The King v Thompson
[2023] NTCCA 3
•23 March 2023
CITATION: The King v Thompson [2023] NTCCA 3
PARTIES: THE KING
v
THOMPSON, Jason Dallas Dean
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:No. CA 9 of 2022 (22123153)
DELIVERED: 23 March 2023
HEARING DATE: 17 November 2022
JUDGMENT OF: Grant CJ, Kelly and Blokland JJ
CATCHWORDS:
SENTENCING – Appeal against sentence – Sentence contrary to law
Whether subss 121(6)(b) and (7) of the Domestic and Family Violence Act 2007 (NT) only require the accumulation of a sentence imposed for the contravention of a DVO in circumstances where the offender has been sentenced to a term of imprisonment in an earlier sentencing exercise – Whether provisions require accumulation of sentences imposed during a single sentencing exercise – If multiple sentences of imprisonment imposed in a single sentencing exercise the accused "has been sentenced to serve a term of imprisonment for another offence" within the meaning of subs 121(6)(b) of the Domestic and Family Violence Act – In those circumstances, subs 121(7) mandates that all sentences for contravention of DVO offences be served cumulatively upon each other and any other sentence imposed – No legislative intention for different operation – Supreme Court in error – Appeal dismissed in the exercise of the residual discretion.
Domestic and Family Violence Act 2007 (NT), s 121
Idai v Malagorski (2011) NTLR 166, Lorenzetti v Brennan [2021] NTSCFC 3, Watson v Chambers [2013] NTSC 7, referred to.
REPRESENTATION:
Counsel:
Appellant:M Aust
Respondent: N Redmond
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission
Judgment category classification: B
Number of pages: 24
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Thompson [2023] NTCCA 3
No. CA 9 of 2022 (22123153)
BETWEEN:
THE KING
Appellant
AND:
JASON DALLAS DEAN THOMPSON
Respondent
CORAM: GRANT CJ, KELLY & BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 23 March 2023)
THE COURT:
The single issue arising for determination in this appeal is whether the operation of subss 121(6)(b) and (7) of the Domestic and Family Violence Act 2007 (NT) (“DFV Act”) only requires the accumulation of a sentence imposed for the contravention of a DVO in circumstances where the offender has been sentenced to a term of imprisonment in an earlier sentencing exercise, and does not apply to require the accumulation of sentences imposed during a single sentencing exercise.
Background
On 19 May 2022 the respondent pleaded guilty to four aggravated assaults on JM (charged on indictment) and four breaches of a domestic violence order (“DVO”) under which JM was the protected person (charged on complaint). The conduct giving rise to the breaches of the DVO was the same conduct that constituted the aggravated assaults.
After applying a discount of 25 per cent in recognition of the respondent's guilty pleas, the sentencing judge sentenced the respondent to 18 months' imprisonment for each of the aggravated assault charges. The respondent was sentenced to imprisonment for one month on the first DVO offence and imprisonment for three weeks for each of the other three DVO offences. Upon a consideration of the totality principle, the sentencing judge ordered the sentences for the aggravated assault charges to be served concurrently with each other and the sentences for the DVO offence s to be served concurrently with each other. His Honour then said:
Because of the provisions of s 121(7) of the Domestic and Family Violence Act, I order that the cumulative term of imprisonment on the indictment counts be served cumulatively with the cumulative term of imprisonment on the four complaints.
That resulted in a total period of imprisonment of 19 months which was backdated to the time of the respondent’s arrest on 31 July 2021. The sentencing judge ordered the sentence to be suspended forthwith subject to conditions with an operational period of 12 months.
An application to re-open the sentencing proceedings pursuant to s 112 of the Sentencing Act 1995 (NT) was subsequently made to the sentencing judge. That application was refused on the ground that the sentencing judge did not consider that the sentence imposed was not in accordance with the law.[1]
Section 121 of the DFV Act provides:
121 Penalty for contravention of DVO – adult
(1) If an adult is found guilty of an offence against section 120(1), the person is liable to a penalty of 400 penalty units or imprisonment for 2 years.
(2) The court must record a conviction and sentence the person to imprisonment for at least 7 days if the person has previously been found guilty of a DVO contravention offence.
(3) Subsection (2) does not apply if:
(a)the offence does not result in harm being caused to a protected person; and
(b)the court is satisfied it is not appropriate to record a conviction and sentence the person under the subsection in the particular circumstances of the offence.
(4) In addition, subsection (2) does not apply to a police DVO that has not been confirmed by the Court under Part 2.10.
(5) The court must not make an order for a person who has previously been found guilty of a DVO contravention offence if the order would result in the release of the person from the requirement to actually serve the term of imprisonment imposed.
(6) Subsection (7) applies if, when the person is sentenced under this section to serve a term of imprisonment for the offence, the person:
(a)is serving a term of imprisonment for another offence; or
(b)has been sentenced to serve a term of imprisonment for another offence.
(7) Despite section 50 of the Sentencing Act 1995, the court must not direct the term of imprisonment to be served concurrently with the other term of imprisonment mentioned in subsection (6)(a) or (b).
In the application under s 112 of the Sentencing Act, the Crown contended that subs 121(7) of the DFV Act dictates that each discrete sentence of imprisonment for contravening a DVO must be served cumulatively on whatever sentence preceded it in the course of the sentencing orders. Hence, the total sentence for the DVO offences ought to have been imprisonment for 12 weeks.
The respondent contended that “the other term of imprisonment” in subs 121(7) is directed to the expression the “term of imprisonment for another offence” in subss 121(6)(a) and (b), and that the words “for another offence” in those subsections are to be contrasted with the expression “a DVO contravention offence” in subss 121(2) and (5). On that basis the respondent contended that subs 121(7) of the DVF Act only applies to require accumulation as between a term of imprisonment imposed for “another offence” and that imposed for “a DVO contravention offence”. It does not apply to require accumulation between the term of imprisonment imposed for consecutive DVO contravention offences. That argument was accepted by the sentencing judge who held, accordingly, that he did not consider that the sentences imposed were not in accordance with the law and so refused the application to reopen the proceedings to correct the sentence under s 112 of the Sentencing Act.
Grounds of appeal
The appellant advances two grounds of appeal.
1. That the learned sentencing judge erred by imposing a total effective sentence which resulted in all or part of the sentences imposed in respect of the second, third and fourth complaint counts being made concurrent with each other and with the sentence imposed in respect of the first complaint count (which sentencing orders were contrary to the requirements of s 121(7) of the Domestic and Family Violence Act.
2. In the alternative to ground one, the learned sentencing judge erred by refusing and dismissing the appellant's application to re-open the proceeding pursuant to section 112(1)(a) Sentencing Act 1995 (NT) and correct a sentence that was not in accordance with the law.
It is now common ground in this appeal that the argument put forward by the respondent in the application under s 112 of the Sentencing Act should not have been accepted by the sentencing judge. That concession was properly made by the respondent.[2]
The parties’ contentions on appeal
The appellant’s position in this appeal remains the same. The appellant contends that the effect of subss 121(6) and (7) of the DFV Act is that each discrete sentence of imprisonment for contravening a DVO must be served cumulatively on whatever sentence preceded it in the course of the sentencing orders.
Having conceded that the term “another offence” in subs 121(6) of the DFV Act is apt to refer to any other offence, including the contravention of a DVO, the respondent now contends that for subs 121(6)(b) to apply, the offender must have been sentenced to a term of imprisonment on another occasion. On that interpretation, subs 121(7) would not apply to require accumulation of sentences imposed during a single sentencing exercise since in such a case all component sentences are imposed simultaneously at the conclusion of the proceedings.
The respondent’s contention depends upon acceptance of the proposition that component sentences are not imposed in the order in which they are announced during a sentencing exercise. Rather, a sentence has not been imposed for the purpose of subs 121(6)(b) of the DFV Act until it is perfected, and the court becomes functus officio. We do not accept this foundational proposition.
Interpretation of subss 121(6) and (7) of the DFV Act
The appellant contends that the provisions of subss 121(6) and (7) have been considered by the Northern Territory Supreme Court and Full Court and applied consistently since 2011. The appellant relies upon the decision of Barr J in Idai v Malagorski,[3] the decision of Blokland J in Watson v Chambers,[4] and the decision of the Full Court in Lorenzetti v Brennan.[5]
The respondent concedes that the interpretation of these two subsections contended for by the appellant is the interpretation that the subsections have been given for a considerable period of time. However, the respondent contends that the interpretation it advances in this appeal has not been considered by the Full Court or the Court of Criminal Appeal. It has only been the subject of the single judge decision in Watson v Chambers and the arguments now advanced by the respondent were not put in that case.
The earlier authorities
In Idai v Malagorski, Barr J determined that subs 121(7) of the DFV Act was a mandatory positive requirement that the court order accumulation of sentences where a person sentenced under s 121 for a DVO contravention is either serving or has been sentenced to serve a term of imprisonment for another offence.[6] In doing so, his Honour said:[7]
The legislative history of s 121 indicates that the present s 121(6) and (7) were inserted by s 28 Domestic and Family Violence Amendment Act 2010 [Act 47 of 2010, commenced 2 February 2011] to remedy perceived shortcomings in the former s 121(6) and (7). The mischief in the former subsections was identified in the Attorney-General’s second reading speech as follows:-
“Sentencing for breach of a DVO: the bill also amends section 121 of the act to clarify the provisions concerned with sentencing persons who have breached a DVO. Under section 121 of the act, an adult who is found guilty of contravening a DVO is liable to a penalty of 400 penalty units ($53 200) or imprisonment for two years. Under section 121(2) of the act, if a person has previously been found guilty of contravening a DVO, they must be sentenced to serve at least seven days imprisonment. If a person found guilty of contravening a DVO is sentenced to a term of imprisonment, section 121 provides that if they are already serving another term of imprisonment for another offence, the court must direct the term of imprisonment to start from the end of the other term of imprisonment. These provisions are specifically stated to apply despite the Sentencing Act.
The aim of section 121 is to ensure that any sentence for a contravention of a DVO is served in addition to other terms of imprisonment. However, s 121 as currently drafted is open to an interpretation that the sentence for contravention of a DVO can be served concurrently with another sentence. The bill amends section 121 in order to ensure that persons who are found guilty of contravening a DVO and who are sentenced to a term of imprisonment, will serve that term of imprisonment. The amendment ensures that if a person is already serving a term of imprisonment, any sentence they receive for contravening a DVO will need to be served and cannot be served concurrently – they will be locked up for longer as a result of their contravention.” [Delia Lawrie, Attorney General, Second Reading Speech, Domestic and Family Violence Bill 2010, Dec 2010.]
The legislative intent or purpose was thus made clear. While in some contexts it is true that “the words of a Minister must not be substituted for the text of the law” [Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ], the court must look to the operation of the statute according to its terms and to legitimate aids to construction. Under s 62A Interpretation Act a construction that promotes the purpose or object underlying an Act is to be preferred to a construction that does not promote the purpose or object. Under s 62B Interpretation Act, extrinsic material (including a second reading speech) may be considered in determining the meaning of a provision of an Act when “the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is ... unreasonable.” [Interpretation Act (NT) s 62B(1)(b)(ii).]
The ordinary meaning of s 121(7) leads in my view to a result that is “unreasonable” in that it is contrary to reason or good sense. The ordinary meaning does not remedy the mischief the legislature sought to remedy. The ordinary meaning renders the subsection ineffectual.
[Emphasis by underlining added]
As counsel for the respondent has pointed out, the appellant in Idai v Malagorski had previously been convicted of contravening a DVO on more than one occasion and was, at the time of sentencing, serving another sentence. Accordingly, Barr J was not considering the present issue – namely whether subs 121(7) requires accumulation of sentences imposed in a single sentencing exercise if the accused has not been sentenced for another offence on an earlier occasion and is not currently serving another sentence.
In Watson v Chambers, it was argued that the provisions of subs 121(7) only apply to require accumulation of sentences imposed under subs 121(2) of the DFV Act – that is, to persons who have previously been found guilty of a relevant domestic violence order offence. In Watson v Chambers, as in the present case, the appellant was being dealt with for both offences in the one sentencing proceedings, and argued that in such a case it could not be said that the accused had been sentenced to serve a term of imprisonment for another offence because the term “has been sentenced” cannot refer to two sentences passed on the same day.
Justice Blokland rejected that submission, saying:
… Section 121(7) is not confined to the accumulation of mandatory sentences imposed under s 121(2). If it were so confined the appellant would be correct. Section 121(7) applies whenever a term of imprisonment is imposed for a relevant breach of a domestic violence order and the person is either serving a term of imprisonment for another offence or has been sentenced to serve a term for another offence. …… The clear intention in my view is that whenever a term of imprisonment is ordered for a relevant domestic violence offence, (although dispositions other than imprisonment are available [sections 121(1) and (3)]), whether or not it is a “mandatory term”, it must be served cumulatively on any other sentence. I agree with the approach taken by His Honour Barr J in Idai v Malogorski [[2011] NTSC 102].[8]
Her Honour concluded that it was correct to say the appellant “has been sentenced to serve a term of imprisonment for another offence” notwithstanding that the sentence was imposed on the same day as the sentence for the DVO offence. Watson v Chambers is an authority directly on point contrary to the construction of subss 121(6) and (7) now advanced by the respondent. However, as counsel for the respondent has submitted, the arguments now put by the respondent were not advanced in Watson v Chambers.
In Lorenzetti v Brennan, the appellant had pleaded guilty to one count of aggravated assault, five counts of contravening a DVO and one count of attempting to contravene a DVO, and was appealing against the severity of the resulting sentence. The Full Court said:[9]
It was not open to the sentencing judge to make any part of any of the sentences concurrent. Section 121(7) of the Domestic and Family Violence Act 2007 (NT) provides:
Despite section 50 of the Sentencing Act 1995, the court must not direct the term of imprisonment to be served concurrently with the other term of imprisonment mentioned in subsection (6)(a) or (b) (ie a sentence of imprisonment for any other offence).
Further, at [29], the Court said:
Sub-section 121(7) requires the sentences for each of the five counts of contravening a DVO to be served cumulatively upon each other and upon the sentence for the aggravated assault and the sentencing judge, accordingly, made all of the sentences cumulative.
The question before the Full Court in Lorenzetti v Brennan regarding subs 121(7) was as follows.
QUESTION 1: When the Court is applying s 121(7) of the Domestic and Family Violence Act in sentencing an offender for a breach of a DVO and another offence or offences, is the court obliged to give effect to the totality principle by lowering the individual sentences below what would otherwise be appropriate?
The answer to that question was as follows:[10]
ANSWER
(a) Section 121(7) of the Domestic and Family Violence Act does not entirely abrogate the principle of totality.
(b) Section 121(7) does prevent the principle of totality from being applied by means of making the sentences for breaches of DVOs concurrent or partially concurrent with other sentences.
(c) However, in cases where there are other charges not subject to the restriction in s 121(7), for example, more than one assault charge, the sentencing court should, where it is appropriate, give effect to the totality principle by ordering concurrency or partial concurrency of those other sentences.
(d) A sentencing court should also give effect to the principle of totality, where it is appropriate, by reducing the sentences to the lower end of the appropriate range of sentences for the particular offences.
(e) It is not permissible for a sentencing court to lower the sentences below what would be appropriate sentences for the objective seriousness of the particular offending. To do so would be to adopt artificial measures for the purpose of subverting the intention of the legislature expressed in s 121(7).
[Emphasis by italicisation added]
The Court in Lorenzetti v Brennan was not concerned with the question now before this Court and the argument now advanced by the respondent was not before the Full Court. The Full Court simply assumed that the effect of subs 121(7) was that it was not open to the sentencing judge to order concurrency of sentences for DVO breaches imposed during a single sentencing exercise such as the one at issue on the appeal in that case. That assumption is reflected in paragraph (b) of the answer to Question 1. If the respondent is correct, then that part of the answer should have been limited to circumstances which fall within subs 121(6). Given the facts in Lorenzetti v Brennan, which involved the appellant being sentenced for a number of DVO offences on the same occasion, if the respondent is correct then paragraph (b) of the answer to question 1 is wrong (or at least incomplete).
Respondent’s submissions on the construction question
The respondent relies on the different tenses used in subs 121(6):
(6) Subsection (7) applies if, when the person is sentenced under this section to serve a term of imprisonment for the offence, the person:
(a)is serving a term of imprisonment for another offence; or
(b)has been sentenced to serve a term of imprisonment for another offence
The respondent contends that the different tenses used indicate that the legislature did not intend subs 121(7) to apply to sentences being imposed on the same occasion. The respondent contends that component sentences are not imposed in the order in which they are announced during that sentencing exercise. That is because a sentence has been imposed when it is perfected, and the court becomes functus officio. Hence, the component sentences the subject of this appeal, which were all imposed as part of the same sentencing exercise, were imposed simultaneously at the conclusion of that sentencing proceeding. On that argument, none of the sentences had been imposed as at the time any of the other sentences were imposed; the criteria for subs 121(6) have not been met; and therefore subs 121(7) is not engaged.
The respondent’s contentions cannot be accepted. The two paragraphs of subs 121(6) must refer to different circumstances. If an accused person was sentenced to imprisonment for “another offence” on an earlier occasion (and the sentence has not yet expired), he or she will ipso facto be serving that sentence when the time comes to consider the application of subs 121(7).[11] The natural meaning of subs 121(6)(b) then, is to refer to sentences imposed during the same sentencing proceedings. There is little or no other scope for its application.
The respondent concedes that, by implication, given the existence of subs 121(6)(a), subs 121(6)(b) must refer to a sentence that is yet to be served.[12] However, the respondent contends that his interpretation still gives subs (6)(b) work to do as it will operate on perfected sentences which are yet to be served; for example, perfected sentences which are cumulative on another sentence which is being served. The respondent identified three situations in which it could be said that a sentence has been perfected but the defendant is not (or not yet) serving it. The first was the case of consecutive sentences mentioned above. The second was the case of suspended sentences (although even if the sentence has been suspended the offender is arguably still “serving” the sentence until it expires).[13] The third was when a person is on appeal bail. A fourth example might be a prisoner on parole. However, as counsel for the appellant pointed out in oral submissions, these are “niche” situations which the legislature could not have intended to treat as the only circumstances in which sentences could not be made concurrent with a sentence for breach of a DVO. There is no discernible legislative purpose for a construction which singled out these three or four types of sentence for special treatment.
Further, the example given later in the respondent’s written submissions[14] is of two sentences ordered to be served wholly cumulatively (whether or not as part of the same sentencing exercise). On the respondent’s argument, prior to the expiry of the first sentence to be served and the commencement of the second sentence to be served the offender “is serving a term of imprisonment” within the meaning of subs 121(6)(a), and has also “been sentenced to serve a term of imprisonment” within the meaning of subs 121(6)(b). Accordingly, any sentence subsequently imposed for the contravention of a DVO during that period cannot be directed to be served concurrently with either of the sentences previously imposed. The respondent says that this example demonstrates that subs 121(6)(b) still has work to do on his construction that all sentences imposed in the one sentencing proceedings are imposed together.
That submission should not be accepted. Once sentences have been imposed with an order for accumulation (whether or not as part of the same sentencing exercise), the better view is that they form part of a single sentence to be served. That treatment is reflected in provisions such as s 53(4) of the Sentencing Act, which requires the fixing of a single non-parole period when sentencing for multiple offences; and s 57 of the Sentencing Act, which provides that when an offender has been sentenced to be imprisoned for an offence and a non-parole period has been fixed, and before the end of the non-parole period the offender is sentenced to a further term of imprisonment, the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete. Accordingly, in the respondent’s example the offender would be “serving a term of imprisonment for another offence” within the meaning of subs 121(6)(a) throughout the term of the sentences ordered to be served cumulatively.
The contention that all sentences imposed in a single sentencing proceedings are imposed simultaneously is also inconsistent with general sentencing principles and provisions. There is no material point of distinction between the formulation in subs 121(6)(b) of the DFV Act and the formulations in ss 50 and 51 of the Sentencing Act. Section 50 of the Sentencing Act is in the following terms:
Imprisonment to be served concurrently unless otherwise ordered
Unless otherwise provided by this Act or the court imposing imprisonment otherwise orders, where an offender is:
(a) serving, or has been sentenced to serve, a term of imprisonment for an offence; and
(b) sentenced to serve another term of imprisonment for another offence;
the term of imprisonment for the other offence is to be served concurrently with the first offence.
That provision sets concurrency as the default position in relation to the service of different sentences to imprisonment. In making that provision, the reference to circumstances in which an offender “has been sentenced to serve” a term of imprisonment clearly encompasses a sentence imposed in the same sentencing exercise in which the offender is “sentenced to serve another term of imprisonment for another offence”. Orders for concurrency between sentences are routinely made in those circumstances. Section 51 of the Sentencing Act adopts the same formulation in relation to cumulative orders of imprisonment. It provides:
Cumulative orders of imprisonment
(1) If an offender is:
(a) serving, or has been sentenced to serve, a term of imprisonment for an offence; and
(b)sentenced to serve another term of imprisonment for another offence;
the term of imprisonment for the other offence may be directed to start from the end of the term of imprisonment for the first offence or an earlier date.
(2) Subsection (1) applies whether the term of imprisonment for the first offence is being served concurrently with or cumulatively on the term of imprisonment for another offence.
It has also always been accepted that the power to order accumulation in s 51 has application to sentences passed in the course of the same sentencing exercise. In our view, there is no material distinction between the formulations "is sentenced" and "has been sentenced" for these purposes. When a sentencing judge is determining whether to make a sentence cumulative on or concurrent with a sentence for a first offence imposed during the same sentencing exercise, the judge does so on the basis that the accused has already been sentenced on the first offence.
To take another example, the autrefois convict and acquit rules in s 18 of the Criminal Code (NT) apply where the person "has already been found guilty or acquitted of" the same offence or a similar offence. It has also always been accepted, at least implicitly, that the rule has application in relation to acquittals or convictions occurring on the same day.[15] The arguments before the Court of Criminal Appeal in matters in which s 18 has been considered have commonly been in relation to, for example, convictions for assault and contravention of a DVO entered on the same day, or convictions for driving unregistered and driving uninsured entered on the same day, or some similar configuration.[16] Again, in considering whether the section applies, both the parties and the Court of Criminal Appeal have proceeded on the basis that the accused has already been found guilty or acquitted of the first offence. That seems to us to be the only sensible construction of these provisions, and the same logic applies to the construction of subs 121(6)(b) of the DFV Act.
In Watson v Chambers, Blokland J placed emphasis on the first underlined portion of the Second Reading Speech in determining the objective legislative intention and the proper interpretation of the provision:
The aim of section 121 is to ensure that any sentence for a contravention of a DVO is served in addition to other terms of imprisonment. However, s 121 as currently drafted is open to an interpretation that the sentence for contravention of a DVO can be served concurrently with another sentence. The bill amends section 121 in order to ensure that persons who are found guilty of contravening a DVO and who are sentenced to a term of imprisonment, will serve that term of imprisonment. The amendment ensures that if a person is already serving a term of imprisonment, any sentence they receive for contravening a DVO will need to be served and cannot be served concurrently - they will be locked up for longer as a result of their contravention"
The respondent in this case places emphasis on the double underlined words. The respondent also relies on the following extract from the Second Reading speech:
Sentencing for breach of a DVO: the bill also amends section 121 of the act to clarify the provisions concerned with sentencing persons who have breached a DVO. Under section 121 of the act, an adult who is found guilty of contravening a DVO is liable to a penalty of 400 penalty units ($53 200) or imprisonment for two years. Under section 121(2) of the act, if a person has previously been found guilty of contravening a DVO, they must be sentenced to serve at least seven days imprisonment. If a person found guilty of contravening a DVO is sentenced to a term of imprisonment, section 121 provides that if they are already serving another term of imprisonment for another offence, the court must direct the term of imprisonment to start from the end of the other term of imprisonment. These provisions are specifically stated to apply despite the Sentencing Act.
In our view, these remarks in the Second Reading Speech do not assist the respondent. It is not suggested that the amendments to the DFV Act were only to clarify the existing provision (which was limited to the case where the person being sentenced was “already serving another term of imprisonment for another offence”). Subsection 121(6)(b) was clearly intended to expand the operation of the mandatory accumulation in subs 121(7). The question is whether it should be construed as impliedly limited to cases where an accused was sentenced on a previous occasion but that sentence has not yet commenced to run. We see no reason why it should be so limited. We consider the reasoning in Watson v Chambers to be correct.
The respondent also relied on the principle of legality, which requires that before legislation may be interpreted as overthrowing fundamental principles, infringing rights or departing from the general system of laws, the legislation must use express words or the alteration must arise by necessary implication.[17] The fundamental right said to be infringed by the operation of subss 121(6) and (7), if construed in the manner contended for by the appellant, is the right to be sentenced in accordance with fundamental legal principles set out in s 5 of the Sentencing Act.
It seems to us that in enacting subss 121(6) and (7), the legislature has used express words to provide that sentences imposed for the contravention of DVOs must be served cumulatively upon any other sentence imposed, the purpose being, like the purpose behind subs 121(5), to ensure that offenders actually serve sentences imposed for breaching DVOs. In the words of the Second Reading Speech cited in Watson v Chambers:
The aim of section 121 is to ensure that any sentence for a contravention of a DVO is served in addition to other terms of imprisonment. … The bill amends section 121 in order to ensure that persons who are found guilty of contravening a DVO and who are sentenced to a term of imprisonment, will serve that term of imprisonment. … [A]ny sentence they receive for contravening a DVO will need to be served and cannot be served concurrently – they will be locked up for longer as a result of their contravention.”
There would appear to be no rational policy reason why, given that specific objective, the legislature should choose to distinguish between sentences imposed on different occasions and sentences imposed on the same occasion. In fact, the policy considerations behind the legislation would appear to apply more cogently to sentences imposed on the same occasion given that an offender will often be sentenced for both a breach of a DVO and the assault giving rise to that breach on the same occasion. The policy of ensuring that sentences for breaching DVOs should be served in addition to other sentences imposed would appear to be more appropriately directed to that situation than to sentences for perhaps unrelated offending.
As the High Court said in Lee v New South Wales Crime Commission,[18] the principle relied upon by the respondent ought not, be extended beyond its rationale:
it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. [emphasis added]
Conclusion
For these reasons, we accept the appellant's submission relying on Watson v Chambers, and as confirmed correct in Lorenzetti v Brennan (and followed in subsequent cases in the Local Court), that if multiple sentences of imprisonment are imposed in a single sentencing exercise the defendant "has been sentenced to serve a term of imprisonment for another offence" within the meaning of subs 121(6)(b) of the DFV Act. In those circumstances, subs 121(7) of the DFV Act mandates that all of the sentences for DVO offences be served cumulatively upon each other and any other sentence imposed.
It follows from this conclusion that the sentence imposed by the sentencing judge was not in accordance with law and should, in the ordinary course, be set aside. However, we have determined not to do so in the exercise of the residual discretion. The relevant considerations in Crown appeals will include such matters as the effect of any further resentencing on progress towards the respondent’s rehabilitation, delay and the totality principle. In this case, even if we were to allow the appeal and resentence the respondent, totality considerations would require the adoption of the approach referred to in Lorenzetti v Brennan [2021] NTSCFC 3 at [22]. That is, the sentences would be imposed at the lower end of the range, and the respondent would be given a week to serve on each of the DVO offences in cumulation. That would result in the same one month period of imprisonment imposed at first instance.
This is not a case in which the consequences of the error by the sentencing court were so serious that the public conscience requires a reversal of those consequences. In addition, these reasons are sufficient to lay down principles for the governance and guidance of lower courts on the issue raised by this appeal in vindication of the legitimate Crown interest.
Accordingly, the appeal is dismissed.
_____________________________
[1] R v Thompson [2022] NTSC 637. The sentencing judge did correct the orders he made under the slip rule. At the time of the original sentencing his Honour had indicated that he believed an appropriate sentence for each of the DVO offences would be imprisonment for three weeks, yet imposed a sentence of one month for the first such offence. His Honour amended the sentence to three weeks imprisonment for each DVO offence but made the second such offence cumulative on the sentence for the first DVO offence as to one week, producing the same end result – a total effective sentence of imprisonment for 19 months. That order is not relevant to the issues on the present appeal.
[2] The reference to “another offence” in subs 121(6) of the DFV Act clearly extends on proper construction to any other discrete offence, including another offence against s 120(1) of the DFV Act. The phrase "another offence" is used in contradistinction to the particular "offence" under s 121 for which the person is sentenced to serve the subject term of imprisonment. That is to say, the reference to "another offence" is a reference to an offence other than the particular offence, regardless whether that other offence is a "DVO contravention offence" or the breach of some different offence provision. That is because the term "offence" in this context describes a particular combination of facts and circumstances that constitute a breach of a statutory provision proscribing conduct. The respondent's argument in the Supreme Court was also inconsistent with the considered dicta in Lorenzetti v Brennan [2021] NTSCFC 3 at [22] (discussed further below).
[3] Idai v Malagorski [2011] NTSC 102; (2011) NTLR 166.
[4] Watson v Chambers [2013] NTSC 7.
[5]Lorenzetti v Brennan [2021] NTSCFC 3.
[6] The alternative argument under consideration was that the sub-section merely prohibited the Court from ordering that sentences be concurrent in the specified circumstances and that if the court refrained from mentioning concurrency or accumulation, s 50 of the Sentencing Act would have the effect that the sentences would be concurrent, not as a result of the court’s order but by operation of the statute.
[7]Idai v Malagorski (2011) NTLR 166 at [32] to [34].
[8] Watson v Chambers [2013] NTSC 7 at [23].
[9]Lorenzetti v Brennan [2021] NTSCFC 3 at [5].
[10]Lorenzetti v Brennan [2021] NTSCFC 3 at [75].
[11]Even if the sentence has been suspended or partly suspended it might be said that the offender is still, in a sense, “serving” the earlier sentence on which time continues to run and which is liable to be restored on breach or re-offending. See also s 40 (4) of the Sentencing Act which provides:
"A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for all enactments except an enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits."
[12] Respondent’s Outline of Submissions, para [20].
[13] See footnote 17.
[14] Respondent’s Outline of Submissions, para [25].
[15] The respondent contended that a different interpretation of the phrase was warranted in these sections because of the different purposes they serve. He also contended that a finding of guilt was a once and for all event “perfected” when the result is pronounced or the jury verdict taken, unlike a sentencing exercise.
[16]See, for example, R v Hofschuster (No 4) (1994) NTLR 179 (whether dangerous act was a similar offence to attempted murder and intending to cause grievous harm); Ashley v Marinov (2007) 20 NTLR 33 (the breach of a restraining order was, on the facts, a similar offence to the assault); Andalong v O’Neill (2017) 328 FLR 340 (driving uninsured and driving unregistered case not similar offences in the relevant sense).
[17]The respondent refers in this respect to Lorenzetti v Brennan at [15]-[20].
[18]Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313] per Gageler and Keane JJ; cited in Lorenzetti v Brennan at [20].
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