to claim that the victim had fallen from his bed onto the floor. The sentence imposed was imprisonment for 10 months for the s 109 offence.

These sentences are all markedly below the sentence imposed on the appellant, and involve offending which is more serious or, at least as serious as, that of the appellant, but lack the grotesque element of dealing with a dead body, which does not per se, substantially elevate the seriousness of the offending. That element was the subject of the separate charge, for which the appellant received a sentence of imprisonment for 12 months to be served concurrently with the sentence on Count 1.
Of the 28 sentences in the second table, only two offenders were the same age or younger than the appellant. Those two offenders received sentences of imprisonment for four years[42] (for a 22 year old whose offending involving attempting to persuade a person charged with drug offending to retract their statement to Police) and imprisonment for one year and four months[43] (for a 23 year old whose offending involved conspiring with his partner to falsely explain to Police why he had been driving when his driver’s licence had been suspended, which false statements were made by both the offender and his partner at the trial).
Finally, there is the appellant’s co-offender, his mother. She was sentenced at the same time as the appellant to imprisonment for two years and eight months, before the 25% discount for the guilty plea, suspended after 12 months.
Conclusion regarding manifest excess
We adopt, without repeating, the observations of this Court in AB v The King [2023] NTCCA 8 (at [99]-[102]) regarding the principles relating to comparison with other sentences imposed by the Court for similar offending.
In the application of those principles to the present case, the sentence for Count 2 of six years and three months before the discount is markedly different from other sentences imposed in other cases of attempting to pervert the course of justice. That, of itself, does not justify appellate intervention. However, the marked difference which we have described between the appellant’s sentence and those in the other cases are such that there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
The appellant’s offending the subject of Count 2 is nowhere near the most serious of the offending in the 28 cases identified in the second table; the appellant had a minimal criminal history; and the appellant was one of the youngest offenders in those cases. Despite those relativities, the appellant’s sentence higher than any other sentence imposed for that offence.
Further, the appellant’s total effective sentence before the discount of seven years and six months was imposed on a 23 year old offender, with a limited criminal record, reasonable prospects of rehabilitation and a diagnosis of PTSD associated with the offending, which made his time in custody more onerous than a person without that condition.
There was also a marked disparity between the length of the sentence imposed on the appellant and those imposed on other offenders in the comparative cases which bore the closest similarity to the objective seriousness of the appellant’s offending and his personal circumstances.
This process of comparison demonstrates that the appellant’s total effective sentence and the individual sentence for Count 2 were plainly excessive and Ground 2 is made out.
Ground 1
The conclusion in relation to Ground 2 makes it unnecessary to consider the other grounds relied on by the appellant. For this reason, leave to appeal on those grounds was refused.
Disposition and resentence
We make the following orders:
1.The appeal is allowed on Ground 2.
2.Save as to the convictions imposed on each Count, which are affirmed, the sentence imposed by the sentencing Judge is set aside.
3.With a 25% discount for the guilty pleas and remorse, the appellant is re-sentenced to a total effective sentence of imprisonment for three years, as follows:
(a) two years and six months for Count 2;
(b) one year for Count 1, with six months to be cumulative on the sentence for Count 2; and
(c) one year for Count 3, with the sentence on Count 3 to be served concurrently with the sentence on Count 2.
4.The sentence is backdated to 1 June 2022, and suspended immediately.
5.An operational period of one year and six months from today is fixed for the purposes of ss 40(6) and 43 of the Sentencing Act 1995 (NT).

_______________________

[1]Counts 1 and 2 were charged on an indictment dated 1 August 2023. Count 3 was charged on complaint dated 4 August 2023 and transmitted to the Supreme Court.

[2]What follows comes from the sentencing Judge’s sentencing remarks (‘Sentencing Remarks’), pp 11-12.

[3] Edmond & Moreen v The Queen [2017] NTCCA 9 at [30] per Grant CJ and Hiley J, citing Phan v Western Australia [2014] WASCA 144 at [19] per Mazza JA (Martin CJ and Buss JA agreeing).

[4]Sentencing Remarks, p 8.

[5]Ibid.

[6]Ibid.

[7]Ibid.

[8]Ibid.

[9]Ibid.

[10]Ibid.

[11] Ibid, p 8.

[12]Ibid.

[13]Ibid, p 9.

[14]Ibid, p 10.

[15] Ibid, p 9.

[16]Ibid, p 15.

[17]Ibid, p 15.

[18]Ibid, p 7.

[19]Ibid, p 9.

[20]Ibid, p 10.

[21]Ibid, p 11.

[22]Transcript, 4 December 2023, p 6.

[23]Transcript, 4 December 2023, p 7.

[24]Ibid.

[25]Transcript, 4 December 2023, p 8.

[26]Transcript, 4 December 2023, p 7.

[27]Transcript, 4 December 2023, pp 20-21, 24.

[28]Sentencing Remarks, p 10.

[29]Ibid, p 9.

[30]Ibid.

[31]Sentencing Remarks, p 7.

[32]Putting to one side the aggregate sentence of seven years and six months for dangerous driving causing death and the hit and run: Auton, 21 December 2016, Kelly J.

[33] Jungala, 17 April 2019, Kelly J.

[34] Andy, 10 March 2020, Kelly J.

[35] Garrawurra, 2 July 2020, Hiley J.

[36] Kenyon, 2 October 2020, Grant CJ.

[37] Kenyon, 31 July 2019, Riley AJ.

[38] Hawkins, 31 May 2022, Southwood J.

[39] Beaumont, 31 May 2022, Southwood J.

[40] Wilson, 24 July 2023, Burns J.

[41] WD, 13 July 2023, Burns J.

[42] Foster, 22 February 2016, Southwood J.

[43] Curtis, 11 November 2014, Barr J.