The Queen v Thompson - [2022] NTSC 63

CITATION: The Queen v Thompson [2022] NTSC 63

PARTIES: THE QUEEN

v
THOMPSON, Jason

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22123153
DELIVERED:  10 August 2022
HEARING DATE:  11 July 2022
JUDGMENT OF:  Reeves J

REPRESENTATION:
Counsel:
Crown:D Dalrymple
Defendant:L Nguyen
Solicitors:
Crown:Office of the Director of Public Prosecutions
Defendant:Nil
Judgment category classification:      B
Judgment ID Number:  Ree2203
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Thompson [2022] NTSC 63

BETWEEN:
THE QUEEN
Crown

AND:
JASON THOMPSON
Defendant

CORAM: REEVES J

REASONS FOR RULING
(Delivered 10 August 2022)

The application

The Crown has applied to reopen the proceedings in this matter on the ground that the sentence I imposed on the defendant on 19 May 2022 at Alice Springs was “not in accordance with the law”.
The application is made under section 112 of the Sentencing Act (NT). That section relevantly provides that:
(1)Where a court has in, or in connection with, criminal proceedings (including a proceeding on appeal):
(a) imposed a sentence that is not in accordance with the law; or
(b) failed to impose a sentence that the court legally should have imposed;
the court (whether or not differently constituted) may reopen the proceedings unless it considers the matter should more appropriately be dealt with by a proceeding on appeal.
It is common ground that the concluding words of this provision do not apply in the present circumstances because the relevant right of appeal, namely that provided by section 163 of the Local Court (Criminal Proceedings) Act (NT), does not arise. That is so because the sentence I imposed was not a “conviction, order, or adjudication” made by the “Court”, as defined in section 4 of that Act, that is to say “the Local Court”.

The relevant legislative provision

However the parties are in dispute as to whether the sentence concerned was “not in accordance with the law” within the terms of s 112(1) (a) above. The particular “law” in question is section 121 of the Domestic and Family Violence Act 2007 (the DFV Act). It relevantly provides:
(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)    …
(4)    …
(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).

The factual background

To explain how the sentence is alleged to be not in accordance with that law, it is first necessary to provide some factual context to this application. The defendant pleaded guilty to four counts set out in the indictment dated 20 April 2022. Each count involved an aggravated unlawful assault on his then domestic partner, JM. In addition, at about the time of his sentencing, four complaints were transmitted from the Local Court at Alice Springs. Each of those complaints charged that, in committing each of the aforesaid aggravated assaults, he had simultaneously contravened a domestic violence order issued for the protection of JM.
On each of the four indictment counts I imposed a sentence of 18 months imprisonment. On each of the four complaint counts I imposed a sentence of three weeks imprisonment. Having regard to the principles of totality and concurrency I concluded that, in all the circumstances, the just and appropriate total sentence on the four indictment counts was 18 months imprisonment. On the same footing, with respect to the four complaint counts, I concluded that the just and appropriate total sentence was one month imprisonment.
To achieve these outcomes, I ordered that the terms of imprisonment imposed with respect to counts to 2 to 4 of the indictment counts be served concurrently with that imposed for count 1. In addition, I made the following orders with respect to the four complaint counts:
In relation to the first complaint count, I impose a sentence of imprisonment of 1 month. In relation to the second to fourth inclusive complaint counts, I sentence you to a period of imprisonment of 3 weeks on each, and all of those sentences are to be served concurrently with the sentence that I have imposed on the first of the complaint counts.
However, in doing so, I made an error in imposing a term of imprisonment of one month with respect to the first complaint count when the intention I expressed earlier was to impose a sentence of three weeks imprisonment for that count and to impose a total sentence of four weeks imprisonment for all four complaint counts. Accordingly, I propose to correct the orders I made as set out above under the slip rule so that they are expressed as follows:
(a)In relation to the first complaint count, I impose a sentence of three weeks imprisonment.
(b)In relation to the second complaint count, I impose a sentence of three weeks imprisonment, one week of which is to be served cumulatively with the term of imprisonment on the first complaint count above and the balance of two weeks imprisonment is to be served concurrently.
(c)In relation to each of the third and fourth complaint counts, I impose a sentence of three weeks imprisonment, all of which is to be served concurrently with the term of imprisonment on the first complaint count above.
Finally, because of the provisions of section 121 (7) of the DFV Act, I ordered that the cumulative term of imprisonment of 18 months on the four indictment counts be served cumulatively with the one month cumulative term of imprisonment on the four complaint counts. This order is unaffected by the changes I propose to make under the slip rule above.

The contentions

The present application arises from the last order described immediately above. The Crown contends that section 121(7) of the DFV Act “essentially dictates that each discrete sentence of imprisonment for contravening a [Domestic Violence Order] be served cumulatively on whatever sentence preceded it in the course of the ….. sentencing orders”.
Hence it contends that each of the periods of imprisonment on each of the complaint counts should have been ordered to be served cumulatively with each other. It contends that this should have resulted in the imposition of a total term of imprisonment of 12 weeks on the four complaint counts rather than the one month term of imprisonment that I ordered.
In making this contention the Crown relied on the decision of the Northern Territory Full Court in Lorenzetti v Brennan[1]. In that matter the defendant was charged with one count of aggravated assault and five counts of breaching a Domestic Violence Order. The Full Court concluded that the trial judge had applied section 121(7) of the DFV Act correctly in ordering that “….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…”[2]
In opposing this application the defendant contends that the Crown has misconstrued the words of section 121(7) of the DFV Act. Specifically he contends that the expression “the other term of imprisonment” in that subsection is directed to the expression the “term of imprisonment for another offence” in subsections 121(6)(a) and (b). Further, he contends, that the words “for another offence” in those subsections are to be contrasted with the expression “a DVO contravention offence” in subsections 121(2) and (5). On that basis he contends that subsection 121(7) of the DFV Act only applies to require accumulation as between the term of imprisonment imposed for “another offence” and that imposed for “a DVO contravention offence”. It does not apply, so he contends, to require such accumulation between the term of imprisonment imposed for consecutive DVO contravention offences.
As for the judgment in Lorenzetti v Brennan, the defendant contends that the Full Court did not, in that matter, directly address the meaning of the expression “for another offence” in subsections 121(6)(a) and (b) of the DFV Act. Furthermore, the defendant contends that the Court was dealing with a question of accumulation as between the term of imprisonment imposed for one offence of aggravated assault, and that imposed for a series of DVO contravention offences, rather than, as here, between the term of imprisonment imposed for four aggravated assault offences each of which involved a simultaneous breach of a DVO.
Nonetheless the defendant did seek to draw support from the following observations in that judgment about the interaction between section 50 of the Sentencing Act and section 121(7) of the DFV Act when applying the totality principle (at [22]):
“….There is scope for the application of the totality principle by ordering concurrency of other sentences imposed at the same time (eg sentences for assault) and by reducing the sentences imposed for breaches of DVOs and other sentences imposed at the same time to the lower end of the range of appropriate sentences available given the objective seriousness of the breaches….”

Consideration

It is well established by numerous High Court authorities over the past two decades or more that a statutory provision such as ss 121(7) of the DFV Act falls to be construed according to its text or language, its statutory, historical and other relevant context and its general purpose or policy.[3]
It is relatively clear from its introductory words that the general purpose or policy of ss 121(7) of the DFV Act is to counteract the effect of s 50 of the Sentencing Act. That section provides:
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.
It can be seen that this provision therefore adopts a general principle that concurrency applies to the service of all terms of imprisonment imposed under the Sentencing Act.
Thereafter, the remaining words of s 121(7) of the DFV Act identify two different kinds of terms of imprisonment in respect of which that sub-section operates to counteract the concurrency principle in s 50 of the Sentencing Act.
The first is the term of imprisonment which is mentioned first in s 121(7) of the DFV Act and which is also described in the introductory words of s 121(6): “when the person is sentenced under this section to serve a term of imprisonment for the offence” (emphasis added).
The second is the term of imprisonment mentioned second in s 121(7) of the DFV Act and which is also described in the body of ss 121(6)(a) and (b) as “a term of imprisonment for another offence” (emphasis added).
Hence ss 121(6) and (7) of the DFV Act together make a point of distinction between two different kinds of offence in respect of which a term of imprisonment is to be served: “the” offence and “another” offence.
This point of distinction is reinforced by the statutory context to those sub- sections. First, “the” offence to which the penalty provisions of s 121 of the DFV Act are directed is relevantly described in s 120(1) in the following terms:
(1)   A person commits an offence if:
(a)    a DVO is in force against the person; and
(b)    the person engages in conduct that results in a contravention of the DVO.
The uniqueness of that offence is then reinforced by the definition of the expression “DVO contravention offence” in s 4 of the DFV Act which relevantly provides as follows:
DVO contravention offence means:
(a)    an offence against section 120(1); or
(b)    an offence of contravening a restraining order under the repealed Domestic Violence Act 1992 as in force from time to time before the commencement of this Act; or
(c)    an offence of contravening an external order.
Secondly, the term of imprisonment for that offence is variously prescribed by
ss 121(1), (2) and (5) of the DFV Act in the following manner. In the first place, ss 121(1) of the DFV Act sets the general penalty for an adult offender[4] in these terms: “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”.
Next, s 121(2) requires that, if the offender has previously been found guilty of a DVO contravention offence: “the court must record a conviction and sentence the person to imprisonment for at least 7 days”.
Then, s 121(5) effectively requires such an offender “to actually serve the term of imprisonment imposed”.[5]
These contextual features therefore reinforce the distinction that is drawn in
s 121(6) and (7) of the DFV Act between a term of imprisonment that is to be served for “the” offence, namely a DVO contravention offence, and that to be served for “another offence”.
To return to its purpose, it follows that s 121(7) of the DFV Act requires that a term of imprisonment for the former offence, particularly where the offender has previously committed such an offence, must not only be actually served but must be served cumulatively with a term of imprisonment imposed for the latter, namely another offence. It is in this very specific manner that s 121(7) of the DFV Act counteracts the concurrency principle in s 50 of the Sentencing Act.
Conversely, given these peculiar textual, contextual and purposive features, it is difficult to see how the words “another offence” in ss 121(6) and (7) of the DFV Act could be construed to refer to a DVO contravention offence in the event that the sentencing exercise involves multiple DVO contravention offences. Instead the absence of any express provisions to deal with that scenario suggests that the issues of concurrency and accumulation are, in that event, to be addressed when considering the totality principle mentioned in Lorenzetti v Brennan at [22] (see above at [14]).
Having mentioned Lorenzetti v Brennan, I would add for completeness that I agree with the defendant’s contentions that the Full Court in that matter was not required to, and did not consider, the meaning of the expression “another offence” in s 121(7) of the DFV Act. Furthermore, I consider that judgment to be distinguishable on its facts. That is so because it dealt with a situation where a single “another offence” and multiple DVO contravention offences were considered in the one sentencing exercise. That is to be contrasted with the present matter where four other offences and four DVO contravention offences, each committed simultaneously with one of those other offences, were dealt with in the same sentencing exercise.
Since the approach outlined above is essentially the one I adopted in sentencing the defendant on 19 May 2022, albeit uninstructed by this more detailed review of the provisions of s 121(7) of the DFV Act, I do not consider that the sentence I passed was not in accordance with the law. It follows that the Crown’s application to reopen this proceeding must be refused.
Accordingly, I make the following orders. First, with respect to the slip rule matter discussed earlier (see at [7]) I make the following orders:
The orders dated 19 May 2022 are amended to read as follows:
a.      On the first complaint count, the offender is sentenced to three weeks imprisonment.
b.      On the second complaint count, the offender is sentenced to three weeks imprisonment, one week of which is to be served cumulatively with the term of imprisonment on the first complaint count, and the balance of two weeks imprisonment is to be served concurrently.
c.      On each of the third and fourth complaint counts, the offender is sentenced to three weeks imprisonment, all of which is to be served concurrently with the term of imprisonment on the first complaint count above.
Secondly, I order that the Crown’s application to re-open the proceedings be dismissed.
---------------------------

[1][2021] NTSCFC 3.

[2]Ibid at [29].

[3] See, for example, Project Blue SkyInc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [44].

[4]The penalty for a “young person” offender is prescribed by s 122(1) in identical terms.

[5]Sections 121(3) and (4) describe certain presently irrelevant circumstances where s 121(2) does not apply.