SE v Masani - [2024] NTCA 7

CITATION:SE v Masani [2024] NTCA 7
PARTIES:SE
v

MASANI, Kolisi

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:22305339
DELIVERED:  3 December 2024
HEARING DATE:  11 July 2024
JUDGMENT OF:  Brownhill, Huntingford and Reeves JJ
CATCHWORDS:

CRIMINAL LAW – Appeals – Application for extension of time to appeal judgment – Proposed appeal without merit – Application dismissed.
CRIMINAL LAW – Appeals – Proposed appeal against sentence – Youth – Whether primary judge erred by finding that the sentence imposed by the Youth Justice Court was not manifestly excessive – Sentence imposed consistent with sentencing principles for young offenders – Relevance of general deterrence and denunciation where offending is adult-like – Domestic violence as adult-like offending – Appropriate balance between rehabilitation and other sentencing factors – Primary judge not in error.

Criminal Code Act 1983 (NT) s 188(2)
Youth Justice Act 2005 (NT) s 81(6), s 136(1)

AK v The Queen [2021] NTCCA 4, Forrest v R [2017] NTCCA 5, Hili v R (2010) 242 CLR 520, Markarian v R (2005) 228 CLR 357; [2005] HCA 25, R v Goodwin [2003] NTCCA 9, R v Wurramara [1999] NTCCA 45, Richards v R [2024] NTCCA 4, SE v Masani [2023] NTSC 96, TM v The Queen [2017] NTCCA 3, University of Wollongong v Metwally (1985) 60 ALR 68, Wong v The Queen (2001) 207 CLR 584 referred to.

REPRESENTATION:
Counsel:
Applicant:G Chipkin with J Bourke
Respondent:  L Babb SC with L Auld
Solicitors:
Applicant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
SE v Masani [2024] NTCA 7

No. 22305339
BETWEEN:

SE

Applicant

AND:

KOLISI MASANI

Respondent

CORAM: BROWNHILL, HUNTINGFORD and REEVES JJ
REASONS FOR JUDGMENT
(Delivered 3 December 2024)
Introduction

On 21 March 2023 the applicant, who was at the time 16 years of age, pleaded guilty before a judge in the Youth Justice Court to a charge of aggravated assault. He committed that assault in February 2023 on GM, his then domestic partner of two years. GM was 17 years old at the time.
Under s 188(2) of the Criminal Code 1983 (NT) an offence of aggravated assault carries a maximum penalty of five years’ imprisonment.
After an adjournment to obtain a presentence report, the sentencing judge: declined to enter a conviction against the applicant; imposed a sentence of 15 months’ detention on him; and ordered that sentence be fully suspended immediately on certain conditions.
The applicant subsequently appealed that sentence to the Supreme Court on two grounds: that it was manifestly excessive; and that the sentencing judge had failed to have due regard to s 81(6) of the Youth Justice Act 2005 (NT) when imposing a custodial sentence on him. That section expressed one of the principles to be applied in the sentencing of young offenders namely, to impose a sentence of detention or imprisonment on a youth “only as a last resort” and “only if there is no appropriate alternative”.
The primary judge dismissed that appeal. In this application the applicant seeks an extension of time to appeal that judgment. The primary issue is whether an appropriate balance was struck between rehabilitation, on the one hand, and general deterrence, denunciation and community protection, on the other, when sentencing a young offender. For the reasons that follow we do not consider that the primary judge committed any error in dismissing the applicant’s appeal. Accordingly, this application will be dismissed.
Procedural history and the ground of appeal
There is a number of important aspects of the procedural history to this application that deserve noting at the outset. First, as already alluded to, because the applicant failed to file his notice of appeal within 28 days of the delivery of the primary judgment, this matter came before this Court as an application for an extension of time to appeal. However, shortly after the commencement of the hearing of the applicant’s application, the respondent indicated that he did not contest the explanations advanced by the applicant in support of his application but, instead, contended that the application should be refused because the proposed appeal had no merits.
Next, before that indication was given, the applicant sought to amend his proposed grounds of appeal to abandon grounds 1 to 4 inclusive as separate grounds of appeal and, instead, to rely upon them as particulars of ground 5. Since that application was unopposed, orders were made accordingly. That means that the applicant’s sole proposed ground of appeal is former ground 5, as follows: “The primary judge erred by finding that the sentence imposed by the Youth Justice Court was not manifestly excessive in all of the circumstances”.
It also means that the particulars of that ground, as contained in what were grounds 1 to 4 are as follows:
1.    The primary judge erred by finding that the offending was 'adult-like'.
2.    The primary judge erred by having regard to an irrelevant sentencing consideration, namely, the prevalence of domestic violence offences committed by adult men against adult women and the need to deter adult men from committing such offences, whereas the offender and victim in this case were both youths.
3.    The primary judge erred by finding that there was 'no practical difference' in the different sentencing options available (specifically as between a suspended sentence, good behaviour bond or community work order) except as to how the sentence would appear on the appellant's record.
4.    The primary judge erred by misapplying the principles in relation to the sentencing of youth offenders, namely, that these principles are not readily applicable 'in a case such as this where the sentence is fully suspended'.
At this point, two things are worth noting with respect to these procedural matters. First, because the second ground of appeal before the primary judge is no longer being pursued,[1] the sole ground of appeal before both his Honour and, as proposed, before this Court, is substantially the same. Secondly, neither before the primary judge, nor before this Court, has the applicant made any direct challenge to any of the factual findings made by the sentencing judge.
The circumstances of the offending
At the hearing before the sentencing judge on 21 March 2023, an amended statement of facts was tendered as an exhibit and then recited to the Court. Immediately after that occurred, the applicant’s lawyer stated that those facts were admitted. In his judgment, the primary judge provided the following summary of those facts:[2]
The appellant (aged 16) and the victim (aged 17) were in a domestic relationship and had been partners since 2021. At 12.27 am on Friday 17 February 2023, GM was walking on the footpath at Gregory Terrace, Alice Springs, with some relatives. Without reason, SE approached GM and assaulted her. He punched her twice to the body, then kicked her legs in an attempt to make her lose her footing. As a result of that she fell over. He then forcibly kicked her another three times while she was on the ground. That caused her immediate pain. She yelled out to her relatives for help. He continued to assault her by hitting her over the head and body with a steel [dish] rack. GM attempted to get up off the ground but SE continued to assault her with the steel rack, causing her to fall back onto the ground. He forcibly kicked her to the face as she was cowering in pain. He continued to kick her to the back. He then told her to get up and follow him. He threatened that if she didn’t get up and follow him he would continue to assault her. GM was afraid of SE and followed him to the Council lawns where she used a bubbler to wash blood off her face. Police arrived while she was doing that.
In addition to pain all over her body, GM sustained a one centimetre gaping laceration to the back of her head. She was taken to Alice Springs Hospital where she received medical treatment for her injuries.[3]
The sentencing judge’s remarks
The sentencing judge began his remarks on 5 May 2023 by describing the charge against the applicant, by identifying the maximum penalty for the offence concerned and by emphasising how seriously that offence was regarded by the Legislature. He then turned to make some observations about the significance of the domestic context in which the applicant’s assault had occurred. They included:
You’ve been in a relationship [with GM]……for a little while …... You were both quite young. I think you would have been about 14 and she was about 15 when your relationship began. ……[W]hen you … enter into a domestic relationship with someone, it does come with a lot of responsibility to make sure you look after that person in a good way.[4]
In this regard, his Honour later referred to GM’s victim impact statement in which she said, among other things, that she was afraid of the applicant. He also referred to the photographs before him depicting the injuries she had suffered and to the fact that he had, earlier in the proceeding, put in place a full no contact Domestic Violence Order to protect her.
Next, his Honour highlighted some of the salient features of the applicant’s offending including: that he became enraged with GM because he thought he was being teased by her; that he assaulted her with a rake [sic, rack]; that he kicked her and struck her face and back while she was on the ground and vulnerable; and that his assault was “graphically depicted in the CCTV footage” and “continued for some time”.
The sentencing judge then recorded several mitigating factors which ultimately led him to conclude that the applicant had “solid prospects for [his] future”. They included: that his conduct was “very out of character”; that it was the first time he had come before a court “for any trouble at all”; that he was “well supported” by his family; and that while he was on bail he had complied with the conditions thereof “very very well”.
On the question whether general deterrence was a relevant sentencing factor where an offender is young and has an excellent personal background and unblemished record, but has committed an offence involving domestic violence, his Honour made the following observations:
As was highlighted by [your lawyer], usually, general deterrence is not a significant sentencing factor in this court. Nor is it usually when young people like yourself, of prior good character come to court. Unfortunately, domestic violence is prevalent and your conduct can only be viewed as very adult in nature. And the court has a responsibility to say to you, and other people in the community, if you want to get involved in domestic violence, you can only expect that the court will treat it very seriously. And deal with it in an appropriate way.[5] (emphasis added)
With particular regard to his status as a young Aboriginal male person, his Honour added:
You have ….I’ve been told, completed some cultural ceremonies with the senior men in your family group. And you know, real men don’t behave like this towards their partners. ….it’s expected that you’ll care for your family, in a good way, and not get involved in domestic violence.[6]
In balancing all these matters, the sentencing judge concluded that the applicant’s “violent assault” on GM warranted him serving a sentence of 15 months detention. In fixing this period, his Honour’s starting point was 20 months from which he made a 25% reduction to take account of the applicant’s early plea of guilty. However, because of his prior good record and good prospects for rehabilitation his Honour considered that no conviction should be recorded against the applicant and that his sentence of detention should be suspended immediately: “on your promise to stay out of trouble for the next 14 months” and to comply with the five conditions set out in the pre-sentence report.
The primary judge’s reasons
In the introductory section of his reasons, the primary judge: described the charge against the applicant, including its four circumstances of aggravation, identified the maximum penalty applicable to the offence of aggravated assault, detailed the sentence that had been imposed by the sentencing judge and summarised the two grounds of appeal before him.[7] His Honour then set out the summary of the applicant’s offending to which reference has already been made.[8]
Thereafter, his Honour identified the principles that applied to sentencing appeals where manifest excess was a ground of appeal and the main sentencing principles set out in the Youth Justice Act.[9] Following that review, he reviewed several authorities that discussed the importance of rehabilitation as the predominant factor when sentencing young offenders and the circumstances in which general deterrence may emerge as a relevant consideration.[10]
In connection with the latter, his Honour examined the circumstances in which a period of detention or imprisonment may be ordered in the sentencing of a young offender. In addition to serious and repeat offending he identified offending which involved “adult-like” behaviour as warranting that outcome.[11] His Honour exemplified drug and driving offending as the type of behaviour that justified such a characterisation.[12] To these examples he added: “…situations where small groups of youths engage in criminal activities at night time, taking the form of property offences and in some cases assaults and robbery. And, unfortunately, domestic violence against Aboriginal women and girls.”[13]
With respect to this last form of “adult-like” behaviour, his Honour referred to the long standing and “awful predicament of some Aboriginal women being treated violently by their Aboriginal partners”. He pointed out that such behaviour had been lamented for decades by Northern Territory Courts and provided, as an example, the Northern Territory Court of Criminal Appeal judgment in R v Wurramara.[14]
With respect to the question whether such behaviour may warrant a period of detention or imprisonment being imposed on a young offender, his Honour observed:
Unfortunately violence inflicted by some Aboriginal men upon their Aboriginal partners remains particularly prevalent in and near Alice Springs. This requires a Court to place strong emphasis upon denunciation, general deterrence and the need to protect other Aboriginal women from such violence. This is particularly important in relation to youthful offenders, and more so where their victims are also very young. Other youths need to be made aware that if they engage in this kind of conduct they are liable to be sentenced to a term of detention, notwithstanding that they are youths.[15]
Finally, on matters of principle, his Honour expressed the view that the rationale for avoiding the imposition of a period of actual detention on a young offender, in order to avoid adversely affecting his or her successful rehabilitation, “ ...is not so readily applicable in a case such as this where the sentence is fully suspended”.[16] In this respect, he went on to compare the differing consequences that applied to a breach of a suspended sentence under the Sentencing Act and the Youth Justice Act.[17]
In applying these principles to the applicant’s case, the primary judge considered that the following aspects of his offending justified its characterisation as both objectively serious and adult-like in nature:
….. In addition to the fact that it was a case of domestic violence against his young partner, it was unprovoked and prolonged, involved him kicking GM to the face and back when she was on the ground, and him using the steel rack as a weapon and hitting her to the head and body several times. Also, it occurred in the presence of some relatives who apparently felt unable to assist despite her calling to them for help. Moreover, he continued to assert his control over GM by threatening to continue to assault her if she did not get up and follow him. I consider that this offending falls at the mid-range of offending for this kind of offence.[18]
Accordingly, his Honour concluded that the sentencing judge had struck the correct balance between rehabilitation and general deterrence when imposing an immediately suspended sentence of detention on the applicant. Specifically, he said:
The need for denunciation, general deterrence and protection of other Aboriginal girls, was properly reflected by the Youth Justice Court ordering detention. The need for rehabilitation was properly reflected in the normal way by suspending that sentence, in the present case without requiring the appellant to spend any time in actual detention. The appellant’s good character and good prospects of rehabilitation were also reflected by his Honour ordering no conviction be entered.[19]
Reinforcing the need to include an element of general deterrence in sentences for offences involving domestic violence his Honour added:
It was and remains important that the appellant, and other men, particularly young men as they embark upon domestic relationships, be made fully aware that if they engage in this kind of violent and prevalent behaviour, detention or imprisonment may well follow. Furthermore, that members of the community, particularly Aboriginal women, be protected from such behaviour insofar as it is possible for Court orders to achieve such an important objective.[20]
The primary judge reiterated many of these remarks in the concluding paragraphs of his reasons where he dismissed the manifest excess ground of appeal before him. He said:
I do not consider that the period of detention ordered, namely 15 months detention after a 25% discount, was manifestly excessive. As I have said, the offending was very serious, and this kind of offending, namely domestic violence against Aboriginal women, is prevalent, rendering it important that the sentence properly reflect the need for general deterrence. A starting point of 20 months was well within the range of sentences imposed in other cases with comparative circumstances.[21]
The first alleged error – former ground of appeal 1
As noted earlier, each of these former grounds of appeal is now advanced as a particular of the sole remaining ground of appeal: that the sentence imposed by the sentencing judge was manifestly excessive. Considered in that light, it is not immediately apparent how this particular achieves that purpose. It baldly asserts that: the primary judge, not the sentencing judge, erred by finding that the [applicant’s] offending was 'adult-like'.
That state of affairs is not clarified in the applicant’s written submissions. The only errors identified in those submissions, concerning this particular, were that the primary judge did not explain why his offending was adult-like and that he did not have regard to numerous alleged childlike features of his conduct. Those features were said to include that: there was no evidence of planning or premeditation; there was no attempt by the appellant to conceal his identity during the offending; there was no attempt by the appellant to avoid detection afterwards; the offending was committed in an open public space in the Alice Springs CBD…..; the victim was in company with family members at the time and called out for their assistance….; the brazen nature of the offending ….; while the offending involved the use of a weapon being a metal dish rack…it was …..[not] an inherently dangerous weapon such as a knife or baton; and the appellant had no prior criminal history.
There are several reasons why this alleged error is unmeritorious and does not justify the applicant being granted an extension of time to appeal. First, the original finding about the “adult-like” nature of the applicant’s offending was made by the sentencing judge, not the primary judge. So much appears in the summary of the sentencing judge’s remarks set out earlier where he observed that: “Unfortunately, domestic violence is prevalent and your conduct can only be viewed as very adult in nature”. (emphasis added).[22] As already mentioned, that finding was not challenged before the primary judge and nor has it been challenged in this appeal. In those circumstances, it is difficult to see how the primary judge erred in adopting it or, consistent with long established principle, why the applicant should now be permitted to pursue it before this Court.[23]

In any event, even if that course were to be permitted, it would fail. That is so because, as is clearly apparent from the summary of his judgment set out earlier,[24] the primary judge gave detailed and cogent reasons why the sentencing judge was correct in making that finding. Whether or not the applicant’s conduct coincidentally reflected some of the childlike features he claims in his contentions above does not relevantly affect this conclusion.[25] A young person who enters into a domestic relationship takes on the adult responsibilities of such a relationship and, generally speaking, their commission of violence against their partner is inherently ‘adult-like’, given the context of the relationship.
The second alleged error – former ground of appeal 2
This particular is expressed in the following terms: “the primary judge erred by having regard to an irrelevant sentencing consideration, namely, the prevalence of domestic violence offences committed by adult men against adult women and the need to deter adult men from committing such offences, whereas the offender and victim in this case were both youths”.
As with the previous particular, there are several reasons why this alleged error is unmeritorious and does not justify the applicant being granted an extension of time to appeal. First, on its face it proceeds on the erroneous assumption that the primary judge was the sentencing judge. Patently that is not so. Instead, his Honour was considering an appeal from the sentencing judge’s decision, the sole relevant ground of which was that the sentence that he imposed on the applicant was manifestly excessive.
More importantly, as with the previous particular, the alleged error advanced in this particular was not raised before the primary judge. In those circumstances, it gives rise to the same difficulties as were identified with respect to that particular.[26]
Moreover, during both hearings before the sentencing judge, the applicant’s lawyer expressly conceded that the prevalence of domestic violence in the Alice Springs community was a relevant sentencing consideration and the sentencing judge relied on those concessions, in part, in his sentencing remarks.
Specifically, during his submissions on 21 March 2023, the applicant’s lawyer said: “…I am obviously conceding to your Honour that, firstly, domestic violence is a stain on our community and despite being in the Youth Court,…. deterrence still has some work to do I would say. Limited of course because of age and lack of priors but still, in my submission general deterrence has some application because of the prevalent nature of the offending”.[27]
He then reiterated these sentiments in his submissions on 5 May 2023 when he said: “…while deterren[ce] has a – generally a lower consideration in the Youth Court, I accept in our context of Alice Springs, where domestic violence is very common, I accept deterren[ce] has some work in the sentencing exercise”.[28]
Given the circumstances of the applicant’s offending and the clear terms of these concessions, it is unsurprising that the sentencing judge made specific mention of them in his sentencing remarks.[29]
Finally, and in any event, we reject the proposition contained in this particular as wrong in principle. As the primary judge explained in his reasons,^[30] while the prevalence of domestic violence is a factor that raises the need to deter all males from offending in that manner, the correlated need to protect Aboriginal women from such violence has particular resonance when the female victim is “very young”. In addition, where the male offender is also quite young, general deterrence has a particular role in deterring other young males from engaging in the same violent conduct and thereby, hopefully, diverting them from embarking on a course of offending that carries with it a notorious rate of recidivism.
For these reasons, this alleged error is unmeritorious and does not justify the applicant being granted an extension of time to appeal.
The third alleged error – former ground of appeal 3
This particular alleges that: “the primary judge erred by finding that there was 'no practical difference' in the different sentencing options available (specifically as between a suspended sentence, good behaviour bond or community work order) except as to how the sentence would appear on the appellant's record”.
It concerns the following conclusion that the primary judge reached in one of the concluding paragraphs of his reasons:
The only practical difference between the different forms of sentence in the present case is that the appellant’s record would show that he had been sentenced to detention, as distinct from sentenced to a GBO or CWO.[31]
The applicant contended that, contrary to these remarks, there was a real tangible difference between a sentence of detention, albeit fully suspended, and a Good Behaviour Bond or a Community Work Order. They included, so he contended: that the former was custodial in nature and the latter non-custodial; that a suspended sentence carries with it a greater risk of incarceration; and that, because he was more than 16 years old, the prohibition in s 136(1) of the Youth Justice Act no longer applies to him.[32]
In response, the respondent contended that the applicant had misconceived the effect of his Honour’s comments and that, when his reasons were read as a whole, it was apparent that he made no such finding. This was so, he submitted, because in that, and earlier passages, his Honour had explained how the immediate suspension of the applicant’s sentence of detention meant that, in practical terms, he was not actually incarcerated and, instead, was free to pursue his rehabilitation, albeit on conditions. As well, so he contended, his Honour explained how the term and nature of the applicant’s suspended sentence, namely 15 months’ detention, appropriately operated to serve the ends of general deterrence and community protection.
For the following reasons, we accept the general thrust of the respondent’s contentions and reject those of the applicant. To begin with, his Honour did not actually make a finding in the terms quoted in this particular. That is to say, his Honour did not find there to be ‘no practical difference’ between the sentencing options mentioned but rather he found that: “The only practical difference between the different forms of sentence in the present case is that the appellant’s record would show that he had been sentenced to detention, as distinct from sentenced to a GBO or CWO.”
When this conclusion is read in the context of the detailed reasoning that preceded it, we do not consider it is erroneous as alleged. In truncated form, his Honour’s reasoning proceeded as follows. First, in one of the initial paragraphs of his reasoning on this point,[33] his Honour emphasised (by underlining) the following parts of [26] and [27] of TM:
The focus on rehabilitation over deterrence in the case of youthful offenders is directed to the offender’s capacity to alter his or her behaviour so as not to reoffend, and to ensure the youth is dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways. Rehabilitation may carry far less weight in respect of a repeat offender who has previously been afforded a number of opportunities to modify his or her behaviours through the imposition of non-custodial dispositions, but has failed to do so and has committed a very serious criminal offence. In such cases the prospects of rehabilitation may be considered as diminished, and the weight properly attributed to rehabilitative purpose in the sentencing process lessened as a result. The youth must be held accountable and made aware of his or her obligations under the law and the consequences of contravening the law. The court must maintain a proper balance between the needs of the youth, the rights of the victim and the interests of the community.
This is not to say that the prospects of rehabilitation will necessarily be considered as extinguished in cases of serious offending. It is only to say that the manner in which the balance is to be struck between rehabilitation and the other sentencing purposes will be guided by a consideration of both the seriousness of behaviour and the prior criminal history. That balance will be reflected in such matters as whether the sentence is custodial or non-custodial; and, if custodial, the length of the head sentence, whether a non-parole period or an order suspending sentence is imposed, and the minimum time to be served. By way of example, the purposes of punishment, denunciation and deterrence may be primarily served by the imposition of a stern head sentence, while at the same time the purpose of rehabilitation may be primarily served by an order suspending sentence after a period of incarceration of lesser duration than would otherwise have been required but for the offender’s youth.
Next,[34] his Honour conducted a similar exercise with respect to [35] of TM as follows:
Although the sentencing court takes into account the same considerations which inform fixing the head sentence, it may be expected to apply different weightings to those considerations for the purpose of determining whether an order suspending sentence should be made and, if so, after what period of imprisonment. It is both legitimate and appropriate where warranted by the circumstances of the case for a sentencing court to give greater weight to the purposes of punishment, denunciation and deterrence when fixing the head sentence, and to give greater weight to the purpose of rehabilitation in making an order suspending sentence.
Then,[35] his Honour discussed the effect that actual detention had on a young offender’s successful rehabilitation as follows:
Broadly, the rationale underlying Mills and most of the other cases concerning young offenders is that the likelihood of successful rehabilitation of a young offender will not be assisted, rather may well be impaired, if the offender is actually detained or imprisoned and thereby exposed to other criminals. This is reflected in the principle in s 4(c) of the Act, that: “a youth should only be kept in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the shortest appropriate period of time.”
In the succeeding paragraph to this discussion, his Honour distinguished the “broad rationale” underpinning these observations and he then contrasted the differing consequences applying to a breach of a suspended sentence under the Sentencing Act and the Youth Justice Act.[36]
Next,[37] his Honour summarised the competing ends that were served by the sentence that was imposed on the applicant.
Finally on this aspect, in the three paragraphs immediately preceding the subject paragraph,[38] his Honour returned to a discussion of the consequences that would flow from a breach of the condition of the applicant’s suspended sentence order as follows:
In this case, the appellant knows that if he does anything like this again or otherwise breaches the terms of his suspended sentence, he may be re-sentenced and be then ordered to spend some time in detention.
Even if his Honour had imposed a different penalty such as a good behaviour order or a community work order, it is likely that the same conditions would have been attached.
Re-offending or non-compliance would ultimately likely result in the same consequences, whether it be a warning, an extension of the relevant operational period, variation or addition of conditions, or imposing a period of detention. This is so whether the Court is dealing with a breach of a Good Behaviour Order (GBO) ordered under s 83(1)(f) and s 91, breach of a Community Work Order ordered under s 83(1)(h) and s 94, or a breach of a suspended sentence ordered under s 83(1)(i) and s 98(2). Section 121(6) requires the Court to confirm or vary the order, or revoke the order and resentence the offender.[39]
In our view, this truncated review of the primary judge’s reasoning amply demonstrates that his Honour was correct in his conclusion which is attacked by this particular that the only practical difference between the different forms of sentence under consideration by the sentencing judge was the form in which the applicant’s sentence would appear on his record. For these reasons, this alleged error does not provide a basis for the applicant being granted an extension of time to appeal.
The fourth alleged error – former ground of appeal 4
In this last particular, the applicant alleges that the primary judge erred: “…by misapplying the principles in relation to the sentencing of youth offenders, namely, that these principles are not readily applicable 'in a case such as this where the sentence is fully suspended'”. The observations to which this alleged error relates are already set out above.[40]
This particular may be disposed of briefly. In our view, it is clear from the summary of his Honour’s reasons that we set out earlier[41] and from the truncated, but more detailed, review that we conducted with respect to the previous alleged error[42] that his Honour carefully considered the principles concerning the sentencing of young offenders in the course of determining that the sentencing judge had correctly applied those principles when he sentenced the applicant to an immediately suspended term of detention without recording a conviction. This alleged error does not, therefore, provide a basis for granting the applicant an extension of time to appeal.
The sole ground of appeal – former ground of appeal 5
Having disposed of the four particulars advanced in support of the applicant’s sole ground of appeal, we turn, finally, to the ground itself. It alleges that: “The primary judge erred by finding that the sentence imposed by the Youth Justice Court was not manifestly excessive in all of the circumstances”.
Having reached the conclusion noted earlier with respect to the appropriateness of imposing an immediately suspended term of detention on the applicant, the primary judge dismissed the equivalent ground before him in the following terms:
I do not consider that the period of detention ordered, namely 15 months detention after a 25% discount, was manifestly excessive. As I have said, the offending was very serious, and this kind of offending, namely domestic violence against Aboriginal women, is prevalent, rendering it important that the sentence properly reflect the need for general deterrence. A starting point of 20 months was well within the range of sentences imposed in other cases with comparative circumstances.[43]
In his written submissions, the applicant accepted that it could be inferred that the sentencing judge found his offending to be in the mid-range of objective seriousness. As can be seen above, the primary judge made an express finding to that effect. However, despite not having challenged either of these findings in this appeal the applicant submitted that: “if the matter did fall within the middle range, and it is not entirely clear that it did ..[respectfully, it is submitted that the offending fell between the low and middle range].. it was certainly at the lower end”. On that footing, combined with all of the mitigating matters identified by the sentencing judge including: that he was a young person of good character, with no prior convictions; that he had entered an early plea of guilty; and that he had good prospects for rehabilitation, the applicant contended that his sentence was manifestly excessive. Finally, while accepting that each matter turned on its own facts and circumstances, he also relied on several comparative sentences, to emphasise that the starting point of 20 months’ detention fixed by the sentencing judge “was almost that indicated as appropriate for adult offenders with significant histories”.
In response the respondent submitted that the sentence was well within the sentencing judge’s sentencing discretion in that it appropriately combined a term of detention, to reflect the gravity of the offending and to denounce the conduct involved, with the decisions to immediately suspended that term of detention and not to record a conviction, to reflect youth sentencing principles. As for the applicant’s reliance on comparative sentences the respondent emphasised that: “[A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases” citing Wong v The Queen.[44]
The principles concerning a ground of appeal of this kind are well-established. They applied as equally to the appeal before the primary judge, as they do to this appeal. One begins from the presumption that there is no error. The appellant is then required to show that an error exists, either arising from some identifiable misapplication of principle, or by inference from an assessment that the sentence is “unreasonable or plainly unjust”. To be “manifestly excessive” the sentence must be “clearly and obviously excessive”, not just arguably so. That determination is made having due regard to the fact that sentencing judges are, in the exercise of their sentencing discretion, “allowed as much flexibility … as is consonant with consistency of approach and application of principle”. Accordingly, an appellate court is not to substitute its opinion for that of the sentencing judge merely because it would have exercised that discretion differently.[45]
We do not consider that the primary judge erred in concluding that the sentence imposed by the sentencing judge was not manifestly excessive. As his Honour explained in his reasons, the sentence that the sentencing judge imposed was consistent with sentencing principles in that it had due regard for the seriousness and nature of the applicant’s offending, namely serious domestic violence, and the consequent need for general deterrence and denunciation while, at the same time, properly and appropriately accommodating his demonstrably good prospects for rehabilitation as a young offender. As for the comparative sentences advanced by the applicant, we agree with the respondent: in the peculiar circumstances of this matter they do not assist.
Disposition
For these reasons, neither the particulars of error advanced with respect to, nor the substance of, the applicant’s sole proposed ground of appeal, have any merits. Accordingly, there is no purpose in granting him an extension of time to pursue his proposed appeal. The order is:
1.That the applicant’s application for an extension of time to appeal filed 6 March 2024 is dismissed.
---------------------------

[1] See at [4] above.

[2] At the hearing of this application the parties accepted that this summary was accurate.

[3] SE v Masani [2023] NTSC 96 (‘SE’) at [4]-[5].

[4] Transcript of 5 May 2023 at AB83.

[5] Transcript of 5 May 2023 at AB84.

[6] Transcript of 5 May 2023 at AB84.

[7] SE at [1]-[3].

[8] SE at [4]-[5] set out at [10] above.

[9] SE at [6]-[11].

[10] SE at [12]-[24].

[11] SE at [18] having reviewed, among other authorities, the Northern Territory Court of Criminal Appeal judgments in R v Goodwin [2003] NTCCA 9, AK v The Queen [2021] NTCCA 4 and TM v The Queen [2017] NTCCA 3 (‘TM’).

[12] SE at [20] quoting Fox & Freiberg at p 355.

[13] SE at [21].

[14] [1999] NTCCA 45; see SE at [22].

[15] SE at [23].

[16] SE at [25].

[17] SE at [25].

[18] SE at [26].

[19] SE at [37].

[20] SE at [38].

[21] SE at [43].

[22] See at [15] above.

[23]See University of Wollongong v Metwally (1985) 60 ALR 68 at 71.

[24]See at [21] to [23] and [25] above.

[25] In this respect it is worth noting that some of those features are patently repetitive, others are not consistent with established sentencing principles, namely that the absence of an aggravating factor is not a mitigating factor, and the last is not obviously relevant.

[26] See at [30] above.

[27] Transcript of 21 March 2023 at AB71.

[28] Transcript of 5 May 2023 at AB82.

[29] See at [15] above and the emphasis added.

[30] See SE at [23] set out at [22] above.

[31] SE at [42].

[32] That prohibition prevents a court other than the Youth Justice Court taking into account a finding of guilt made with respect to a juvenile who is 15 years or younger in respect of an offence for which no conviction is recorded.

[33] SE at [13].

[34] SE at [17].

[35] SE at [24].

[36] SE at [25] partly set out at [23] above.

[37] SE at [37] set out at [25] above.

[38] SE at [42] set out at [42] above.

[39] SE at [39]-[41].

[40] SE at [24]-[25] set out at [48]-[49] above.

[41] See at [18]-[27] above.

[42] See at [46]-[51] above.

[43] SE at [43].

[44] (2001) 207 CLR 584 at [58].

[45] See Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25]-[28], Hili v R (2010) 242 CLR 520 at [60], Forrest v R [2017] NTCCA 5 at [63]-[64] and Richards v R [2024] NTCCA 4 at [35]-[36].