[Back to Main List] [Back to NTSC 2005 List]

Horrigan v Rowbottam & Ors [2005] NTSC 60

PARTIES: HORRIGAN, Dennis

v

ROWBOTTAM, Helen
AND:
McKINNEY, Tania
AND:
CARLON, Lorraine Joy

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION exercising Territory jurisdiction

FILE NO: No JA 61/04 (20405389)
No JA 62/04 (20406231)
No JA 95/04 (20407785)
No JA 82/04 (20408286)

DELIVERED: 4 October 2005

HEARING DATE: 1 June 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

MAGISTRATES – Appeals from Magistrates
CRIMINAL LAW – Offences against the person – property offences

Appeals against sentence – whether there was a failure to comply with the totality principle – whether sentences were manifestly excessive – appeal dismissed

Criminal Code; Domestic Violence Act
Thomas, Principles of Sentencing, 2nd ed (1979)
Ellis v The Queen [2005] NTCCA 1; R v Gordon (1994) 71 A Crim R 459; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Regina v The Queen [2004] NTCCA 9; Whitlam v R [1993] NTCA 19, applied

REPRESENTATION:

Counsel:
Appellant: L McDade
Respondents: S Geary

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondents: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Sou0509
Number of pages: 26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Horrigan v Rowbottam & Ors [2005] NTSC 60
No. JA 61/04 (20405389); No. JA 62/04 (20406231);
No. JA 95/04 (20407785); No. JA 82/04 (20408286)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentences handed down in the Court of Summary Jurisdiction in Darwin
BETWEEN:

DALLAS HORRIGAN
Appellant

AND:

HELEN ROWBOTTAM
AND:
TANIA McKINNEY
AND:
LORRAINE JOY CARLON
Respondents


CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 4 October 2005)

Introduction

[1] Dallas Horrigan, the appellant, has filed four appeals against a number of sentences of imprisonment that were imposed on him by the Court of Summary Jurisdiction during 2004. The appeals are brought in respect of Court of Summary Jurisdiction proceedings numbered 20405389, 20406231, 20407785 and 20408286. The sentences of imprisonment were imposed on the appellant for a number of offences that he committed against Karen Richardson, the victim, between 15 February 2005 and 2 April 2005. The appeals were heard together.

[2] On 15 February 2004 the appellant unlawfully assaulted the victim. On 5 May 2004 the appellant was charged on information for an indictable offence with aggravated assault (Court of Summary Jurisdiction proceeding number 20408286). On 3 June 2004 following a trial in the Court of Summary Jurisdiction the appellant was convicted of the aggravated assault. At the request of the appellant his sentencing for the offence was adjourned until 3 September 2004. On that date the appellant was sentenced to eight months imprisonment back dated to 24 March 2004. The sentence of imprisonment was ordered to be suspended immediately on 3 September 2004.

[3] On 1 March 2004 the appellant unlawfully drove his Nissan four wheel drive into a pillar supporting the roof of the carport that was located at 30 Cavalcade Road, Humpty Doo. The appellant was arrested for this offence and a restraining order was obtained against him pursuant to s 6 of the Domestic Violence Act. He was granted bail on 2 March 2004. On 15 March 2004 the appellant was charged on complaint with unlawfully damaging the pillar of the carport and a window (Court of Summary Jurisdiction proceeding number 20405389). On 1 July 2004 following a trial in the Court of Summary Jurisdiction, the appellant was found guilty of unlawfully damaging the pillar of the carport and he was sentenced to four weeks imprisonment backdated to 24 March 2004. The result of backdating the sentence to 24 March 2004 was that on 1 July 2004 the appellant was effectively discharged from the offence of unlawfully damaging the pillar of the carport.

[4] On 12 March 2004 the appellant threatened to kill and unlawfully assaulted the victim. At this time he was subject to a restraining order granted pursuant to s 6 of the Domestic Violence Act. The appellant was arrested for this offence on 12 March 2005. He was granted bail by the Supreme Court on 19 March 2004. On 15 March 2004 the appellant was charged on complaint with breaching a domestic violence order (Court of Summary Jurisdiction proceeding number 20406231). On 15 March 2004 the appellant was charged on information for an indictable offence with threat to kill and aggravated assault (Court of Summary Jurisdiction proceeding 20406231). On 30 June 2004 the appellant pleaded guilty to breaching the restraining order. On 13 July 2004 following a trial in the Court of Summary Jurisdiction, the appellant was convicted of the threat to kill and aggravated assault. On 3 September 2004 the appellant was sentenced for all three offences that he committed on 12 March 2004. For breaching the restraining order he was found guilty and convicted but no further penalty was imposed. For the charges of threat to kill and aggravated assault the offender was sentenced to an aggregate period of 10 months imprisonment commencing on 3 September 2004. The sentence of imprisonment was ordered to be suspended after the appellant had served six months of the sentence of imprisonment.

[5] On 2 April 2004 contrary to s 226B of the Criminal Code the offender unlawfully invaded the victim’s home, he broke a window, he assaulted her three times and he deprived her of her liberty. At the time he was subject to a restraining order and a condition of his bail for the offences committed on 12 March 2004 was that he should not approach the victim. The appellant was arrested on 2 April 2004. He has not been released from custody since that date. On 5 April 2004 the appellant was charged on complaint with breaching the domestic violence order made on 12 March 2004 (Court of Summary Jurisdiction proceeding number 20407785). On 5 April 2004 the appellant was also charged on information for an indictable offence with home invasion, aggravated assault and deprivation of liberty (Court of Summary Jurisdiction proceeding 20407785). On 3 September 2004 the appellant was charged on information for an indictable offence with two counts of aggravated assault (Court of Summary Jurisdiction proceeding 20407785).

[6] On 26 November 2004 the appellant pleaded guilty to failing to comply with the terms of the restraining order and home invasion. On 1 December 2004, following a trial in the Court of Summary Jurisdiction, the appellant was convicted of each of the four offences to which he had pleaded not guilty. He was found not guilty of one of the circumstances of aggravated assault namely, causing bodily harm to the victim. On 1 December 2004 the offender was sentenced to: three months imprisonment for breaching the restraining order that was made pursuant to s 6 of the Domestic Violence Act (the term of imprisonment to start from 1 March 2005); 12 months imprisonment for home invasion (the term of imprisonment to start one month after the start of the three month sentence of imprisonment for breaching the restraining order); 12 months imprisonment for the crime depriving the victim of her liberty (nine months of the prison sentence was ordered to be served concurrently with the 12 months sentence of imprisonment that was imposed on the appellant for home invasion); an aggregate period of six months imprisonment for the three unlawful assaults on the victim (the aggregate sentence of imprisonment for the three assaults was ordered to be served concurrently with the sentence of imprisonment for depriving the victim of her personal liberty). The aggregate sentence of imprisonment that was imposed on the appellant for his offending on 2 April 2004 was 16 months with a non-parole period of nine months.

[7] On 29 July 2004 the appellant filed a notice of appeal against his conviction and sentence in the Court of Summary Jurisdiction in proceeding number 20405389 for the offence unlawfully damaging the carport at 30 Cavalcade Road, Humpty Doo on 1 March 2004. On 5 April 2005 the appellant filed an amended notice of appeal dated 30 March 2005. The amended notice of appeal abandoned the appeal against conviction.

[8] On 29 July 2004 the appellant filed a notice of appeal against his conviction in the Court of Summary Jurisdiction in proceeding 20406231 for the offences of threat to kill and aggravated assault that was committed on the victim on 12 March 2004. On 5 April 2005 the appellant filed an amended notice of appeal dated 4 April 2005. The amended notice of appeal abandoned the appeal against conviction and substituted an appeal against the sentence of imprisonment that was imposed on him.

[9] On 22 September 2004 the appellant filed a notice of appeal dated 21 September 2004 appealing against his sentence of imprisonment in the Court of Summary Jurisdiction in proceeding number 20408286 for aggravated assault against the victim on 15 February 2004. On 5 April 2005 the appellant filed an amended notice of appeal adding an additional ground of appeal against sentence.

[10] On 9 December 2004 the appellant filed a notice of appeal dated 8 December 2004 appealing against the sentences of imprisonment that were imposed on him by the Court of Summary Jurisdiction in proceeding number 20407785 on 1 December 2004 for breach of a domestic violence order, home invasion, deprivation of liberty and for three aggravated assaults on the victim that were committed on 2 April 2004.

The Grounds of Appeal

[11] The principal grounds of appeal in each appeal are that each of the sentences of imprisonment imposed on the appellant by the Court of Summary Jurisdiction offended against the totality principle, or alternatively, was manifestly excessive. It was said by counsel for the appellant that, as there were four separate proceedings involving the same course of conduct before four different magistrates, there was inevitably going to be a failure by the Court of Summary Jurisdiction to comply with the totality principle.

[12] In my opinion each of the appeals should be dismissed. The effective aggregate sentence of imprisonment both as to head sentence and non-parole period that has been imposed on the appellant is just and appropriate to the whole of his criminal conduct. The principle of totality has not been offended and none of the individual sentences of imprisonment was manifestly excessive.

The Totality Principle

[13] The totality principle requires that the aggregate sentence to be imposed on a multiple offender be of a degree of severity appropriate to the offender’s conduct viewed as a whole: Mill v The Queen (1988) 166 CLR 59; Ellis v The Queen [2005] NTCCA 1. The principle requires a sentencer, who has passed a series of sentences each properly calculated in relation to the offence for which it is to be imposed and each properly made consecutive sentences, to review the aggregate sentence to consider whether it is just and appropriate to the totality of the offender’s criminal behaviour: Mill v The Queen (supra) at 62 - 63; Thomas, Principles of Sentencing, 2nd ed (1979) at 56 - 57.

[14] The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence: Mill v The Queen (supra) at 59.

[15] The principle applies to require a sentencing judge or magistrate to take into account sentences of imprisonment presently being served by an offender or sentences of imprisonment which have been recently imposed on an offender for other offences by other judges or magistrates: Postiglione v The Queen (1997) 189 CLR 295; Mill v The Queen (supra); Whitlam v R [1993] NTCA 19. However, the principle does not require an offender’s sentencing to be adjourned until all outstanding matters involving an offender have been dealt with by the court. Nor does it follow that there will inevitably be an error where there is a higher aggregate sentence than otherwise may have been the case because cumulative sentences have been imposed by different magistrates. The principle simply requires each sentencing court to consider what would have been the likely effective sentence if the offender had been sentenced for all offences at the one time and if necessary the second, third or fourth sentencing court should reduce the sentence of imprisonment to be imposed on the offender to ensure that the aggregate sentence of imprisonment properly reflects the totality of the offender’s criminal behaviour. The latter sentencing court should reduce its sentence in accordance with the totality principle even if this means imposing a sentence of imprisonment that may not adequately reflect the specific offending that is the subject of the proceeding before the latter sentencing court: Mill v The Queen (supra); R v Gordon (1994) 71 A Crim R 459; Regina v The Queen [2004] NTCCA 9; Ellis v The Queen (supra).

[16] It may also be that on occasion the aggregate sentence of imprisonment to be imposed on a multiple offender does, without any adjustment, properly reflect the totality of the offender’s criminal behaviour.

The Facts

[17] Because this Court is concerned with forming a judgment about the overall criminality involved in the whole of the appellant’s offending, it is necessary to say something about the facts.

[18] The appellant is 31 years of age. He was born in Ipswich in Queensland on 27 February 1974. He left high school half way through year 10. He has worked as a stockman and a labourer doing jobs such as maintenance work, welding, gardening and putting roofs on buildings. He has also earned an income by riding bulls at rodeos. He has been unemployed from time to time. At the time of this offending he was taking prescribed medication called Zactin. The medication is used to treat depression and obsessive compulsive disorder. The appellant has no children.

[19] The appellant has a criminal history that predates the offending that is the subject of these appeals. His prior offending includes an aggravated assault against a previous partner in 1998 for which he was given a three month suspended sentence of imprisonment, another assault in 1998, two breaches of a domestic violence order on 23 April 1995 and wilful and unlawful damage to property on 23 April 1995 for which he received fines of $300, assault in August 1993 and failing to quit licensed premises and disorderly behaviour in 1993. The 1995 offences were committed in Queensland.

[20] The appellant and the victim lived in a de facto relationship for about four years. The relationship started in 2000. They lived at 30 Cavalcade Road, Humpty Doo, where they placed a demountable dwelling house and made various improvements to the house and the property. The couple pooled their energies and resources to acquire and improve the property and the house. The property was registered in the name of the victim as only she was able to obtain mortgage finance to purchase the property. The relationship came to an end on 15 February 2004. The separation was acrimonious and the appellant harboured hostile emotions towards the victim.

[21] On 15 February 2004 the appellant assaulted the victim. The facts of the assault were as follows. On the morning of Sunday 15 February 2004 the appellant and the victim decided to go for a trip into town. They had lunch and went to see a movie. When they returned home the appellant went to bed and the victim stayed up watching television. At 11.00 pm the victim went to bed. When she did so the appellant asked her if they could make love. She said, “No, not tonight”. The appellant then flew into a rage. He punched the victim with his fist in the back. The punch was enough to take the victim’s breath away. The appellant then got out of bed and turned on the light. He yelled at the victim and asked her why she did not try harder to make the relationship work. Then while the victim was on the bed, the appellant put his hands around her throat in a strangle hold. His thumbs were pushed into her epiglottis and his fingers were placed around the base of her neck. While the appellant held the victim in this manner he told her that he was going to kill her. He squeezed hard on her throat. He did so six times. This caused the victim to choke. She could not breathe when she was being choked. At one stage the appellant had the victim pinned down on the floor. When she was on the floor he was holding her by the throat. She was then thrown across to the other side of the bed by the appellant. She landed on her back on the bed. This caused the wooden bed head to snap off. The appellant then picked up the victim by her hair. He yelled at her when he did so. He then threw her on the bed and again grabbed her by the throat. At one stage the appellant placed a pillow or a doona over the face of the victim. During this episode she was also struggling to breathe.

[22] The assaults on the victim occurred over a period of two and a half hours. When the appellant stopped assaulting the victim she said to him that she would have to leave because she was concerned about her safety. They also discussed what they were going to do with the property. At some time during this discussion the appellant backhanded the victim on the side of her face and eye. At no time did the victim consent to being assaulted by the appellant, nor did she say anything to him in order to provoke him.

[23] Following the assault on 15 February 2004 the victim went to stay at her friend’s house for approximately one week. The following Monday the victim went to stay at a safe house. About one week before 1 March 2004 she returned to live 30 Cavalcade Road, Humpty Doo. By this time the appellant had moved out of the house and it was agreed that the victim alone would live at the house.

[24] As a result of the assaults on her by the appellant on 15 February 2004 the victim did not suffer a loss of consciousness. However, she suffered severe bruising. The Community Health Nurse found that there were three small circular bruises just under the victim’s jaw line. There was also a small conjunctival haemorrhage in her left eye. The victim’s left upper arm had a small bruise. There was also a bruise on the rear lateral aspect of her right upper arm. There was a small bruise to her left and right collar bones. There was a small bruise just above her left breast. There was a dark bruise on her right shoulder. There were two bruises to the victim’s right lower mid back. There was also a bruise on the victim’s right upper back. Her left thigh also had a bruise. There was a bruise to her right leg just below the patella and the right patella had a small graze.

[25] On 1 March 2004 the appellant telephoned the victim while she was at work. He said that he wanted to remove his two lounge chairs, television and video player from the house at Humpty Doo. He told the victim that if she did not come home and open the door and let him in he was going to break the door down. She told him that she would come home to let him into the house. She then rang her solicitor and arranged a police standby. While she was driving out to her home the appellant telephoned her twice on her mobile phone. The first time he told the victim that he had let her two show horses out onto the road and the second time he asked her if she was bringing any bodyguard with her.

[26] The appellant had become angry because when he arrived at 30 Cavalcade Road on 1 March 2004 he noticed that his orange Nissan Patrol 4-wheel drive motor vehicle, which had been left on the property, was laden with his personal property. The windows of the motor vehicle were down and rain had got into the motor vehicle. As a result his personal property which had been stored in the motor vehicle including material of sentimental value, particularly photographs, had been adversely affected by the wet weather. The appellant was also aggravated because he wanted to remove his property from the house but could not do so as some of it was locked inside the house. He did not have a key which could unlock the dead lock that had been placed on the door of the house since his departure from the house.

[27] A pillar of the carport was damaged by the appellant. The damage was caused by the appellant deliberately driving his orange Nissan 4-wheel drive motor vehicle into the pillar of the carport. The magistrate was satisfied that the appellant’s act of driving into the pillar was a malicious and deliberate act of damage to property.

[28] By the time the victim arrived at the property the appellant had left the property and the police were already at the house. A short time later the appellant returned. He parked his car on the side of the road and walked up the driveway of the property. He was very wild and the police told the victim to go inside. While the police spoke to the appellant he continued yelling. The appellant called the victim various abusive names. He would not calm down and the police arrested him, placed him in the paddy wagon and drove him back to the watch house. The appellant did not have permission to damage the property. The cost of repairing the damage to the pillar of the carport was $616.

[29] The impact of the appellant’s offending on 1 March 2004 on the victim was that she was traumatised by the damage to the property and she suffered from anxiety after the threats were made to her over the telephone.

[30] On 1 March 2004 a restraining order was obtained against the appellant pursuant to s 6 of the Domestic Violence Act. That order was in force on 12 March 2004. The appellant was granted bailed on 2 March 2004.

[31] On 12 March 2004 the victim was at her house at Humpty Doo. She woke up early in the morning and let her cat out the door. When she did so the appellant grabbed her arm and forced his way into the house. For the next 15 to 20 minutes, the appellant then proceeded to make threats to kill her. The victim gave evidence that, “He pushed me back into the house. He closed the door and pushed in the lock. He said something along the lines of, ‘Hello cunt! You did not expect to see me, did you? No court piece of paper is going to save you now. This time you’re going to die’. He was in some fairly old clothes and he had some dirt on him. He said to me that he had been waiting for me. He said he had been under my house and that he had also been bitten by a king brown snake while he was under the house. He also said that he could kill me and asked if I had read the newspapers this week. He said, ‘I have already killed two people, one more is not going to make a difference’. I knew what he was referring to. Two women had been thrown over the Adelaide River Bridge. It was in the media all that week. He also asked me if the freezer was still empty because it was broken so it didn’t have any food in it. When I said it was empty, he said, ‘Good, I’ll bleed you into it’. He said if he got a knife he could slit my throat lengthways and he would stab me in the lung and I would not even be able to get a breath out to yell for help. He also said that he could break my neck.”

[32] The appellant then proceeded to drag the victim into her bedroom. The victim gave evidence that, “Inside the bedroom door, near the corner of the bed, he was standing facing me. I was sort of half down on my knees and I was looking up at him and the next thing I saw was an arm coming towards my right side and I just remembered four blows to my forehead and one on the side and after that I fell to the ground on my side and I went dizzy. I just remember thinking something about brain damage. He then pulled me up by my hair. I was on my knees again. He had my head pulled back and I made eye contact with him. At that stage he just dropped me and started crying. He then sat back on the bed. He said to me that he did not want to hurt me. He did not know why he did things like that.” After the assault the appellant said to the victim that she should go and wipe her face which she did. He then asked her if she wanted him to drive her to hospital. She said, ‘No’. He also said that he would end up killing either himself or her.

[33] As a result of the assault the victim was extremely shaken and traumatised. She had scuffed knees, a cut to her right bottom lip, lacerations and red marks and a considerable lump on her forehead.

[34] The appellant was arrested on 12 March 2004 and the restraining order that had been imposed upon him was varied. He was made subject to a restraining order that contained the following terms: he must not enter or remain near the premises situated at 30 Cavalcade Road, Humpty Doo; he must not approach or contact the victim directly or indirectly except via solicitors in relation to Family Court proceedings regarding property matters; he must not assault, cause or threaten to cause personal injury to the victim; he must not cause or threaten to cause damage to property in the possession of the victim; he must not act in a provocative or offensive manner towards the victim. He was granted bail by the Supreme Court on 19 March 2004. It was a condition of his bail that he not approach or communicate with the victim. He was warned not to go near the victim.

[35] On 2 April 2004 the victim was at home alone. She got up in the morning and was preparing to go to work. The appellant arrived at the property. He had driven to the property but he parked on an adjoining property. He entered the premises by smashing the kitchen window and climbing into the house. The victim became aware that the appellant was entering the house and she rang the police. She told the police that the appellant was at her home and that he was smashing a window and entering the house.

[36] Once the appellant gained entry to the house he went into the bedroom where the victim was on the telephone. She was sitting on the bed. He knocked the telephone out of her hand and he hit the victim across her head with the telephone. The force of the blow forced her to spin around over the bed. She spun to her right and was moved by the blow to the other side of the bed. She ended up sitting facing the other side of the bed. She was naked at the time and the appellant told her to get dressed. When she was dressed, he grabbed hold of her and took her to the front door of the house. The appellant then dragged the victim towards his motor vehicle which was on the adjoining property. They went over a fence. He placed her in the motor vehicle through the driver’s door and he then got into the motor vehicle behind her. He then drove off. He ultimately drove off the bitumen and onto a dirt track that led into the bush at the eastern end of Townend Road, Acacia Hills.

[37] While they were travelling to the bush at the end of Townend road in the motor vehicle the victim said to the appellant, “Please don’t hurt me, don’t hurt me”. To which the appellant responded, “I’m not going to hurt you, I just want to talk”. However, she was not able to leave the motor vehicle. When she attempted to wind down the window to cry out for help the appellant grabbed her head and forcibly pushed it into the seat between them. This caused injury to the victim’s nose.

[38] When he stopped the motor vehicle in the bush the appellant ordered the victim out of the motor vehicle. She was not wearing any shoes. The appellant gave her some rubber thongs and she got a soft drink out of an esky in the back of the motor vehicle. The appellant put on a backpack. He then started walking into the bush and he told the victim to hurry up. She had to follow on foot and her feet were wet and slipping in the thongs.

[39] After a while they stopped walking. The victim sat down and the appellant knelt down near her. He started getting some papers out of his backpack. The appellant said to the victim that he just wanted to talk to her. He did not say what he wanted to talk about. The papers that he pulled out of the back pack were court papers about the various criminal charges that had been brought against him. He was upset because there were a number of criminal proceedings involving him. He asked why the victim had not stopped the criminal charges against him. The appellant then started to cry as he was upset. The victim was also upset.

[40] The appellant then asked the victim who she was talking to on the phone when he came into her bedroom. She told him it was the police. He asked her what she said to the police. She told him exactly what she said. They heard a helicopter and the appellant became worried. He thought it might have been the police looking for him. When he settled down the appellant asked the victim if she wanted to go back. He said he would take her to Palmerston to the police station. He gave her his mobile telephone and told her to ring the police and tell them that everything was okay. The appellant and the victim then returned to the motor vehicle. When they reached the motor vehicle the victim asked the appellant if she could drive and he let her drive. They drove to the Palmerston Police Station where the appellant was interviewed and arrested by police.

[41] The three assaults that the appellant was charged with for what he did to the victim on 2 April 2004 were striking the victim with the telephone, dragging her by the arm to the motor vehicle after forcibly removing her from the house and grabbing her head and smashing it into the seat of the motor vehicle while it was in motion.

[42] After the incident on 2 April 2004 the victim was too scared to go back to her home. She had to stay with friends for four weeks. When she did return home she kept the doors locked and she would not open any windows whether it was day or night. Her sleep patterns were greatly disturbed and she experienced frequent violent dreams involving the appellant. Her work was affected, she could not communicate with people and her physical health suffered.

[43] As a result of the appellant’s pleas of not guilty the victim was required to give evidence on four occasions during the five to six month period that it took for all of the charges against the appellant to be heard in the Court of Summary Jurisdiction.

[44] Although the offences took place in the context of the disintegration of a de facto relationship, they do not constitute a single course of conduct for sentencing purposes.

The Sentences of Imprisonment

[45] For all of his offending the appellant received an aggregate sentence of imprisonment of two years three months and seven days with a non-parole period of one year eight months and seven days. The effective aggregate non-parole period is about 75 per cent of the aggregate term of imprisonment that the appellant was ordered to serve. The earliest that the appellant may be released on parole is on 1 December 2005.

[46] The length of the aggregate sentence of imprisonment is primarily the result of the fact that there were four discrete episodes of offending by the appellant albeit all involving the same victim. It was appropriate for the sentences of imprisonment to be accumulated. Although the offending took place during the disintegration of a de facto relationship, there were no overlapping factors to be brought into account in determining the length of the sentences of imprisonment to be imposed for each of the four episodes of offending by the appellant.

[47] The total length of imprisonment is not of itself indicative of error. Each of the magistrates who sentenced the appellant had regard to the principle of totality.

[48] The sentence imposed by Wallace SM, who was the first magistrate to sentence the appellant and who sentenced the appellant for unlawfully damaging the carport, is of little significance as it was served wholly concurrently with another sentence of imprisonment. Nonetheless Wallace SM was aware that there were other outstanding criminal proceedings against the appellant which he was defending and the magistrate backdated the sentence that he imposed on the appellant to the 24 March 2004. Although the offence was not a terribly serious offence and a sentence of four weeks imprisonment is towards the top of the range of sentences for such offences where minimal property damage is caused, the sentence was not manifestly excessive. The sentence of imprisonment was justified as it occurred in circumstances where the appellant was attempting to harass and intimidate the accused. In such circumstances it is appropriate that considerable weight be given to deterrence and denunciation. The circumstances of the offending were not conducive to the court extending much leniency and there was little by way of mitigation. The appellant was not a person of good character in relation to such offending and he pleaded not guilty.

[49] Loadman SM who next sentenced the appellant and who sentenced him for the aggravated assault on 15 February 2004, made the sentence of imprisonment that he imposed on the appellant wholly concurrent with the sentence of imprisonment imposed by Wallace SM. The sentence of eight months imprisonment to be suspended after five months and ten days was not manifestly excessive. The assault on the victim was completely unprovoked and it was sustained assault against a woman who was unable to protect herself. It was an intimidatory and degrading attack. Deterrence is the main sentencing consideration in such circumstances. Again there was little by way of mitigation. The offending was not out of character. The appellant pleaded not guilty. The totality principle was not offended as the sentence of imprisonment was made wholly concurrent with the sentence of imprisonment that the appellant was serving for the unlawful damage to property.

[50] Bradley CSM who also sentenced the appellant on 3 September 2004 ordered that the aggregate sentence of imprisonment that he imposed on the appellant of 10 months to be suspended after six months, commence on 3 September 2004, which is the date on which the sentence of imprisonment that was imposed by Loadman SM was suspended. Bradley CSM was justified in ordering a cumulative sentence of imprisonment as the offending he was dealing with was different to the offending that was considered by Wallace SM and Loadman SM. The Chief Magistrate acknowledged that he was not capable of altering the sentences of imprisonment that had already been imposed on the appellant by the other magistrates. However, having had regard to the sentences of imprisonment which had already been imposed on the appellant and the fact that the appellant was subject to a two and a half month suspended sentence of imprisonment Bradley CSM stated, “I have tried to come down with what I think is the total and appropriate sentence for you.” He considered and applied the totality principle. The effect of the sentence imposed by Bradley CSM was that the appellant became subject to an aggregate term of imprisonment of 15 months and one week which was to be suspended after 11 months and one week. Such an aggregate sentence is towards the top of the range of sentences for the whole of the criminal behaviour of the appellant as at 12 March 2004. However, it is not manifestly excessive nor was the sentence imposed by Mr Bradley. The assault and the threat to kill on 12 March were serious. The appellant forced his way into the victim’s home, he damaged her property, threatened to kill her in an extremely graphic manner and punched her several times in the forehead and face. The assault was unprovoked and was upon a female who was unable to defend herself. The offences were also committed in the face of a restraining order. Deterrence including specific deterrence was the main sentencing consideration.

[51] The last magistrate to sentence the appellant was Trigg SM. He sentenced the appellant in accordance with the principles set out in paragraphs [13] to [16] above. First he determined what he considered to be appropriate sentences for the offending of the appellant that was before him. Second he looked at the total aggregate sentence of imprisonment that the appellant would have to serve as a result of the sentence that he was about to impose. Trigg SM specifically noted that the appellant would have to serve 20 months and nine days of imprisonment before he would be entitled to parole. He concluded that the aggregate term of imprisonment was not excessive in the circumstances of the offending and that it was the minimum which would do justice to the situation.

[52] The aggregate sentence of imprisonment imposed by Trigg SM for the offending on 2 April 2004 was consistent with the principle of totality. He was not required to make all of the sentences of imprisonment wholly concurrent. While there were significant overlapping factors in each of the offences which the appellant committed on 2 April 2004 and he was engaged in one multi faceted course of criminal conduct there were aggravating features of each offence which were properly recognised by making the sentences of imprisonment partially cumulative. For example, it was the second breach of a restraining order by the appellant and in order to deprive the victim of her liberty the appellant forced his way into the victim’s home for the second time, damaged her property and again assaulted her. The breach of the restraining order was a particularly bad breach of a restraining order. It occurred while the appellant was on bail and had been warned not to go near the victim, after the terms of the first restraining order had been made more stringent and after the appellant had been charged with the first breach of the restraining order and with the threat to kill and aggravated assault which he committed on 12 March 2004.

[53] The sentence of imprisonment imposed by Trigg SM was not manifestly excessive. The crimes committed by the appellant were serious. As I have said they were committed in breach of bail conditions and a restraining order and after the accused had been charged with the crimes committed on 12 March 2004. The nature of the crimes was escalating. Deterrence including specific deterrence, punishment, denunciation and protection of the community were the main sentencing considerations. There was less by way of mitigation. The accused pleaded not guilty to depriving the victim of her liberty and to the assaults. Consequently, he was not entitled to the usual discount for a plea of guilty for those offences. Trigg SM gave the offender an appropriate discount for the offences to which he did plead guilty.

[54] The total aggregate sentence that was imposed on the appellant was appropriate to the whole of the appellant’s criminal conduct. The offending occurred over a period of about two months and the nature and seriousness of the offending escalated over time. The appellant attempted to physically impose his will on the victim. The victim was assaulted over a period of about two months. Her home was forcibly invaded on two occasions, the appellant threatened to take the victim’s life and he abducted her. The appellant breached restraining orders on two occasions and he offended while on bail for offences against the victim in circumstances where he was specifically warned by the courts to stay away from the victim. He pleaded not guilty to all but the most blatant of the charges and the victim was forced to give evidence on four separate occasions. The appellant was disbelieved on each occasion he gave evidence.

[55] As I have said, deterrence including specific deterrence was the main factor to be considered in sentencing the appellant and the overall length of the sentence that was imposed on the appellant was not such as to deprive the appellant of the opportunity to be rehabilitated. The offending was not out of character and it occurred in blatant disregard of quite specific injunctions against the appellant coming into contact with the victim. Although the total effective non-parole period amounts to 75 per cent of the aggregate head sentence and is towards the upper range of non-parole periods in such circumstance there cannot be said to be an error in this regard. The fact that the statutory minimum non-parole periods for such offences is 50 per cent and the purpose of legislating such minimum non-parole periods is to mitigate against the severity of any head sentence, does not preclude the courts from imposing a non-parole period greater than 50 per cent in the appropriate case: CEV v The Queen (2005) NT CCA 10. No error has been demonstrated in any of the sentences imposed on the appellant.

Orders

[56] Each of the four appeals is dismissed. I will hear the parties as to costs.