Wright v Valladares - [2015] NTSC 59

Wright v Valladares [2015] NTSC 59
PARTIES:WRIGHT, Sammy Robert James
v

VALLADARES, Kylie

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 40 of 2015 (21427125)
DELIVERED:  11 SEPTEMBER 2015
HEARING DATES:  7 SEPTEMBER 2015
JUDGMENT OF:  KELLY J
APPEAL FROM:  D WALLACE RSM
CATCHWORDS:

CRIMINAL LAW – Sentencing – Mandatory sentencing – Exceptional circumstances exception – Sentence that may have been imposed in the absence of the mandatory sentencing regime may have been less than the sentence actually imposed – A difference between the mandatory minimum and the sentence that would otherwise be imposed does not ipso facto amount to exceptional circumstances – Such an approach would render mandatory sentencing provisions illusory – Appeal dismissed
CRIMINAL LAW – Sentencing – Mandatory sentencing – Exceptional circumstances – Relevant test – Magistrate’s finding that an aspect of the case was ‘unusual’ does not necessarily lead to a finding of exceptional circumstances – Magistrate considered all the circumstances of the case and clearly concluded there were no exceptional circumstances – Appeal dismissed
CRIMINAL LAW – Sentencing – Mandatory sentencing – Exceptional circumstances – Magistrate’s discretion – Magistrate may choose weight to be given to the circumstances – Sentence not so unreasonable that no reasonable magistrate could have arrived at it – Sentence not grossly disproportionate – Appeal dismissed
Sentencing Act ss 78CA(3); 78 DD; 78DI(1)
R v Duncan [2015] NTCCA 2, applied
Dhamarrandji v Curtis [2014] NTSC 39; Jambajimba v Dredge (1985) 33 NTR 19; Orsto v Grotherr [2015] NTSC 18; referred to
Ho v Professional Services Review Committee No 295 [2007] FCA 388; Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290; followed
REPRESENTATION:
Counsel:
Appellant:F Bain
Respondent:  D Jones
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  KEL15014
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wright v Valladares [2015] NTSC 59

No. JA 40 of 2015 (21427125)
BETWEEN:

SAMMY ROBERT JAMES WRIGHT

Appellant

AND:

KYLIE VALLADARES

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 11 September 2015)

This is an appeal against the sentence imposed on the appellant in the Darwin Court of Summary Jurisdiction on 1 July 2015.
The appellant pleaded guilty to unlawfully assaulting his estranged partner, aggravated by the fact that the victim suffered harm and that the victim was a female and the appellant is a male, the maximum penalty for which is five years imprisonment, or two years upon being found guilty summarily.
In summary, the facts were these. At the time of the assault, the appellant and the victim were living apart. They had four children together aged 8, 7, 5 and 1. On Wednesday 14 May 2014, the appellant spent the evening with friends at a number of places in Casuarina and Palmerston including Tracy Village. Throughout the evening he sent text messages to the victim. As a result of the text messages, the appellant became angry because he believed the victim had left the children unattended during the evening.
The victim had been out for the evening and returned home at about 12:30am on 15 May. The appellant drove to the victim's house and waited for her. When she returned home, he approached her car as she was getting out and said, through her open window, ‘Who you been fucking tonight?’ Then he reached inside the vehicle and tried to unlock the driver's door. The victim yelled at the appellant to leave and beeped her car horn to try to get help from neighbours.
The appellant tried to get into the victim’s car by climbing in the driver’s side window. The victim tried to move across to the passenger seat because she was scared the appellant was going to assault her again. He grabbed her several times and she received several small scratches to her chin and right shoulder. Then he gave up, stood away from the car and waited for the victim to get out of the car. When she got out of the car, the appellant followed her into the house and asked her about who she was seeing and where she had been. After a while, the appellant left the house and went back to Palmerston.
On Friday 16 May the appellant went to Darwin Magistrates’ Court (for what purpose was not stated in the proceedings before the Court of Summary Jurisdiction) and police arrested him. He took part in an electronically recorded interview with police but did not admit assaulting the victim. During this interview police served the appellant with a confirmed domestic violence order. The appellant was served with a notice to appear in the Darwin Court of Summary Jurisdiction on 4 July 2014, but he did not appear on that date. The matter finally proceeded on 1 July 2015 at which time the appellant pleaded guilty to aggravated assault. Three other charges were withdrawn.
The aggravated assault was a category 3 offence.[1] Therefore, as the appellant had been previously convicted of a violent offence (in 1998), the mandatory sentencing provisions in the Sentencing Act applied and the sentencing magistrate was obliged to impose a minimum sentence of three months actual imprisonment[2] unless satisfied that the circumstances of the case were exceptional.[3]
Counsel for the appellant submitted to the learned magistrate that he should be satisfied that the circumstances were exceptional and that he should exercise his discretion to impose a lesser penalty. Mr Aust, who appeared for the appellant in the Court of Summary Jurisdiction, relied on the following matters as establishing that the circumstances were exceptional.
(a)Although he had been convicted of a number of other offences in recent years, the appellant had only one conviction for a violent offence, 17 years earlier. Although that conviction was a male-on-female assault, it was not a case of domestic violence.
(b)The offending took place over 12 months before and there had been no suggestion of any ongoing violence since then and no further violent offending since that time.
(c)It was a plea at the earliest opportunity. Originally there were a number of charges and the date he entered his plea was the first time he had been able to plead to the single remaining charge.
(d)He went to the victim’s house under the belief that she had left the children there unattended.
(e)He was 38 years old and had been in full-time employment ever since leaving school at the end of year 10.
(f)He shared the responsibility for looking after his and the victim’s children every other weekend and on the school holidays.
(g)The objective seriousness of the offending was at the lower end of the scale, the harm suffered by the victim being “on the most modest level”.
(h)In all of these circumstances, there is a lack of proportionality between the seriousness of the offending and the mandatory minimum sentence of three months actual imprisonment.
(i)He had been dealt with for other (non-violent) offences with terms of imprisonment which had been wholly or significantly suspended and he had complied with the conditions of those sentences.
(j)He and the victim were “well and truly in a very good place at the moment and they’re supportive of one another”.
Mr Aust referred his Honour to R v Duncan[4] and Orsto v Grotherr.[5] He pointed out that Orsto v Grotherr[6] was authority for the proposition that disproportionality (between the seriousness of the offending and the statutory mandatory minimum sentence) is a relevant consideration in considering whether the circumstances of the case are exceptional, and submitted that the exceptional circumstances exception should be given “very wide scope” in accordance with both the second reading speech and the judgment of the Court of Criminal Appeal in R v Duncan.[7] He submitted that in this case the mandatory minimum sentence was disproportionate to the seriousness of the offending and to the sentence that would otherwise be imposed in accordance with normal sentencing principles, and asked the sentencing magistrate to find that there were exceptional circumstances and impose a sentence that was suspended forthwith. (The appellant had already served 22 days on remand.)
The sentencing magistrate adjourned for the express purpose of reading the authorities to which Mr Aust had referred him and then returned to sentence the appellant.
His Honour considered that the circumstances were not exceptional and sentenced the appellant to term of imprisonment for three months, beginning on 9 June 2015 to take into account the time the appellant had spent in custody. In doing so, his Honour said:
The case is not on the face of it the most serious of assaults, far from it. The level of violence is, by the standards of what this court’s used to, relatively low. Even so, any level of violence in the context of a woman who’s returning home and is hoping to get to the safety of her own house is alarming and not the sort of thing that should happen and she would not have known how far things were going to go given that she was apparently being accused of - you were moved not only by concern for the children as far as she could tell but also by jealousy of some sort.
In any event, it is not the worst of assaults but it’s certainly not the most trivial either. Had the same acts occurred in a public place, in a bar or something, in the course of an argument, one could regard it as a relatively trivial assault. Occurring on the threshold of the woman’s house, I cannot really take that view.[8]
…
Mr Aust submits confidently that were it not for that section, the Court would not be thinking about a sentence of 3 months’ actual imprisonment and I think he is right in that for various reasons in relation to your motivation for going to the house in the first instance - or part of the motivation that is - [being] concern for the children; because of the fact that you have only one violent previous conviction and that one is a long time ago; because you have, it seems, responded appropriately to the domestic violence order that arose out of these circumstances I am dealing with, Mr Aust submits - and I think he is right - that the Court would probably not be looking to sentence you for 3 months of actual custody, but find some other sentence depriving you of rather less liberty, perhaps for a longer time under some form of conditional release, suspended sentence or otherwise, with a view to restoring the peace, protecting the victim of this assault and generally dealing with the matter.[9]
….
However, before I am allowed to do that, I have to find exceptional circumstances in the case. I have to say I am afraid, Mr Wright, that as far as the physical facts of the matter are concerned and your motivation even if you were entirely and 100 percent concerned with the welfare of the children, that would not in any render this an unusual case. Time and again this Court hears of parents, nearly always men, who are moved by concern for their children to assault the mother of those children and (inaudible) not even - not even slightly unusual for this to be a motivation.
The other circumstances put forward too are hardly rare. They are - it is not by any means usual that someone comes before the Court in peril under this sentencing section with only one previous conviction; that is not the norm, I suppose. And it is not usual, but by no means rare, that the old conviction be as old as this one is, something like 15, 16 years before the date of the current offence. But as I say, none of these is, from my view, an unusual circumstance, far from it, nor in combination can I regard the combination of facts and antecedence as being particularly unusual.[10]
…
… As I say, I cannot find anything that I would regard as exceptional within the meaning of the authorities established by R v Duncan, cited by R v Duncan, which make this an unusual case. That being so, I propose to convict you of this charge, I give you credit for your plea of guilty which was entered six months ago.
It is a shame you failed to show up in court - what was it, in January - February - late January. The matter could have been dealt with earlier. But I do not think it would have made much or any difference had the matter been dealt with then. I find that I cannot in fact give you any result from the credit I give you for the plea of guilty which was entered early. I take into account all the other matters that Mr Aust has mentioned, and as I said, if I were free to do so, I suspect I would be imposing a sentence of less than 3 months’ actual custody but I cannot see that the law permits me to do that. You are to be convicted of this charge, sentenced to 3 months’ imprisonment ...[11]
The appellant has appealed against his sentence on the following grounds.
(1)The sentencing magistrate was wrong in finding that the circumstances of the case were not exceptional for the purposes of s 78DI of the Sentencing Act.
(2)The sentencing magistrate failed to exercise a discretion in determining not to find exceptional circumstances in such a manner that resulted in the imposition of a sentence that was knowingly disproportionate to the offending.
(3)The sentence is manifestly excessive in all the circumstances.
The appellant abandoned ground 3 before the hearing of this appeal.
Grounds 1 and 2 are interrelated. In relation to Ground 2, counsel for the appellant explained that, despite its apparent meaning, what it was intended to convey is not that the magistrate failed to exercise his discretion altogether, but that his Honour erred in principle in exercising that discretion. The appellant contended that the sentencing magistrate found that the mandatory minimum sentence was disproportionate to the seriousness of the offending (in all of the circumstances); that this was relevant to the exercise of determining whether the circumstances of the case were “exceptional”; and yet the magistrate did not take it into account in making that determination. This amounted to a failure to take into account a relevant consideration and was thus an error of law.
In written submissions, the appellant submitted that “the correct approach to s 78DI(1)(b) of the Sentencing Act is that exceptional circumstances are circumstances that satisfy the court, applying ordinary sentencing principles, that it should make an exception to the starting point of a minimum sentence of the relevant specified period of actual imprisonment”. In other words, the judicial officer imposing the sentence should simply work out what sentence should be imposed on the application of ordinary sentencing principles without reference to the mandatory minimum sentences in the legislation, and if the sentence so arrived at is not a period of actual imprisonment equal to or greater than the mandatory minimum, she would, ipso facto, find that the circumstances were exceptional. Stated that way, it is obvious that such an approach would involve simply ignoring the mandatory minimum sentences in the legislation. (If the sentence so arrived at was equal to or above the mandatory minimum, the mandatory minimum would be irrelevant; if the sentence so arrived at was less than the mandatory minimum that would ipso facto amount to exceptional circumstances, and again, the mandatory minimum would not apply.)
Counsel for the appellant relied on the judgment of Blokland J in Dhamarrandji v Curtis[12] and Orsto v Grotherr[13] as authority for this approach to the mandatory sentencing regime. I do not think these cases are authority for the proposition put by counsel for the appellant. In Dhamarrandji v Curtis her Honour said:[14]
Aside from the factors expressly included and excluded, by sub-sections 78DI(3) and (4) respectively, I see no reason to refrain from considering the sentencing factors as set out in s 5 of the Sentencing Act, and relevant common law principles, in determining whether “the circumstances of the case” are, or are not, “exceptional”. A sentencing court is still required, pursuant to the Sentencing Act, to punish offenders “to an extent or in a way that is just in all of the circumstances”. That sentencing purpose reflects the principle of proportionality and may be displaced only to the extent necessary by clear statutory warrant. [citations omitted]
This is a long way from saying that a judge or magistrate sentencing an offender should simply ignore the mandatory sentencing provisions in the legislation. In the very next paragraph in Dhamarrandji her Honour said:
Superimposed on general sentencing law are minimum mandatory terms such as s 78D which must be given their full effect, however, this includes giving full effect to the broadly based “exceptional circumstance” provision. In my opinion there is no warrant to read “exceptional circumstances” narrowly or in a manner that is more restrictive than provided within Part 3, Division 6A, subdivision 2 of the Sentencing Act, s 78DI in particular. The circumstances of the case must amount to an exception, however, the factors relevant to that finding are not significantly confined.[15] [emphasis added]
In Orsto v Grotherr,[16] Blokland J said:
I am not convinced that general principles or purposes of sentencing such as proportionality have no role in the assessment of the ‘exceptional circumstances’ exemption. I see no reason why an exceptional disparity between impugned conduct and the minimum penalty provided would necessarily be excluded from consideration.[17] [emphasis added]
Again, this is not a warrant for ignoring the mandatory minimum sentences in the legislation altogether.
In oral submissions, counsel for the appellant resiled from the extreme form of this submission. The appellant’s final position articulated in oral submissions was this.
(a)Disproportionality between the mandatory minimum and the sentence that would otherwise be imposed on the application of ordinary sentencing principles is a relevant factor to be taken into account in deciding whether there are exceptional circumstances.
(b)A gross disproportionality between the mandatory minimum and the sentence that would otherwise be imposed must ipso facto bring the case within the exceptional circumstances exception.
(c)The sentencing magistrate (having found that the mandatory minimum was disproportionate) did not take that into account in deciding whether there were exceptional circumstances in this case and this amounted to an error of law. (Ground 2 as explained in [13] above.)
(d)Further, in saying, “… none of these is, from my view, an unusual circumstance, far from it, nor in combination can I regard the combination of facts and antecedence as being particularly unusual,” his Honour applied the wrong test. He was only required to find that the case was “unusual” not that it was not “particularly unusual” and he had, earlier in the paragraph in which those words appear found that several aspects of the case were “not usual”.
(e)Further, in this case the mandatory minimum sentence was grossly disproportionate to what would otherwise be an appropriate sentence in the circumstances, and that, together with the other matters relied on as constituting exceptional circumstances, rendered the sentencing magistrate’s determination that the circumstances were not exceptional unreasonable in the sense that no reasonable magistrate, acting on correct principles, could possibly have reached such a determination.
So far as the contention in (b) above is concerned, I do not think it is at all helpful to attempt to lay down hard and fast rules of this nature. The Court of Criminal Appeal authoritatively expounded the relevant principles in R v Duncan.[18] When determining whether the circumstances of the case are exceptional, it is necessary to consider the whole of the circumstances of the particular case.[19] The Attorney-General observed in the second reading speech when introducing the amended mandatory sentencing provisions: “The exceptional circumstances exemption is intended to be broad and the court may consider any matters it considers relevant.”[20]

The term ‘exceptional’ describes a circumstance which is out of the ordinary course or unusual, or special or uncommon. It does not need to be unique, unprecedented or very rare, but it cannot be a circumstance that is routinely or normally encountered.[21]
“Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.”[22]
Did the sentencing magistrate fail to take into account any disproportionality between the mandatory minimum sentence and an otherwise just sentence?
The appellant contends:
(a)that the sentencing magistrate found that the mandatory minimum was disproportionate to the sentence that would otherwise be imposed; and
(b)that his Honour did not take that into account in deciding whether there were exceptional circumstances in this case.
I do not think the appellant can establish either.
The appellant relies on two passages from the sentencing magistrate’s reasons to establish that the magistrate was of the opinion that there was such disproportionality.
Mr Aust submits confidently that were it not for that section, the Court would not be thinking about a sentence of 3 months’ actual imprisonment and I think he is right in that for various reasons in relation to your motivation for going to the house in the first instance - or part of the motivation that is - [being] concern for the children; because of the fact that you have only one violent previous conviction and that one is a long time ago; because you have, it seems, responded appropriately to the domestic violence order that arose out of these circumstances I am dealing with, Mr Aust submits - and I think he is right - that the Court would probably not be looking to sentence you for 3 months of actual custody, but find some other sentence depriving you of rather less liberty, perhaps for a longer time under some form of conditional release, suspended sentence or otherwise, with a view to restoring the peace, protecting the victim of this assault and generally dealing with the matter.
…
… if I were free to do so, I suspect I would be imposing a sentence of less than 3 months’ actual custody … [emphasis added]
This does not seem to me (especially in light of the underlined words) to be a statement to the effect that the mandatory minimum is disproportionate to what would otherwise be an appropriate sentence. “Disproportionate” means more than just different or even higher. It means “out of proportion”. His Honour said nothing more than that, absent the mandatory minimum, the sentence to be imposed would (probably) be differently structured and involve less than three months actual imprisonment. It is precisely in these circumstances that the mandatory minimum sentence is intended to operate unless the case is exceptional – ie “out of the ordinary course or unusual, or special or uncommon”.
Nor do I think the appellant has established that his Honour failed to take into account the difference between the mandatory minimum and the sentence that would otherwise be imposed. He clearly had that difference in mind and said so in the passages relied on by the appellant. Mr Aust referred his Honour to the relevant authorities and made the submissions summarised at [9] above; his Honour adjourned to consider those authorities before passing sentence, and determined that the circumstances relied upon were not particularly unusual, either individually or in combination. In doing so he said:
I take into account all the other matters that Mr Aust has mentioned, and as I said, if I were free to do so, I suspect I would be imposing a sentence of less than 3 months’ actual custody but I cannot see that the law permits me to do that. [emphasis added]
The underlined words clearly indicate that his Honour took into account all of the submissions made by Mr Aust including his submission that “disproportionality” was a relevant consideration.

Did the sentencing magistrate apply the wrong test?

The appellant takes issue with the sentencing magistrate’s reasoning in the following passage.
However, before I am allowed to do that, I have to find exceptional circumstances in the case. I have to say I am afraid, Mr Wright, that as far as the physical facts of the matter are concerned and your motivation - even if you were entirely and 100 percent concerned with the welfare of the children - that would not in any render this an unusual case. Time and again this Court hears of parents, nearly always men, who are moved by concern for their children to assault the mother of those children and (inaudible) not even - not even slightly unusual for this to be a motivation.
The other circumstances put forward too are hardly rare. They are - it is not by any means usual that someone comes before the Court in peril under this sentencing section with only one previous conviction; that is not the norm, I suppose. And it is not usual, but by no means rare, that the old conviction be as old as this one is, something like 15, 16 years before the date of the current offence. But as I say, none of these is, from my view, an unusual circumstance, far from it, nor in combination can I regard the combination of facts and antecedence as being particularly unusual.[23] [emphasis added]
The appellant contends that the underlined passages amount to findings that two of the circumstances relied upon by the appellant amount to “unusual circumstances” that ought to have led to a finding that the “exceptional circumstances” exception to the mandatory sentencing regime applied. I agree that the use of the words “usual”, and “unusual” in this context has a tendency to be a little confusing. However, I bear in mind that magistrates are working under pressures which mean that they are simply unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[24]
I do not consider that the sentencing magistrate applied the wrong test. A fair reading of his Honour’s reasons shows that although he considered it might not be common for people to be subject to the mandatory sentencing regime on the basis of only one prior conviction as old as this one, his Honour was not satisfied (in the words of s 78DI) that “the circumstances of the case are exceptional”. It cannot be the case that any finding that any aspect of the case is at all unusual must lead to a finding that it is an exceptional case. Moreover, the sentencing magistrate considered all of the circumstances of the case and his Honour’s conclusion was clearly expressed:
…. none of these is, from my view, an unusual circumstance, far from it, nor in combination can I regard the combination of facts and antecedence as being particularly unusual.
As for the use of the term “particularly unusual”, I do not construe that as applying any different principle than that set out in R v Duncan. His Honour was simply using a common English idiom, not applying a more stringent test for what amounts to “exceptional”.
Was the sentencing magistrate’s determination that the circumstances were not exceptional unreasonable?
The appellant contended that the factors relied on before the sentencing magistrate, in combination, established exceptional circumstances in this case, and in written submissions, the appellant contended that the sentencing magistrate was in error in failing to give “appropriate weight” to these factors (both individually and collectively) in determining whether exceptional circumstances existed.
What weight should be given to various factors in determining whether the case is exceptional is a matter for the sentencing magistrate, provided the sentencing magistrate does not take into account irrelevant considerations, fail to take into account relevant considerations, or otherwise act on wrong principle. It has not been suggested that the sentencing magistrate took into account any irrelevant considerations; I have already determined that the sentencing magistrate did not fail to take into account the fact that on normal sentencing principles the appellant’s sentence would probably have been differently structured, and involve less actual prison time to be served; it has not been suggested that his Honour failed to take any other relevant matter into account; I have determined that his Honour did not apply the wrong test in determining whether the circumstances of the case were exceptional; and it has not been suggested that his Honour erred in principle in any other identifiable way. Therefore it is not open to me to interfere with the exercise of the learned magistrate’s decision unless it is shown to be so unreasonable that no reasonable magistrate could have arrived at it.[25]
The trial judge’s exercise of the sentencing discretion is not to be disturbed on appeal unless error has been shown in the exercise of the discretion. The presumption is that there is no error. The appeal court will interfere only if it is shown that the sentencing judge acted on a wrong principle. The error may appear in what the sentencing judge has said in the proceedings or the result may be the sentence itself may be so excessive or inadequate as to manifest such error.[26]
In oral submissions, counsel for the appellant contended that the mandatory minimum sentence of three months actual imprisonment was so grossly disproportionate to the objective seriousness of the offending in all of the circumstances that no reasonable magistrate, acting on correct principles, could possibly have determined that the circumstances were not exceptional.[27]
I disagree. The lynch pin of this argument is the contention that the mandatory minimum sentence was grossly disproportionate to the objective seriousness of the offending in the circumstances. I do not think it was; nor, on a fair reading of his Honour’s sentencing remarks, did the learned sentencing magistrate. He merely noted that, absent the statutory mandatory minimum, the appellant’s sentence would probably have been differently structured, and involve less actual prison time.
Although (as the sentencing magistrate observed) the offence was far from the most serious of assaults, it was not trivial. As his Honour noted:
… any level of violence in the context of a woman who is returning home and is hoping to get to the safety of her house is alarming and not the sort of thing about should happen and she would not have known how fast things were going to go given that she was apparently being accused of - you were moved not only by concern for the children as far as she could tell but also by jealousy of some sort.[28]
The sentence of three months must be seen in the context of the maximum penalty provided by the legislature which is imprisonment for five years.[29] The offending was far from the most serious and so was the sentence.
His Honour considered each of the factors relied upon by the appellant to constitute exceptional circumstances and concluded that the circumstances of the case were not exceptional when considered either individually or in combination. He committed no error in doing so, and his decision was not unreasonable.
The appeal is dismissed.

[1] Sentencing Act s 78CA(3)

[2] Sentencing Act s 78DD

[3] Sentencing Act s 78DI(1)

[4] [2015] NTCCA 2

[5] [2015] NTSC 18

[6] [2015] NTSC 18

[7] [2015] NTCCA 2

[8] Transcript of proceedings on 1 July 2015, p 10

[9] ibid - I have corrected some of the punctuation in the transcript to better reflect the evident meaning being expressed.

[10] ibid, pp 10-11

[11] ibid, p 11

[12] [2014] NTSC 39, at [24], [26]

[13] [2015] NTSC 18

[14] at [25]

[15] at [26]

[16] [2015] NTSC 18

[17] ibid, at [34]

[18] [2015] NTCCA 2

[19] ibid, at [27]

[20] Northern Territory, Parliamentary Debates, Legislative Assembly, 29 November 2012, quoted in R v Duncan, supra at [24]

[21] R v Duncan [2015] NTCCA 2, at [25]

[22] Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290, at [66], referring to Ho v Professional Services Review Committee No 295 [2007] FCA 388, at [26], cited with approval in R v Duncan [2015] NTCCA 2, at [26]

[23] Transcript of proceedings on 1 July 2015, pp 10-11

[24] Jambajimba v Dredge (1985) 33 NTR 19, at 22 per Muirhead ACJ.

[25] House v The King (1936) 55 CLR 499 at 505 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

[26] R v Tait and Bartley (1979) 24 ALR 473 at 476 and Salmon v Chute (1994) 94 NTR 1 at 24

[27] This submission is hard to reconcile with the fact that the appellant did not press Ground 3 of the Appeal - that the sentence was manifestly excessive.

[28] Transcript of proceedings on 1 July 2015, p 10

[29] What is to be taken into account by a judicial officer imposing a sentence is not the jurisdictional limit of the court but the maximum penalty imposed by the legislature for an offence. Wheeler v Eaton [2012] NTSC 80, at [17], referring to Taylor v Malagorski [2011] NTSC 98, at [24], and C v Gokel [1999] NTSC 93, at [14]-[15]