The King v Thompson - [2023] NTCCA 3

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 DARWIN
The 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The King v Thompson

Details

AGLC: The King v Thompson [2023] NTCCA 3
Case: [2023] NTCCA 3
Decision Date: 23 March 2023

CaseChat Overview and Summary

The appeal concerned the interpretation of subsections 121(6)(b) and (7) of the *Domestic and Family Violence Act 2007* (NT). The appellant, the Crown, argued that the sentencing judge had erred in law by not applying these provisions to require the cumulative service of sentences imposed for breaches of a domestic violence order (DVO) during a single sentencing exercise. The respondent had pleaded guilty to four aggravated assaults and four breaches of a DVO, with the conduct underlying both sets of offences being the same. The sentencing judge imposed concurrent sentences for the aggravated assaults and concurrent sentences for the DVO breaches, but then ordered the cumulative service of the total sentence for the assaults with the total sentence for the DVO breaches, resulting in a total of 19 months imprisonment, which was then suspended.

The central legal issue before the Full Court of the Supreme Court of the Northern Territory was whether subsection 121(6)(b) of the *Domestic and Family Violence Act* required the accumulation of sentences for DVO contraventions only when the offender had already been serving a sentence for another offence at the time of sentencing, or if it also applied when multiple sentences of imprisonment were imposed for different offences during the same sentencing exercise. Specifically, the court had to determine if, in circumstances where multiple sentences of imprisonment are imposed in a single sentencing exercise, the offender is considered to have "been sentenced to serve a term of imprisonment for another offence" within the meaning of subsection 121(6)(b).

The Court reasoned that the principle of statutory interpretation relied upon by the respondent, which suggests that legislation should not be interpreted to inadvertently alter fundamental rights and freedoms, should not be extended to shield offenders from clearly identified legislative objects. Applying this reasoning, the Court held that when multiple sentences of imprisonment are imposed in a single sentencing exercise, the offender is indeed considered to have been sentenced to serve a term of imprisonment for another offence for the purposes of subsection 121(6)(b). Consequently, subsection 121(7) mandates that all sentences for DVO contraventions must be served cumulatively upon each other and any other sentence imposed. The Court found that the sentence imposed by the sentencing judge was not in accordance with the law.

Despite finding that the sentencing judge had erred, the Court dismissed the appeal in the exercise of its residual discretion. The Court considered that resentencing the respondent would not significantly alter the outcome due to totality principles, and that the error was not so serious as to require reversal. The Court also noted that its reasons would provide guidance to lower courts on the correct application of the relevant provisions.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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