The Queen v Simpson

[2020] NTCCA 9

CITATION:The Queen v Simpson [2020] NTCCA 9

PARTIES:THE QUEEN

v

SIMPSON, Tony Allan

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 4 of 2020 (21931617)

DELIVERED:  15 July 2020

HEARING DATES:  4 June 2020

JUDGMENT OF:  Grant CJ, Kelly J and Mildren AJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Manifest inadequacy

Respondent pleaded guilty to one charge of unlawfully causing serious harm – Sentenced to imprisonment for three years to be suspended after nine months – Whether sentence manifestly inadequate – A defining feature of the offence is the harm to the victim – The seriousness of the harm caused must play a significant role in determining the objective seriousness of the offence – Insufficient weight given to the harm suffered by the victim, which included catastrophic injury and permanent disability – Appeal allowed and respondent re-sentenced.

Criminal Code 1983 (NT) s 181, s 188, s 414(1A)
Misuse of Drugs Act 1990 (NT) s 37(2), s 37(3), s 137

DPP v Terrick (2009) 24 VR 457, Emitja v The Queen (2016) 39 NTLR 159, Green v The Queen (2011) 244 CLR 462, Hili v The Queen (2010) 242 CLR 520, R v Bloomfield [1999] NTCCA 137, R v Boyd [1975] VR 168, R v Nadich [2012] NTCCA 4, R v Osenkowski (1982) 30 SASR 212, R v Wilson (2011) 30 NTLR 51, Smiler v The Queen [2018] NTCCA 2, The Queen v Mamarika [2019] NTCCA 24, The Queen v Roe [2017] NTCCA 7, The Queen v Ryan; Miller v The Queen [2019] NTCCA 20, Wong v The Queen; Leung v The Queen (2001) 207 CLR 584, referred to.

REPRESENTATION:

Counsel:

Appellant:M Nathan SC with C Dixon

Respondent:  S Cox QC with N McCarron

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  19

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Simpson [2020] NTCCA 9

No. CA 4 of 2020 (21931617)

BETWEEN:

THE QUEEN

Appellant

AND:

TONY ALLAN SIMPSON

Respondent

CORAM:   GRANT CJ, KELLY J and MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 15 July 2020)

THE COURT:

1. On 26 March 2020 the respondent pleaded guilty to one charge of unlawfully causing serious harm to the victim and one charge of possessing a traffickable quantity of a dangerous drug (MDMA) in a public place. On the serious harm charge, he was sentenced to imprisonment for three years, reduced from four years. For the possession charge, he was sentenced to imprisonment for seven days concurrent with the sentence for serious harm. The sentencing judge ordered that the sentence be suspended on conditions after the offender had served nine months.

2. The Crown has appealed against the sentence on the ground that it is manifestly inadequate.

   The facts of the offending

3. In the early hours of 24 August 2019 the respondent was in Darwin City. He had just secured employment and had gone out to celebrate. He met his co-offender in a bar. They both became very intoxicated and the respondent was also under the influence of drugs. After leaving the licensed premises at which they had been drinking, they saw the victim and his girlfriend having an argument in Shadforth Lane. This argument resulted in the victim either slapping or kicking his girlfriend, causing her to fall to the ground and scream for help.

4. The respondent and co-offender approached the victim and the respondent said, “What are you doing? That’s not on.”

5. The co-offender pushed the victim to the ground. The victim got up and swung a fist at the respondent. The respondent then punched the victim in the face more than once, causing him to fall to the ground again. The respondent and co-offender then kicked and punched the victim to his head and body a number of times. While they were punching and kicking him, the victim became unconscious. The respondent and co-offender stopped and left the area and as they were leaving, one of them yelled out, “Sorry, he deserved it.”

6. When ambulance and police arrived, the victim had no spontaneous breathing, a slowed heart rate and high blood pressure, and was leaking fluid from his brain out through his nose. He was taken to Royal Darwin Hospital where he was recorded as being in a coma and unable to keep his airways open. He was subsequently transferred to the Intensive Care Unit, where he was intubated and on life support for thirteen days.

7. The victim sustained extensive injuries as a consequence of the assault on him. These injuries include a severe traumatic brain injury with diffuse axonal injury (where the connecting fibres in the brain are torn); a stroke; extensive fractures at the base of his skull; numerous intracranial haemorrhages; multiple parenchymal contusions (bruises on the brain); and torn ligaments between the skull and the uppermost bones of his neck. He was required to undergo surgery to create a hole in his skull to drain the bleeding around his brain, and have an intracranial pressure monitor inserted into his brain to manage his medication. He was required to wear a cervical collar for four weeks. He also suffered secondary infections from having a breathing tube and bladder catheter administered.

8. Whilst in hospital he required close monitoring and control of his electrolytes, fluid status, oxygen and breathing. He was given anti-seizure medicine and sedatives to manage agitation and delirium. He was also given antibiotics for secondary infections.

9. As a consequence, he has suffered permanent disabilities: impaired memory function; loss of all hearing in his left ear and tinnitus; problems with his balance; loss of fine motor skills in his left hand; altered sense of taste; and visual field loss in his right eye, resulting in his constantly bumping into things on his right side.

10. He remained in hospital for over eight weeks, and after leaving hospital it was necessary for him to undertake physiotherapy to re-learn, among other things, how to eat and walk.

11. The victim has also experienced severe financial difficulties. He was unable to work for ten weeks, during which he did not receive an income. He has had substantial out of pocket expenses following the assault which resulted in him falling behind on his financial responsibilities. Additionally, as a result of the loss of his peripheral vision, he is unable to return to his former career as he is no longer permitted to drive. He was on a high income prior to the assault, and is now receiving work insurance at a rate far less than his previous income.

12. He has also experienced severe emotional consequences. Since the attack he has had severe anxiety and depression. He has also suffered changes to his personality, and a significant loss of confidence and mood swings which have affected his relationships with his partner and friends. He has been unable to participate in recreational activities he engaged in prior to the assault such as motor bike riding and shooting.

    The respondent’s subjective circumstances

13. At the time of the offending, the respondent was aged 22. He is now 23 years of age.

14. He is the youngest of six siblings. While growing up he witnessed his uncle commit violence against women, including incidents of physical abuse against his mother. This, he said, caused him to develop a marked intolerance for domestic violence.

15. The respondent completed schooling to year 11 in New South Wales, but due to spending time in juvenile detention, never completed year 12. Upon moving to Darwin he gained employment with Shaw’s Transport and worked there for one day before his arrest.

16. The respondent had numerous prior convictions, including a conviction for assault occasioning actual bodily harm in New South Wales.

17. The respondent was arrested on 24 August 2019, and was granted bail on 26 August 2019. He was subject to bail conditions which included supervision by Community Corrections, a no alcohol condition, and a no dangerous drugs condition. He was not subject to a curfew, electronic monitoring or residential rehabilitation requirements. Community Corrections reports available to the sentencing judge provided that during the period of bail the respondent was compliant and courteous with Community Corrections staff, complied with all random drug and alcohol tests he was required to undertake and always produced negative results. He also attended six anger management counselling sessions at Catholic Care.

18. The respondent entered a plea of guilty at an early opportunity in the proceedings. He co-operated with police and made some admissions. However, the sentencing judge found that at times he minimised his actions and involvement in the offending.

    Objective seriousness of the offending

19. The offending is objectively serious. The respondent’s assault on the victim was vicious. He delivered multiple punches and kicks to a vulnerable part of the victim’s body, his head, while he was on the ground, vulnerable and unable to defend himself. The respondent’s level of aggression was totally disproportionate to any threat he may have perceived from the victim. The assault took place in a public place and in company. The respondent and co-offender outnumbered the victim two to one. The victim suffered catastrophic injuries including severe traumatic brain injury, extensive fractures to the base of the skull and neck bones, and lung inflammation from aspiration of fluid. He would have died without medical treatment and has been left with significant permanent disabilities. The victim has also suffered significant financial and emotional hardship.

20. The respondent’s actions also caused significant cost to the community, in terms of the medical care that had to be given to the victim at the community’s expense, and the cost of the police investigation and court proceedings.

21. The objective seriousness of the offending is qualified by the following matters. The offender’s moral culpability is moderated to a small degree as a result of his youth. The assault on the victim occurred on the spur of the moment: it was not planned. Importantly, the respondent initially went to the defence of a woman who was being assaulted and who was calling for help. His initial response was a reasonable one: he said, “What are you doing? That’s not on.” It was the co-offender who initiated the violence by pushing the victim to the ground and the respondent did not engage in violence himself until after the victim had taken a swing at him.

    The appellant’s submissions

22. Counsel for the appellant, in recognition that this is a Crown appeal against sentence, submitted that the head sentence and the period to be served are so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle, citing King CJ in R vOsenkowski[1] and R v Nadich.[2] Reference was also made to the principles summarised at length in The Queen v Roe.[3] Of particular importance in a case such as the present, where no particular error by the sentencing judge is relied upon, is the principle expressed by the High Court in Hili v The Queen[4] where it was said:

    [A]ppellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say (72) in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of the reasons”. […] But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

23. As this Court said in The Queen v Roe:[5]

    Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders.  The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.

24. The appellant in this case identified the points of principle as the maintenance of sentencing standards in serious offences of violence and to establish the weight to be given to the seriousness of the victim’s injuries (that being a defining feature of the offence of unlawfully causing serious harm) in determining the objective seriousness of an offence.

25. The injuries inflicted on the victim in this matter were extremely grave and have resulted in lasting disabilities. The sentencing judge characterised the offending as towards the middle of the range for this kind of offence. Counsel for the appellant contended that it fell squarely in the upper range of seriousness. In addition to the gravity of the injuries inflicted on the victim, the appellant pointed to the fact that the respondent in this case was acting in company with a co-offender; that the attack involved repeated punches and kicks to the victim’s head and body while the victim was lying on the ground and unable to effectively defend himself; and that the respondent showed no concern for the victim because he did not assist him in any way by, for example, calling for an ambulance, but instead fled the scene.

26. The appellant submitted that the major distinguishing factor that increases the seriousness of an offence to bring it within s 181 of the Criminal Code 1983 (NT) (unlawfully causing serious harm carrying a maximum penalty of 14 years imprisonment), rather than s 188 (assault carrying, when aggravated, a maximum of 5 years), is the consequence to the victim; that is to say the injuries suffered and the harm caused.[6] Thus the consequence to the victim is a very important consideration when making an assessment of the objective seriousness of the offending.

27. The appellant’s submission was that in the circumstances of this case, the sentence imposed as both the head sentence and the period to be served were manifestly inadequate to such a degree as to bespeak error. The appellant referred to the review of penalties for this offence made by this Court in Emitja v The Queen[7] and to the observation that sentences of six years have been imposed for offences within the midrange of seriousness where the matter has proceeded by way of a plea, where the perpetrators have passed the age at which they might have been entitled to the leniency of youth, and in circumstances where there has been a cruel and pitiless attack usually involving a weapon. Reference was also made to similar observations in The Queen v Mamarika.[8]

    The respondent’s submissions

28. Counsel for the respondent submitted that there was no error by the sentencing judge, who took into account all of the relevant factors. It was submitted that his Honour’s characterization of the offence as falling towards the middle range of seriousness was not challenged by the Crown. It was also contended that the learned sentencing judge was correct to assess the respondent’s culpability with particular regard to the facts that he had initially responded to a cry for help and he did not deliver the first blow. Reference was made to the detailed findings of his Honour and in particular to his Honour’s assessment of the respondent’s prospects of rehabilitation.

29. It was contended that having regard to those matters no point of principle arises and there was no substantial wrong in the sentence imposed. Reference was made by way of comparison to this Court’s decision in Smiler v TheQueen[9], but that case is of little assistance given its very different facts and circumstances.

    Consideration

30. The sentencing judge must, of course, assess all of the factors of the offence and of the offending conduct to come to a conclusion about the seriousness of an offence. However we accept the appellant’s contention that where (as in this case) a defining feature of the offence is the harm to the victim, the seriousness of the harm caused must play a significant role in determining the objective seriousness of the offence. In the decision of this Court in R v Bloomfield, Martin (BF) CJ noted that the sentencing judge had quoted the following passage:[10]

    [G]enerally when one inflicts serious violence to the head of another, the risk of catastrophic results must be shared by the offender as well as the victim.  Often offenders will find that the punishment may depend on the extent of the damage that the victim has sustained.

31. His Honour went on to say:[11]

    The greater the harm, the greater its weight in the balance of conflicting interests against the offender by way of punishment as a general deterrent.  It must be made clear, both to the offender and others with similar impulses, that if they yield to them they will meet with severe punishment: “in all civilised countries, all in all ages, that has been the main purpose of punishment and continues to be so” (R v Willscroft (1975) VR 292 at 298- 9).

32. The fault element of the offence is that the accused either intended to cause serious harm to the victim or foresaw the causing of serious harm to the victim as a possible consequence of his or her conduct. Even where the accused did not intend to cause the injuries that were actually caused, the fact that the offender does not “foresee the precise nature, or extent, of the injuries actually inflicted will not ordinarily reduce the offender’s culpability”.[12] The extent of the injury suffered by the victim is a circumstance which is highly relevant to the assessment of the seriousness of the offending of this type, however those consequences cannot be allowed to displace all other considerations.[13]

33. There is some force in the appellant’s contention that the seriousness of the injuries suffered by the victim takes this case above the middle of the range of seriousness. However, taking into account the particular circumstances of this offending which have been set out above, it should appropriately be seen as in the middle range of seriousness for such offences. As this Court stated in The Queen v Ryan; Miller v The Queen:[14]

    The sentencing range for the offence of unlawfully causing serious harm is very broad. This is because the circumstances of the offender and the offending vary widely between cases. That variance is seen in matters such as the facts of the offending in question, whether a weapon was used, whether the offending took place in company, the nature and duration of the assault, the nature and timing of the guilty plea and what it indicated, the age of the offender, the extent to which the offender assisted law enforcement authorities, the nature and extent of the prior criminal history, the seriousness of the resulting injuries and the impact of the offending on the victim.

34. Nevertheless, some guidance can be obtained from previous decisions, particularly Court of Criminal Appeal decisions.[15] During the hearing of this appeal the Court was referred to three cases of unlawfully causing serious harm in which the victims suffered traumatic brain injury inflicted in assaults by young men.[16] In two of those, like the present case, the victims were left with permanent disabilities. In each of those cases, the court adopted a starting point of around seven years.[17] In R v Mamarika[18] the Court indicated that a starting point of somewhere between five and six years was ordinarily indicated in a case of unlawfully causing serious harm in the mid-range of seriousness. That case involved the use of an inherently dangerous weapon (a machete) but far less catastrophic injuries and no permanent disabilities.

1. It is true that appellate intervention is not justified simply because the sentence passed by the court below is markedly different from sentences that have been passed on other cases. It is only warranted where the difference is such that in all the circumstances, the appeal court concludes that there must have been some misapplication of principle, even though that is not apparent from the statement of reasons.[19]

2. In this case, given the objective seriousness of the offence and the maximum penalty of 14 years’ imprisonment, the starting point of four years’ imprisonment adopted by the sentencing judge was disproportionate to the objective circumstances of the offending and both the head sentence and the time to serve are manifestly inadequate.

3. Whilst the appellant’s moral culpability is lessened to some degree by his age and the circumstance that he became involved in order to protect a woman who was calling out for help, the savagery of the attack went a long way beyond what was called for by that circumstance, and there were aggravating features such as the fact that the assault took place in company and that the respondent was at the time serving a Community Service Order under supervision.

4. Having regard to the objective seriousness of the offending, as well as mitigating circumstances, in this case a starting point of six years was indicated. We note that no submission was made by the appellant that the head sentence, after the appropriate discount for the plea, should exceed five years. Although there must be some question as to whether the respondent is truly remorseful, we would not interfere with the 25 percent reduction allowed by the sentencing judge. The application of that discount would reduce the sentence to imprisonment for four years and six months and leave it open for the Court on re-sentence to suspend part of the sentence rather than fix a non-parole period. The respondent’s relative youth, and the consequent need to pay particular regard to the purpose of rehabilitation in the sentencing exercise, would warrant an order suspending sentence after the respondent has served the minimum time necessary.

   The residual discretion

5. Notwithstanding that the Court must not now take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence[20], this Court retains a residual discretion to dismiss a Crown appeal against sentence notwithstanding that it has found the existence of an error of principle in the sentencing exercise.[21] In Green v The Queen[22] the plurality of the High Court stated:

   A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.

6. This Court will not intervene where no point of principle arises, and will be slow to intervene where there is a countervailing factor which may warrant the exercise of the residual discretion.[23] A point of principle does arise in this case; namely the need to maintain sentencing standards in objectively serious cases of unlawfully causing serious harm and to emphasise the importance to be attached to the level of harm suffered by the victim in determining the seriousness of the offence. As we have described, in this case the victim suffered catastrophic injuries with permanent consequences.

7. Counsel for the respondent submitted that the appellant had not discharged the burden of proving that the discretion should not be exercised. Even if it is accepted that the Crown bears any such burden beyond establishing error and a relevant point of principle requiring correction, which would seem doubtful, this appeal does not give rise to any unfairness in the relevant sense. The appeal has been brought and determined promptly[24]; it is not a case where the respondent has been released into the community and taken positive steps towards rehabilitation in the meantime; no issues of parity or totality arise, and the respondent’s rehabilitation will not be adversely affected in any real and substantial sense. Nor was the learned sentencing judge misled by any submissions of the Crown at the time of the hearing of the plea which resulted in an inadequate sentence being imposed. In the circumstances, there is nothing to warrant the exercise of the residual discretion so as to leave a manifestly inadequate sentence undisturbed.

   Re-sentencing

8. During the hearing of this appeal we enquired of counsel for the respondent whether there are any matters which have arisen which we should be informed about before re-sentencing the respondent. We were told that there were none, and if that changed we would be so advised. No further information has been forthcoming. Accordingly, we make the following orders in relation to count 1 on the indictment:

   1.The appeal is allowed.

   2.The sentence imposed on the offender on 26 March 2020 for the offence of unlawfully causing serious harm is set aside.

   3.For that offence, the respondent is convicted and sentenced to imprisonment for four years and six months.

   4.That sentence will be suspended after the respondent has served 18 months on the same conditions ordered by the judge at first instance.

   The sentence on count 2 (the drug charge)

9. Although the focus of counsel’s argument was on the sentence for unlawfully causing serious harm (and it is fair to say that was the purpose of the appeal), the Notice of Appeal appealed against the whole of the sentence imposed including the sentence for the drug charge, and sought an order that the Court “quash the sentence” and substitute such a sentence “which in the opinion of the Court is warranted in law” and should have been passed. The sentence of imprisonment for seven days that was imposed on count 2 is not a sentence that was lawful under the Misuse of Drugs Act 1990 (NT). In relation to that count, the sentencing judge said:

   In relation to count 2, the drug count, I do accept that the quantity involved was relatively low; it was just above the minimum traffickable quantity fixed by the Misuse of Drugs Act.  Under the Misuse of Drugs Act, you are to be sent to prison for at least 28 days even for such relatively minor offending, unless, having regard to your particular circumstances or the particular circumstances of the offending, the sentence should be lower.

   Ms Dixon, on behalf of the Crown has not challenged the assertion made by you through your barrister that the drugs were purchased by your co-offender, LP, and that you were holding them for him.  I would regard that as a particular circumstance of your offending…that warrants a sentence of actual imprisonment for that offending lower than the 28 days.

   I do note, however, that you have a criminal history that includes drugs offending.  For that offending, that is on count 2, I will sentence you to 7 days imprisonment.

   (Emphasis by underlining added)

10. Those remarks misstate the effect of the relevant provision of the Misuse of Drugs Act. Section 37(2) provides that when sentencing for a relevant offence[25], the court shall “impose a sentence requiring the person to serve a term of actual imprisonment unless, having regard to the particular circumstances of the offence or the offender … it is of the opinion that such a penalty [ie a sentence of actual imprisonment] should not be imposed.” If the Court does impose a sentence of actual imprisonment, s 37(3) requires the sentence to be not less than 28 days.

11. The question is how the sentence should be corrected. On the face of the sentencing remarks, the sentencing judge did not make a finding that having regard to the particular circumstances of the offence, a sentence of actual imprisonment should not be imposed. Rather, his Honour appears to have made a specific finding that the particular circumstance of the offending “warrants a sentence of actual imprisonment” – albeit one that was less than 28 days.

12. This Court is not minded to interfere with the sentencing judge’s direction that any sentence for count 2 be served concurrently with the sentence for count 1. We will hear submissions from the parties as to how the Court should correct the sentence imposed in relation to count 2.

__________________________________

[1]    R vOsenkowski (1982) 30 SASR 212 at 213.

[2]R v Nadich [2012] NTCCA 4 at [28] per Southwood J.

[3]The Queen v Roe [2017] NTCCA 7 at [10]-[20] per Grant CJ and Southwood J.

[4]    Hili v The Queen (2010) 242 CLR 520 at [59]-[60].

[5]    The Queen v Roe [2017] NTCCA 7 at [11] per Grant CJ and Southwood J.

[6]    The other distinguishing characteristic is intent. To be guilty of aggravated assault, the offender need only intend the conduct the subject of the charge. To be guilty of unlawfully causing serious harm, the offender must intend to do so or be reckless as to the result.

[7]Emitja v The Queen (2016) 39 NTLR 159 at [46]-[47].

[8]The Queen v Mamarika [2019] NTCCA 24.

[9]    Smiler v TheQueen [2018] NTCCA 2.

[10]     R v Bloomfield [1999] NTCCA 137 at [15]. The passage quoted was from the decision of the Queensland Court of Criminal Appeal in Amituanai (1995) 78 A Crim R at 588.

[11]R v Bloomfield [1999] NTCCA 137 at [19].

[12]     DPP v Terrick (2009) 24 VR 457 at [41].

[13]     R v Boyd [1975] VR 168 at 172.

[14]The Queen v Ryan; Miller v The Queen [2019] NTCCA 20 at [54].

[15]     Emitja v The Queen (2016) 39 NTLR 159 at [44].

[16]     These were R v Hughes (SCC 20422936, 14 April 2005) (age of offender 17); R v Weston (SCC 21334655 and 21424124, 14 January 2015) (age of offender 21); and R v Namaibai (SCC 21739042, 9 January 2018) (age of offender 23).

[17]In both Weston and Namaibai the sentencing judge specified a starting point of seven years. In Hughes, the sentence was five years and six months (with a non-parole period of three years) after allowance for the plea of guilty. The discount was not specified. Assuming a reduction of 25% was applied, the starting point was seven years and four months. If the reduction was 20% the starting point would have been six years and 11 months.

[18]The Queen v Mamarika [2019] NTCCA 24.

[19]     Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [58]; The Queen v Roe [2017] NTCCA 7 at [93].

[20]     Criminal Code 1983 (NT) s 414(1A).

[21]The Queen v Roe [2017] NTCCA 7 at [19]; R v Wilson (2011) 30 NTLR 51 at [27].

[22]     Green v The Queen (2011) 244 CLR 462 at [36].

[23]     The Queen v Roe [2017] NTCCA 7 at [20].

[24]     The respondent was sentenced on 26 March 2020 and the appeal was filed five days later on 31 March 2020.

[25]Offences to which the provision applies are an offence for which the maximum penalty provided by the Act (with or without a fine) is: (a) 7 years imprisonment or more; or (b) less than 7 years imprisonment but the offence is accompanied by an aggravating circumstance. The offence charged in count 2 on the indictment carries a maximum penalty of imprisonment for 14 years.