Namundja v Bott
[2025] NTSC 48
•23 July 2025
CITATION:Namundja v Bott [2025] NTSC 48
PARTIES:NAMUNDJA, Cody Alan
v
BOTT, Steven
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 4 of 2025 (22501089)
DELIVERED: 23 July 2025
HEARING DATE: 3 July 2025
JUDGMENT OF: Brownhill J
REPRESENTATION:
Counsel:
Appellant:E Henke
Respondent: C Heske
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Bro2507
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINNamundja v Bott [2025] NTSC 48
No. LCA 4 of 2025 (22501089)
BETWEEN:
CODY ALAN NAMUNDJA
Appellant
AND:
STEVEN BOTT
Respondent
CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 23 July 2025)
The issues in this appeal are whether the sentence imposed on the appellant by the Local Court of 18 months’ imprisonment with a non-parole period of nine months, for an offence of aggravated assault against his domestic partner, was manifestly excessive or attended by error in a failure to consider the appellant’s rehabilitation by ordering a report as to the appellant’s suitability for a suspended sentence.
The charge and the sentence
On 10 January 2025, in the Local Court, the appellant pleaded guilty to the charge of assault, with the circumstances of aggravation that the victim suffered harm, the appellant was male and the victim was female, and she was unable to effectually defend herself due to her physique and situation, contrary to s 188 of the Criminal Code (NT).
The appellant was sentenced to imprisonment for 18 months, backdated to 6 January 2025 (to reflect time in custody after arrest), with a non-parole period of nine months.
Grounds of appeal
Pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT), the appellant appealed against the sentence on the following grounds:
(a)that the primary Judge failed to properly consider the principle of rehabilitation, and its effect on community protection, in declining to order a report under s 103 of the Sentencing Act 1995 (NT) as to the appellant’s suitability for supervision (Ground 1); and
(b)that the sentence was manifestly excessive (Ground 2).
The agreed facts
The facts agreed on the plea were that the appellant was 29 years old and the victim was 25 years old. They were in a domestic relationship and lived together in Gunbalanya. At about 1.50pm on 6 January 2025, the appellant and the victim were drinking together at their home. The appellant became verbally abusive towards the victim for an unknown reason. The victim walked out of the house to move away from the appellant and sat on the front porch. The appellant followed her outside. In an unprovoked attack, the appellant punched the victim with two clenched fists multiple times, ‘over and over’, to her head and face using force. The victim tried to stand up to get away from the appellant but was overpowered by him and unable to move away. The appellant continued punching the victim to her head multiple times with his clenched fists. The victim managed to stand up and run towards the Police station for help. She collapsed at the front door of the Police station due to feeling dizzy from being punched. She was taken to a medical clinic for treatment. She gave a statement to Police at 2.58pm. At about 3.09pm, the appellant went to the medical clinic to see the victim, and he was arrested. As a result of the assault, the victim suffered soreness to her jaw, soreness to her head, a swollen, bleeding and lacerated lip, a bruised and swollen nose, and missing front teeth.
Appellant’s circumstances and submissions to the Local Court
The appellant was 29 years old at the time of sentencing. He had a prior criminal record comprised of:
(a)one finding of guilt and one conviction for breach of bail committed in January and May 2017, for which he forfeited his bail and was otherwise discharged;
(b)a conviction for aggravated assault, including by causing harm to the same victim, committed on 26 November 2016, for which he was sentenced to four months’ imprisonment, suspended after three days with an operational period of 12 months and supervision; and
(c)one instance of breach of the conditions of that suspended sentence, dealt with on 30 May 2018 by extending the operational period by some six weeks.
On the plea, the appellant’s counsel asked the Local Court to order a report under s 103 of the Sentencing Act to assess the appellant’s suitability for a suspended sentence. It was submitted that the only ‘substantive’ previous matter on the appellant’s record was the offending against the same victim in 2016, that the appellant accepted that the relationship with the victim was over, that the appellant wished to reside in Maningrida where he was raised, which was some distance from Gunbalanya, that there was the possibility at Maningrida for the appellant to receive therapeutic programs including through a local health clinic, and that the appellant was willing to engage in those programs. It was submitted that a suspended sentence was within range despite the serious nature of the assault.
The Local Court responded saying that, given the gravity of the conduct, the Court would need to be convinced that a suspended sentence was within range, and asked for full submissions to be made on the plea.
Submissions were made on behalf of the appellant that it was an early plea, with the utility that the victim did not need to give evidence; that the appellant had gone to the medical clinic after the offending to apologise to the victim, which was an immediate demonstration of remorse; that he had a limited criminal history; that he was a father of a young daughter, and a traditional man, with strong cultural connections to Maningrida; that while he was intoxicated on the day of the offending, he is not a person who drinks regularly and alcohol is not a problem for him; that nevertheless, he was willing to comply with a condition restricting alcohol consumption; and that he was willing to participate in therapeutic programs provided by the health clinic and the Maningrida Men’s Shed. It was submitted that some time in custody was required, but that being supervised by Community Corrections with re-engagement in the community was a more appropriate balancing of the sentencing principles of deterrence and rehabilitation than ‘resigning him to an entire sentence served in prison’.
The prosecutor submitted that the offending was a very violent and brutal assault, the second assault committed by the appellant on the victim, and that, despite the appellant’s limited criminal history, a term of actual imprisonment was sought, although the prosecutor did not cavil with the appellant’s submission that a suspended sentence would appropriately deter the appellant from further offending.
Local Court’s sentencing remarks
The Local Court declined to order the preparation of a report under s 103 of the Sentencing Act and proceeded to sentence the appellant.
In sentencing, the Local Court recited the agreed facts; referred to the early plea having ‘as much utility as possible’; referred to the appellant attending the medical clinic to say sorry; referred to the appellant’s personal circumstances; said the assault ‘is unexplained’; accepted the submission that imprisonment is a sentence of last resort; said the Court should ‘make every effort not to imprison yet another Aboriginal man in an overcrowded prison’; and noted as ‘a significant matter’ the gap in the appellant’s offending between the 2017 aggravated assault against the same victim and the present assault.[1]
The Local Court characterised the present assault as:[2]
a brutal, unprovoked, forceful beating again and again by a man against a woman who could not defend herself, causing – amongst other things, a lifelong effect to her appearance of having her teeth removed. She is unlikely to be able to afford to have her teeth replaced. She is now a young woman with her front teeth missing because of the brutality of her long-term partner.
The Local Court characterised the offending as within the mid-range of seriousness for offences of this nature and said:[3]
The court is always concerned to try and rehabilitate people and the best way to stop re-offending is to rehabilitate. The best way to protect the community is to help the offender stop the offending but this has the hallmarks of a [sic] brutal, unprovoked, extreme domestic violence and the court is not left with that option in this instance, sadly, reluctantly.
I decline to have him assessed. The community needs protection from this man. The victim needs protection from this man. ...
Addressing the appellant directly, the Local Court said:[4]
It’s a serious assault on your partner. It is extreme, forceful and went over a long period. Amongst other things, you knocked her front teeth out.
I accept that you went to the clinic to apologise to her. She needs to be protected from you.
... I hope you reflect upon how wrong your conduct is, in prison, and you show the Parole Board that you can mend your ways and not hurt your partner – or any other woman – again.
Nature of the appeal
It is uncontroversial that an appeal against sentence under s 163 of the Local Court (Criminal Procedure) Act 1928 (NT) is an appeal from the exercise of a judicial discretion governed by the well-established principles set out in House v The King.[5] Those principles are that:
(a)It is not enough that the appeal court considers that, if they had been in the position of the sentencing Judge, they would have taken a different course.
(b)There must be some error in the exercise of the sentencing discretion.
(c)The errors may be acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the exercise of the discretion, mistaking the facts, or not taking into account some material consideration. This is the nature of appeal Ground 1.
(d)Alternatively, the error may be that the sentence is manifestly excessive or manifestly inadequate. This is the nature of appeal Ground 2.
In Mitchell v Gibson,[6] Kelly J also noted the following principles applicable to an appeal against sentence from the then Magistrates Court (now the Local Court):
(a)It is not to be assumed that the failure to mention a sentencing principle means that it has been overlooked.[7]
(b)Local Court Judges are working under pressures which mean they are unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[8]
(c)An appellate court is entitled to assume that a Local Court Judge has considered all matters which are necessarily implicit in any conclusions reached.[9]
Ground 1 – Failure to consider rehabilitation by ordering a report under s 103 of the Sentencing Act
Under this ground, the appellant asserted a specific error by the Local Court, namely the failure to take into account the sentencing factor of rehabilitation as provided in s 5(1)(b) of the Sentencing Act, and its effect on community protection, given that a suspended sentence of imprisonment has a more ‘rehabilitative effect’ than a sentence of imprisonment with a non-parole period.
The appellant submitted that the option of a suspended sentence ‘was entirely disregarded’ by the Local Court, with there being no reference in the sentencing remarks to the utility of a suspended sentence, the availability of therapeutic programs in Maningrida, the appellant’s willingness to engage in them, or that initial inquiries had been made about those programs which could be further explored in a report under s 103 of the Sentencing Act.
Is a suspended sentence ‘more rehabilitative’?
In Director of Public Prosecutions v Buhagiar,[10] it was observed that:
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community’s interest and generally designed to prevent re-offending. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in R v Osenkowski (1982) 30 SASR 212 at 212-213, or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed. [other citations omitted]
In the context of a statutory power to order that a sentence of imprisonment be served in the community under an intensive community correction order, where the statute made ‘community safety’ the paramount consideration, it was observed that:[11]
...[C]ommunity safety is not achieved simply by incarcerating someone. ... [I]n many cases, incarceration may have the opposite effect. ... The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and ... in most cases, this is more likely to occur with supervision and access to treatment programs in the community.
The appellant also referred to observations in the Bugmy Bar Book to the effect that research shows that people who receive non-custodial penalties are significantly less likely to be re-convicted within the next 12 months than those who receive sentences of imprisonment, and there is a growing body of evidence indicating that incarceration is of limited effectiveness in reducing recidivism when compared with community-based alternatives.[12]
The appellant relied upon the above observations in support of the proposition that a suspended sentence with supervision is ‘more rehabilitative’, and thus offers greater community protection, than a sentence with a non-parole period.
A proposition as broad as that cannot be accepted. The Courts cited above did not put such a proposition and were not purporting to refer to every offender and every case. As Harrison J went on to observe in The Queen v Pullen (at [89]), in some cases, community safety will best be achieved through incarceration, and that would no doubt be the case where a person presents a serious risk to the community, whereas in other cases, community protection may be best served by ensuring that an offender avoids gaol.
Examples of a failure to take a relevant matter into account
The appellant relied on Ross v Toohey,[13] in which Mildren J initially allowed an appeal against sentence because the sentencing court had failed to consider home detention as a sentencing option and had sentenced the appellant in that case to imprisonment. In that decision, although the appellant’s counsel had put the option of home detention before the sentencing court, that court gave no reasons for not ordering a home detention suitability assessment report other than, implicitly, that the offending was ‘too serious’, which Mildren J held (at [20]) was an erroneous conclusion in the circumstances in light of the sentence imposed of three months’ imprisonment, suspended after one month and in light of the fact that the position of home detention orders in the hierarchy of sentencing orders in s 7 of the Sentencing Act indicated that home detention orders are in fact a form of imprisonment and almost as serious as a term of actual imprisonment.
The appellant drew an analogy between the decision appealed from in Ross v Toohey and the present decision on the bases that a partially suspended sentence is also a sentence of imprisonment and almost as serious as a sentence of imprisonment with a non-parole period, and the Local Court had given no reasons as to why a supervision report was not ordered, other than to refer to the seriousness of the offending and the need for community protection.
The real distinction between Ross v Toohey and the present case is that, in that case, the short sentence imposed of imprisonment for three months belied the conclusion that the sentencing court’s failure to consider home detention as a sentencing option was explained by the seriousness of the offending. The option of home detention was as available and appropriate as the short sentence of imprisonment, and there was no other basis articulated, even implicitly, in the sentencing court’s reasons for rejecting home detention as an option. It was therefore concluded that the sentencing court had failed to consider it.
The appellant also relied on Mitchell v Gibson, in which Kelly J upheld an appeal against sentence on the basis that, in imposing a suspended sentence, the sentencing court had failed to consider whether a condition requiring supervision should be part of a suspended sentence, which was held to be a highly relevant matter. Kelly J inferred (at [16]) that the sentencing court had failed to turn its mind to that question from: (a) the failure to refer in the sentencing remarks to the appropriateness of supervision; (b) the failure to refer to a report which had been received from a residential rehabilitation facility despite the fact that there was evidence to suggest that substance abuse was a factor in the proceeding; (c) an expectation that some form of supervision would have been included in the suspended sentence to facilitate the appellant’s rehabilitation, given the well-recognised principles applicable to the sentencing of young offenders; and (d) the failure to order a supervision report.
For the reasons referred to in paragraph [33] below, the present case differs from Mitchell v Gibson, essentially because of the matters the Local Court expressly referred to in its sentencing remarks.
The choice between a suspended sentence or a non-parole period
It is well established that a sentencing judge has a wide discretion when deciding whether to fix a non-parole period or to suspend a sentence where that option is available under s 40(1) of the Sentencing Act, namely for a sentence of imprisonment for five years or less.[14]
After imposing a sentence which is appropriate to the offending in light of all the relevant circumstances of the offence and the offender, a sentencing judge must choose whether to proceed by way of a suspended sentence or a non-parole period and, in making that choice, must consider many things including any relevant legislative provisions, the nature of the offending, the minimum period of imprisonment which must be actually served to reflect the seriousness of the offending, and the personal circumstances of the offender, including any prospects for rehabilitation.[15] The question of whether to impose a non-parole period or to suspend a sentence must be answered in light of all of the circumstances surrounding both the offence and the offender.[16]
It may therefore be accepted that a sentencing court deciding to impose a term of imprisonment must consider whether to impose a suspended sentence or a non-parole period, and must have a proper basis for the selection of one over the other, which basis should be expressed or otherwise apparent in the sentencing court’s reasons.
The Local Court’s decision
In the present case, the Local Court expressly declined to order a report about the appellant’s suitability for supervision. Of itself, that suggests the Local Court did give some consideration to a suspended sentence. Further, the Local Court expressly referred to the link between rehabilitation and community protection and expressly considered that the serious nature of the offending, and the risk posed to the victim and the community by the appellant, led the Local Court to reject the option of a suspended sentence. Further still, the Local Court expressly referred to the appellant’s rehabilitation in custody when informing him about the sentence with a non-parole period.
Thus, it cannot be accepted that the Local Court failed to consider the appellant’s rehabilitation when imposing a non-parole period rather than a suspended sentence. Implicitly, but evidently, the Local Court considered the matter and was of the view that the appellant’s prospects of rehabilitation at the time of sentencing were poor or, at the very least unclear, such that a suspended sentence did not provide the same degree of protection to the victim and the community (at least in the shorter term) that a non-parole period provided.
The Local Court may have given less weight to the relevant factor of rehabilitation and its effect on community protection than the appellant thought appropriate, or than another sentencing judge might have given. However, in an appeal of this nature, giving insufficient weight to a relevant factor is ordinarily not, without more, an appellable error.[17] In any event, that is not the way the appellant put his case.
It has not been shown that the Local Court failed to consider the appellant’s rehabilitation and/or a suspended sentence with supervision and its potentially protective effect on the community.
For the above reasons, this ground is not made out.
Ground 2 – Manifest excess
The appellant argued that the sentence was manifestly excessive both because of its length and because it was not partially suspended but instead was subject to a non-parole period.
Applicable principles
The principles applicable to an appeal against sentence on the ground of manifest excess are well-settled and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]) and Edmond 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 other 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.
Matters to be considered 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.[18]
The length of the sentence before the discount
The Local Court did not specify the amount of the discount afforded for the appellant’s guilty plea. The respondent argued that it was not permissible or appropriate to ‘reverse engineer’ the sentence to its pre-discount length without knowing what the actual discount afforded was. I disagree. Firstly, identifying the pre-discount length of the sentence is necessary to permit a meaningful comparison between the appellant’s sentence and the comparative sentences said to represent the range of sentences for such offences.[19] Secondly, notwithstanding that the Local Court did not identify the amount of the discount, the Local Court expressly noted both the full utility of the plea and the appellant’s remorse as demonstrated by his attendance at the medical clinic to apologise to the victim. The express reference to those two things makes it highly likely that a discount of 25% was applied, that being the discount commonly applied for an early plea with genuine remorse. There is no sound basis upon which to conclude that any different discount was applied by the Local Court.
On that basis, the starting point for the sentence was imprisonment for two years. That represents a sentence of 40% of the maximum penalty of imprisonment for five years for an offence characterised by the Local Court as in the mid-range of seriousness for such offences.
Matters said to aggravate the offending not put below
The respondent pressed a number of matters said to aggravate the seriousness of the offending, and thereby justify the sentence imposed, namely:
(a)The assault was against the mother of the appellant’s young child, which the child was likely to find out about, thereby exposing the child to harms similar to those involved in exposing a child to conduct that constitutes domestic violence, namely:
(i) betraying the child’s trust and placing the child in a situation of emotional conflict;
(ii) creating behaviour which will become a reference point for the child as to expectations of relationship violence from loved ones and trusted authority figures;
(iii) creating additional constraints and complications for the victim and the child in terms of child-care, co-habitation, co-parenting arrangements and managing extended family relationships;
(iv) leaving onerous obligations on the community to support the victim and the child in the absence of the support of a parent who is failing to fulfil their parental duties and who must be managed as a safety risk; and
(v) making it more challenging for the child to connect safely with their parent’s family and culture.
(b)The appellant did not desist from his offending behaviour; rather the victim managed to stand and run for help.
(c)The victim was vulnerable as the appellant’s partner and, as the appellant was aware, had been drinking and therefore may have had reduced capacity to defend herself.
(d)The lack of evidence as to the nature of the appellant’s proposed apology to the victim or its motivations. Further, in circumstances where the victim attended at the medical clinic with visible injuries and the ability to identify the appellant as her assailant, the apology could have been intended for the self-interested purpose of persuading the victim and medical clinic staff to allow him to see the victim, to try to persuade her to not to end the relationship, and/or in the hope that she would not press charges against him.
(e)The injuries to the victim raised the prospect of a charge of causing serious harm, and the appellant’s early plea of guilty foreclosed the risk of being sentenced for that more serious charge.
(f)The appellant’s acceptance that the relationship was over was not logically probative of any reduction of risk of harm to the victim, particularly given that the appellant and victim are the parents of a young child and their families live in close proximity to each other.
In Veness v The Queen,[20] the Court of Criminal Appeal held (at [33]) that an appellate court will be cautious in its approach to asserted errors which arise from contentions or materials that could have been, but were not, advanced before a sentencing court and, in a sentencing appeal, the Court is reviewing the exercise of a discretionary judgment, not re-hearing the plea in mitigation. Further, sentencing appeals are not an occasion for the revision and reformulation of the case presented at first instance. While, in some circumstances, the failure to make a particular submission at first instance will not preclude making that submission in an appeal against sentence, a submission in mitigation which was not made during the sentencing proceedings at first instance will ordinarily only be entertained on appeal where fresh evidence is adduced or where it can be shown there was most compelling material available which was not used or understood and a miscarriage of justice may be demonstrated by its omission.
As the appellant correctly submitted, the same observations apply to the Crown in response to an appeal against sentence, and submissions about the aggravation of the offending which were not made during the first instance sentencing proceedings. None of the matters referred to in paragraph [43] above were put by the prosecutor to the Local Court. Consequently, it is not appropriate for them to be entertained by this Court on appeal. It is therefore unnecessary to address other reasons why those submissions could not be accepted.
Loss of the victim’s front teeth
The appellant made the same submission in relation to the respondent’s submission that the victim’s loss of front teeth comprised a permanent loss of function.
The effect on the victim from the loss of her front teeth was clearly a matter taken into account by the Local Court. The Local Court expressly referred to ‘a lifelong effect to her appearance’ and to the victim being ‘now a young woman with her front teeth missing’.
Contrary to the appellant’s submission, I do not accept that these observations were confined to the effect on the victim’s appearance. Losing one’s front teeth is self-evidently an effect upon a person’s ability to eat, as well as an effect upon a person’s appearance. It is also self-evidently a permanent effect, even if the victim were able to afford to have her front teeth replaced in the future.
Duration of the assault – ‘long’ or ‘short’
There was also some debate between the parties about whether the offending could be properly characterised as taking place over a ‘long’ period, as the Local Court had found, or a ‘short’ period.
The agreed facts indicate that the assault occurred between 1.50pm and 2.58pm. That time period also included the appellant verbally abusing the victim, her walking out of the house onto the porch and him following her out, the victim standing up and running to the Police station, being found by Police and taken to the medical clinic, and Police attending the medical clinic to take her statement. This indicates that the assault lasted for less than an hour, in the order of minutes, but it is not possible to be more precise than that.
In the context of agreed facts that the assault involved multiple punches to the head and face, ‘over and over’, using force, the victim tried to stand up and get away but was overpowered and unable to move, and the appellant continued punching her to the head multiple times, there is no error in the characterisation of the assault as lasting for ‘a long period’. It was a prolonged assault, albeit one that lasted less than an hour.
Comparative sentences and the appellant’s sentence
The parties provided to the Court an agreed table of, and the sentencing remarks for, nine comparative sentences imposed by the Supreme Court between 2016 and 2024 for aggravated assault by a male against a female domestic partner, causing harm and where she was unable to defend herself.
The parameters the parties applied to select these nine comparatives were not clearly identified. The Supreme Court Library’s sentencing database discloses in excess of 100 sentences imposed by the Supreme Court for offences against s 188(1) and (2) of the Criminal Code. The class of comparative sentences chosen by the parties may be too narrow to truly represent the range of sentences imposed by this Court for such offending. In any event, both parties accepted that the nine matters were relevantly comparative to the appellant’s case, so I will proceed on that basis.
Prior to the discounts applied to the sentences to reflect the pleas of guilty, those sentences ranged from imprisonment for 10 months to imprisonment for four years.
The sentence for 10 months involved a 29 year old offender with a prior history including three aggravated assaults, who was intoxicated and unprovoked, and kicked the victim a number of times as she lay on the floor, causing pain and bruising to the ribs.[21]
The sentence for four years involved a 28 year old offender with a prior history including nine aggravated assaults, including against the same victim, who was intoxicated and unprovoked, and leaped in the air and kicked the victim to the back from behind then punched her to the head as she lay on the ground, causing a broken arm, abrasions, bruising and a cut lip.[22]
Of the nine sentences, four were less than the appellant’s sentence,[23] two were more than the appellant’s sentence,[24] two were the same as the appellant’s sentence,[25] and one involved two counts where one sentence was more and one sentence was less than the appellant’s sentence.[26]
The length of the appellant’s sentence falls squarely within the limits of these nine comparative sentences. The appellant’s sentence is not markedly different from other sentences imposed in other cases. It falls within the upper half of the sentences imposed, but that is clearly explained by the fact that, unlike the loss of the victim’s front teeth in the present case, none of the comparative sentences involved any long-standing physical harm to the victim, and (aside from the four year sentence where the victim suffered a broken arm referred to above) none of them involved serious or very significant physical injury to the victim.
Further, notwithstanding that none of the comparative sentences exceeded the limit of five years’ imprisonment for a suspended sentence to be imposed, of those nine sentences, six involved a suspended sentence and three involved a non-parole period. Again, on the basis of those comparative sentences, the appellant’s sentence is not markedly different from other sentences imposed in other cases.
Giving appropriate allowance to the discretion of the Local Court, it has not been demonstrated that the appellant’s sentence is unreasonable or plainly unjust, or is so markedly different from other sentences that there must have been some departure from principle. In other words, it has not been shown that the sentence is manifestly excessive.
For the above reasons, this ground is not made out.
Disposition
Neither of the appellant’s grounds of appeal have been made out.
The appeal is dismissed.
[1] Appeal Book (‘AB’) 32-33.
[2] AB 33.
[3] AB 33.
[4] AB 33-34.
[5] House v The King (1936) 55 CLR 499 at 504-505.
[6] Mitchell v Gibson [2014] NTSC 59 at [12].
[7] Citing Van Toorenburg v Westphal [2011] NTSC 31 at [23] Blokland J.
[8] Citing Jambajimba v Dredge (1985) 33 NTR 19 at 22 per Muirhead ACJ.
[9] Citing Bartusevics v Fisher (1973) 8 SASR 601.
[10] Director of Public Prosecutions v Buhagiar [1998] 4 VR 540 at 547 per Batt and Buchanan JJA.
[11] The Queen v Pullen (2018) 275 A Crim R 509 at [84] per Harrison J (Johnson and Schmidt JJ agreeing). See also at [89] per Harrison J.
[12] Bugmy Bar Book, ‘Impacts of Imprisonment and Remand in Custody’, v Toohey [2006] NTSC 92.
[14] Tran v The Queen [2019] NTCCA 12 at [36] per the Court, citing Whitehurst v The Queen [2011] NTCCA 11 at [27]-[29]; Cook v The Queen [2018] NTCCA 5 at [34].
[15] Tran v The Queen [2019] NTCCA 12 at [39] per the Court, citing Whitehurst v The Queen [2011] NTCCA 11 at [27]-[28].
[16] Tran v The Queen [2019] NTCCA 12 at [39] per the Court, citing Whitehurst v The Queen [2011] NTCCA 11 at [29].
[17] See, for example, Carr v The Queen [2020] NSWCCA 214 at [47]-[50] per Johnson J (Harrison and Hamill JJ agreeing); McBride v The King [2025] ACTCA 16 at [107] per Baker, Taylor and Abraham JJ.
[18] Edmond 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).
[19] See AB v The King [2023] NTCCA 8 at [70] per the Court.
[20] Veness v The Queen (2020) 285 A Crim R 198.
[21] See Miller, 28 September 2020, Riley AJ.
[22] See Mamarika, 9 March 2018, Barr J.
[23] See Miller, 28 September 2020, Riley AJ; Green, 11 November 2024, Brownhill J; Jaragba, 6 November 2023, Brownhill J; Wanambi, 2 March 2022, Grant CJ.
[24] See Mamarika, 9 March 2018, Barr J; Bob, 6 December 2024, Reeves J.
[25] See Kantila, 19 October 2021, Brownhill J; Thompson, 19 May 2022, Reeves J.
[26] See Paddy, 25 August 2016, Kelly J.
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