The Queen v Haji–Noor [2007] NTCCA 7

PARTIES: THE QUEEN

v

HAJI–NOOR, RAMILE ROBERT

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

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 15/2006 (20603584)

DELIVERED: 18 MAY 2007

HEARING DATES: 2 MARCH 2007

JUDGMENT OF: ANGEL, MILDREN, THOMAS, RILEY
& SOUTHWOOD JJ

APPEAL FROM: MARTIN (BR) CJ – SENTENCE ON
2 AUGUST 2006

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: R Coates with Dr N Rogers
Respondent: S Cox QC with R Goldflam

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: NT Legal Aid Commission

Judgment category classification: B
Judgment ID Number: Ang200702
Number of pages: 85

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

The Queen v Haji–Noor [2007] NTCCA 7
No. CA 15 of 2006 (20603584)

BETWEEN:

THE QUEEN
Appellant

AND:

RAMILE ROBERT HAJI–NOOR
Respondent

CORAM: ANGEL, MILDREN, THOMAS, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 18 May 2007)

ANGEL J:

[1] This is a Crown appeal against sentence.

[2] The 31 year old respondent pleaded guilty to three counts; first, that on 4 February 2006 at Palmerston with intent to cause grievous harm he caused grievous harmto Paul Ellis contrary to s 177(a) Criminal Code for which the maximum penalty is life imprisonment, secondly, that on 4 February 2006 at Palmerston he unlawfully assaulted Jarrah Hawksworth aggravated by the circumstances that she suffered bodily harm and was assailed with a baseball bat, contrary to s 188(1) & (2)(a), (b) and (m) Criminal Code for which the maximum penalty is 5 years imprisonment, and thirdly that on 5 February 2006 at Palmerston he unlawfully possessed cannabis in public place, contrary to s 9(1) & (2)(f)(i) Misuse of Drugs Act for which the maximum penalty is a fine of $5,000 or imprisonment for two years.

[3] The respondent was sentenced to seven years and six months imprisonment with respect to the intentionally causing grievous harm charge, two years and sixmonths imprisonment with respect to the aggravated assault charge and nine months imprisonment with respect to the possession of cannabis charge. Those sentences were ordered to be served concurrently and a non–parole period of three years and nine months was fixed. It was further ordered that a sentence of 15 months imprisonment imposed by the Darwin Court of Summary Jurisdiction on 20 January 2006 be fully restored and that the respondent serve that sentence commencing on 5 February 2006 and that three months of the sentence of seven years and six months be served concurrently with the restored sentence of 15 months.

[4] The net effect of the Court’s orders is a head sentence of eight years and six months as from 5 February 2006, the respondent to serve the restored sentence of 15 months and thereafter the non–parole period of three years and nine months, that is, five years imprisonment before being eligible for parole.

[5] The appellant complains that the sentences in respect of the charge of intentionally causing grievous harm and the charge of aggravated assault were manifestly inadequate and that by failing to fix a non–parole period in respect of the restored sentence of 15 months the learned sentencing Judge acted in accordance with the decision of this Court in The Queen v Inkamala [2006] NTCCA 11, but contrary to the earlier decision of this Court in Walker v R [2001]
NTSC 69.

[6] The appellant seeks orders quashing the sentences in respect of counts one and two and substituting sentences which in the opinion of the Court are warranted in law and an order imposing a non–parole period in respect of the restored sentence.

[7] The crimes of intentionally causing grievous harm and aggravated assault were committed against a background of the break down in the respondent’s relationship with the female victim, Hawksworth. That relationship began in 2001 and ended in 2005. A daughter of that relationship was born in 2003.

[8] The crimes were also committed against a background of violence against the female victim, which the sentencing Judge described as disturbing.

[9] On 8 March 2002 the respondent had travelled from Broome to Darwin and had visited Hawksworth. An argument ensued. During the argument the respondentpunched Hawksworth about her face and body. He picked up two samurai swords and holding one in each hand waved them about. He struck the victim across her calf with the blunt side of one of the swords leaving red marks and bruising. Despite efforts by a security guard to assist Hawksworth the respondent grabbed her by the hair and dragged her from the room. In that process he punched the security guard. For his assault on the security guard on 30 August 2002 the respondent was given a three months suspended sentence. He was not dealt with for the assault upon Hawksworth until 20 January 2006. Apparently, Hawksworth did not pursue any criminal charges against the respondent until some years later when a number of offences committed by the respondent against her were charged.

[10] On 2 April 2004, there was another argument between the respondent and Hawksworth during which the respondent punched Hawksworth in the face. When
Hawksworth ran from the residence the respondent grabbed her by the hair and she fell backwards on to the ground. She was dragged backwards along a cement
path by her hair. She suffered multiple bruises and grazes to her face and body.

[11] On 12 July 2005 at the residence where the offence occurred on April 2004, Hawksworth returned home from work at about 8.00 pm. The respondent who
was angry and jealous took up a cross–bow and loaded it with a spear while Hawksworth was holding the very young child of the union. The respondent pointed
the spear at her and said word to the effect “One of these spears has got your name written on it. Keep going, cunt. You are going to get this in a minute”. The respondent continued to abuse Hawksworth as she went downstairs and started to leave. The respondent chased Hawksworth with a hockey stick in one hand and knife in the other. Hawksworth put her child in the car and the respondent chased her around the car twice. When Hawksworth got in to the car the respondent stabbed the front left tyre causing it to deflate. Hawksworth got out of the car and went to a phone box where she called Police.

[12] At about midnight that day the respondent entered Hawksworth’s residence and poured water in to her television receiver. Hawksworth awoke to see the
respondent standing in the doorway of her bedroom. The respondent then said to the victim “Why do you do this to me? You are the one that causes all of this and then you run to the cops”. At that time the respondent was holding a 20 cm knife in his hand. When Hawksworth reached for the phone the respondent punched her in the face about five to six times. When the respondent punched the victim he was holding the knife in his fist and the blade of the knife cut the top of the right side of Hawksworth’s head. He grabbed the victim’s hair and dragged her off the bed and in to the hallway where he punched her four or five times more. Hawksworth lost consciousness. When she awoke the respondent was no was no longer in the premises and the child was standing beside Hawksworth screaming. As a consequence Hawksworth sustained a laceration to her head and bruises and abrasions.

[13] Five days later Hawksworth arrived at her residence to find the respondent waiting for her. The respondent asked her about going to the respondent’s funeral. Hawksworth resisted and the respondent set about trying to force her to go to the funeral. The respondent picked up a 1.5 kg bar–bell weight and held the screws from the weight in his other hand. He waved them about in a threatening manner and said “So are we going”. The respondent counted numbers waiting for an answer. Hawksworth ignored him and tried to leave with her child. The respondent said words to the effect of “Go on. I would love to see you do it. I would love to see you chopped up in a grave”.

[14] The next day the respondent went to Hawksworth’s residence and using a rock smashed the windscreen of her car.

[15] The learned sentencing Judge noted that on 20 January 2006 the respondent was dealt with by the Court of Summary Jurisdiction for the offences referred to. A total of 15 months imprisonment was imposed but that sentence was suspended entirely on conditions of supervision.

[16] The learned sentencing Judge observed:

“It was a particularly lenient sentence given the long period over which offences of violence have been committed against your former partner.”

[17] In respect of this prior offending the learned sentencing Judge also said:

“I emphasise that you are not to be punished again for your conduct in the past, but that previous violence demonstrates that personal deterrence is an
important element in the sentencing discretion. It also illuminates your moral culpability and demonstrates that the conduct for which I am to sentence you
was not a momentary aberration”.

[18] The learned sentencing Judge noted that it was only two weeks following the Court of Summary Jurisdiction appearance on 20 January 2006 that the respondent committed the crimes to which he had pleaded guilty in the Supreme Court. Furthermore they were committed against a background of a domestic violence order restraining the respondent from contact with the female victim, an order with which the respondent had been served on 30 September 2005. The crimes were committed in breach of that order.

[19] The respondent and the female victim had been separated since early 2005. In February 2006 the male and female victims had been together in a domestic relationship for approximately three months.

[20] The circumstances of the offending as found by the learned sentencing Judge are as follows.

[21] In the early hours of Saturday 4 February 2006 the respondent, his brother and a friend entered a nightclub in Darwin. The respondent saw the male
and female victims dancing on the main dance floor. He approached the female victim and said that he wanted to see their daughter. She informed the respondent that she was engaged to the male victim. The respondent approached the male victim and a scuffle occurred. The respondent, his brother and the friend were evicted from the nightclub. After remaining in the city following that eviction the respondent was put in a taxi by his brother and friend. As the taxi drove off the respondent yelled out “I am going to kill them”.

[22] Between 1.00 am and 3.45 am the respondent made his way to the residence of the victims and entered the premises through an unlocked rear door. He
took up a wooden baseball bat from a bedroom cupboard and armed with that bat waited at the rear of the premises for the victims to return. Between 3.00 am and 3.45 am the victims drove in to the yard of the premises. The male victim was driving. The respondent approached the male victim who was still in the driver’s seat and holding the thick end of the baseball bat swung the bat towards the victim’s head. The male victim got out of the vehicle and a fight broke out. The female victim tried to assist her partner. The respondent chased them both around the car while armed with a baseball bat. Holding the bat in the usual way by the thinner end the respondent struck the male victim to the head an unknown number of times with the bat. The male victim fell to the ground with the respondent aiming at and striking at his head. The female victim tried to pull the respondent away. The respondent struck the female victim with the baseball bat across her back. She also fell to the ground. The respondent struck the female victim’s right foot with the baseball bat. The male victim tried to assist the female victim. The respondent again knocked him to the ground. The female victim was screaming for help and ran down the driveway. The respondent continued to strike the male victim repeatedly to the head with the baseball bat. While the male victim was prone on the ground the respondent said “I am going to kill you, you are a fucking dead man”.

[23] During this attack the male victim got on to his hands and knees. Having held the bat above his head with both hands the respondent brought the bat down on to the male victim’s head with all his force. The male victim was loosing a large amount of blood and was making gurgling sounds as he lay on the ground. The female victim was screaming. A neighbour, who had come to the aid of the victims, picked up a metal framed dog’s bed and struck the respondent with it. The female victim armed herself with a knife from inside the house. Whilst the respondent was striking the male victim to the head with the baseball bat he saw the female victim with the knife and stopped. The neighbour yelled “Stop. Just stop”. The female victim ran to the front of the house and the respondent threw the baseball bat in her direction. He then walked away from the premises.

[24] As a result of the assault the female victim suffered cuts and grazes to her inner arms, bruising to her lower back and swelling and bruising to her right ankle.

[25] Not unexpectedly the respondent caused extremely serious head injuries to the male victim. Because of the swelling of the brain caused by the blows to the victim’s head it was necessary to remove a significant portion of his skull. The victim was placed on life support and put in to a drug induced coma. In his victim impact statement the victim describes waking from a coma about ten days after the attack with the left side of his body paralysed because the right side of the brain was still bleeding. The victim had to wear a protective helmet because his brain was exposed until a second operation about five months after the attack. The victim had to learn how to eat, drink and swallow while someone else fed him over a period of about three weeks. He has experienced severe headaches.

[26] The victim was discharged from the Royal Darwin Hospital on about 28 February 2006. He was transferred to the Robertson Barracks ward until transferred to the brain injury rehabilitation unit of a hospital in Brisbane where he underwent speech and occupational therapy and physiotherapy. While he was in Brisbane the victim underwent a second operation. In the victim’s words, the right side of his skull was replaced in three pieces with titanium plates and screws. He had more that 100 stitches from the front to the side of the head. The victim describes his head as swollen for two weeks when the stitches came out. He lost about 20 kilograms in weight.

[27] The victim says he has no feeling on the right of his skull and only partial movement to the right side of this face. He is unable to drive and will not be able drink alcohol for two years. He has been advised that he could a have a seizure at any time in the next two years. The victim has trouble with strengths and movement in his left hand making it very difficult to carry out day to day tasks, like getting dressed, eating or tying shoe laces as he can only use one hand. A medical report indicates that the victim may not regain full function of his left hand. The victim is member of the armed forces and it remains to be seen whether he will recovery sufficiently to resume active duty. At the time of sentencing he was about twelve months behind in his career and it is estimated that he has incurred loses by his inability to serve in the order of $40,000 to $80,000. Emotionally the crime had a significant impact upon the victim. He was a successful baseball athlete. The baseball bat that the respondent used was a gift to the male victim for his thirteenth birthday. He is unable to play any contact sport. Following the attack upon him the victim experienced four months of nightmares every night and flashbacksas to the events. The victim described at one stage a vision of lying on his back and seeing the respondent’s face over him with a bat hitting him.

[28] The learned sentencing Judge noted that this was not a spur of the moment attack against either of the victims and that the respondent left the city intending at least to confront the victims and that by the time he got to the residence of the victims a decision had been made to bash the male victim. The learned sentencing Judge said that he was satisfied that when the respondent armed himself with a baseball bat and lay in wait for the victims the respondent intended to give the male victim a bashing and to hurt him and that at some time during the fight which followed the initial attack upon the male victim the intention was formed to cause grievous harm to the male victim. To that extent the learned sentencing Judge found the crime was pre–meditated and intentional.

[29] The learned sentencing Judge found that there were no mitigating circumstances accompanying the commission of the crimes. Having noted that the assault against the female victim when she was trying to help the male victim was a serious assault aggravated by the fact that the baseball bat had been used, the learned sentencing Judge said that the respondent’s crime against the male victim was a particularly serious crime being in the more serious category of offences of that type. The learned sentencing Judge said that there was nothing in the personal circumstances of the respondent that was capable of attracting significant mitigation in the face of the seriousness of his criminal conduct.

[30] The learned sentencing Judge found that there was not even a hint of remorse for what the respondent had done to the female victim over a period of years, including his conduct of February 2006 and that whilst the respondent was entitled to some benefit for his plea of guilty, that plea was not accompanied by “any remorse whatsoever” for his conduct towards the female victim. The learned sentencing Judge also said he was far from persuaded that the respondent was truly remorseful for what he had done to the male victim. The learned sentencing Judge said the respondent had some insight in to his anger management difficulties and his propensity to resort to violence which indicated that the respondent was “not beyond rehabilitation”. The learned sentencing Judge said he was not persuaded that the respondent was truly motivated to rehabilitate. He said “There is no truly positive sign that can lead to anyconfidence that (the respondent has) good prospects of rehabilitation”.

[31] The learned sentencing Judge went on to say:

“The crimes of violence of the type you have committed are prevalent and too often occur against the background of a breakdown in a domestic relationship complicated by problems of access to children. Women in these situations are particularly vulnerable. They are entitled to such protection as the law can give them. Deterring you and other men who are minded to behave like you towards their female partners is an important factor in the exercise of the sentencing discretion. I need to add this. It is not uncommon for men in your position to harbour a belief that their former partner had been unreasonable. Nor is it uncommon for violent men in your position to harbour a belief that the former partner has brought the violence on themselves by being unreasonable. You and others like you must learn that only you are to blame for the situation in which you now find yourself. The female victim is not the true cause of your violent behaviour over the years or in February 2006. You and others who are tempted to behave like you must understand that they are not entitled to use physical violence and, if they do, they will go to gaol. As to the male victim, it is not uncommon for men in your position to become angry and violent towards the new friend or partner. Those people are also vulnerable to attacks by men like you. It is not a case of saying they are men and can look after themselves. As your violence and the consequences well demonstrate, such men are vulnerable to violent attacks by men in your position and they too are entitled to the full protection of the law. Men in your position must understand that if they attack new friends or partners they will go to gaol. For this reason also, general deterrence is particularly significant”.

[32] In my opinion the sentence of seven years and six months imprisonment with respect to the intentionally causing grievous harm charge was manifestly inadequate, particularly given the maximum penalty for that offence is life imprisonment; cf Markarian v R (2005) 79 ALJR 1048 at 1056 [30][31]. The attack upon the male victim was unprovoked, premeditated, protracted, cowardly and vicious. It was carried out with great deliberation and ferocity and in the dead of night with a baseball bat upon an unarmed victim. The respondent only ceased bashing the victim after a neighbour had intervened and when confronted with a knife. The offending was unmitigated by any extenuating circumstances. The respondent felled the victim twice by multiple blows to the head with a baseball bat. When the male victim, vulnerable and defenceless, got on his hands and knees the respondent clubbed the victim on the back of the head with his full force. It is only by great good fortune that the victim did not die.

[33] By any measure this was a very serious offence. General deterrence, public condemnation and stern punishment were significant sentencing requirements. There was nothing in the circumstances of the offence or the offender to suggest, let alone justify, any exercise of clemency. In my opinion although no specific error is alleged or shown the sentence of seven years and six months for that offending is unreasonable and plainly unjust and therefore manifestly inadequate: Markarian v R, supra, at 1055 [25].

[34] Is the sentence of two years and six months imprisonment with respect of the aggravated assault charge manifestly inadequate? In my opinion it isnot, despite the respondent’s lengthy prior history of violence towards the female victim.

[35] The respondent’s prior history of violence towards the female victim was a significant sentencing factor in respect of this charge. I have already cited what the learned sentencing Judge said about it in his sentencing remarks. It is not alleged that the learned sentencing Judge erred in saying what he did or taking the account he did of the respondent’s prior record of violence in passing sentence. However given the decision of the New South Wales Court of Criminal Appeal in R v McNaughton (2006) 163 A Crim R 381 and the division of opinion amongst Judges of the Northern Territory Supreme Court as to therelevance to sentencing of an offender’s prior criminal history it is appropriate to say something on the topic.

[36] In McNaughton, supra, a five Judge Court held that an offender’s record of previous convictions may never be taken into account as part of the objective circumstances of the offence for the purposes of determining the upper boundary of a proportionate sentence. As Spigelman CJ said (at [24])
“ …. the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, whichcircumstances do not encompass prior convictions.” In so holding his Honour acknowledged “a difficulty with a reference in Veen No 2 to prior convictions ‘illuminating’ the offender’s ‘moral culpability’.”

[37] I am, with respect, unable to accept that an offender’s record of previous convictions may never be taken into account as part of the objective circumstances of the offence before the court. In my opinion on the facts of the present case the attack upon the female victim was but a furthermanifestation or outbreak of the respondent’s ongoing violent propensity and animosity towards her. There was in my opinion therefore a nexus between thecurrent offence and the prior offending. Contra, per McClellan CJ at CL in McNaughton, supra, at [63], Veen No 2 (1988) 164 CLR 465 confirmed rather thanrejected the principle that a prior criminal record may inform the moral culpability of an offender for the instant offence.

[38] The reasons for decision in McNaughton, with respect, do not satisfy me that Lord Diplock in Ziderman v Dental Council [1976] 1 WLR 330 (PC) at 334 was wrong when he said that “an offence which is committed by a person who has offended before is graver than a similar offence committed by a person who offends for the first time”.

[39] McNaughton also appears to me, with respect, to be inconsistent with the following passage from the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen (2003) 212 CLR 629 at 640[32], viz :

“A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences which he or she was earlier convicted or to the sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well–established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant in fixing the sentence under consideration.”

[40] As that passage demonstrates, the “upper boundary of a proportionate sentence” is not fixed absent the character and antecedents of the offender. Moreover the discrete consideration of the objective circumstances of an offence is inconsistent with the intuitive synthesis approach to sentencing approved in Markarian, supra.

[41] The character of an offender is a matter expressly to be taken into account in passing sentence: s 5(2)(e) Sentencing Act (NT).

[42] I am unable to accept, with respect, that as a matter of principle an offender’s prior offending never has any nexus with the offence before the Court.

[43] The reasons for decision in Veen v The Queen No 2 (1988) 164 CLR 465 have given rise to misunderstandings. The passage which gave rise to the “difficulty” for the members of the Court in McNaughton, supra, namely “it is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case”, appears in a discussion of what were described by the Court in Veen No 2, at 477, as“two subsidiary principles” (emphasis added).

[44] The discussion of those two principles is preceded by what appears to me, with respect, to be the nub of the decision.

[45] The sentencing Judge in Veen No 2, Hunt J, had expressly found “the present is clearly amongst the most serious category of cases by reason of that repetition”, meaning that Veen’s current offence was made worse by Veen’s prior offence; see Veen No 2 at 470. Mason CJ, Brennan, Dawson and Toohey JJ added that “in the present case, the killing of Hoson adds to the earlier acts of violence which, together with the medical evidence, amply support Hunt J’sconclusion that the applicant is a continuing danger to society”. At 473 they said:

“The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of thesentencing discretion having regard to the protection of society among other factors, which is permissible."

At 474 they said that the principle of proportionality involved the Court having regard to the protection of society as a factor in determining a proportionate sentence, that is, a prior record in so far as it illuminates the moral culpability of the offender and his being a continuing danger to society is a factor in determining a proportionate sentence in respect of the offence before the Court. That this is so is confirmed in the following passage from the judgment of Mason J in Veen No 1 which was expressly adopted as an accurate statement of the law in Veen No 2 (at 475):

“In my opinion, his Honour’s observations expressed the principle which is to be applied to cases of this kind. They demonstrate that in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The Court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when itis attended by the additional factors to which I have referred.” (emphasis added)

[46] It is significant that the majority in Veen No 2 in holding that no error of principle had affected Hunt J’s sentence did not criticise his statement that “the present is clearly among the most serious category of cases by reason of that repetition”. By way of contrast Wilson J dissented because, unlike the majority, he was of the opinion that “the repetitive nature of the offence should not have been taken into account in determining the maximum punishmentthat the particular offence could appropriately attract.” (at 488–89).

[47] Even if this analysis be wrong, I nevertheless respectfully agree with Grove J in McNaughton, at [75], that “whatever philosophical or semantic pathis travelled, if all other things are equal the repeat offender will receive severer punishment than an offender without prior criminal history.”

[48] Returning to the circumstances of the present case in my opinion a sentence of two years and six months imprisonment was not a manifestly inadequate sentence with respect to the aggravated assault charge. True it is, like the assault upon the male victim, it was an attack carried out with a baseball bat and upon a defenceless woman in the dead of night the respondent having laid in wait beforehand. It is also true that the attack upon the female victim was a further instance of continuing violence by the respondent towards the female victim which deserves stern punishment and condemnation. However the offence carries a maximum penalty of five years imprisonment and in my view whilst the offence was in the more serious category of its type, a sentence of two yearsand six months imprisonment was within the learned sentencing Judge’s discretion, albeit just within the lower bounds of that discretion.

[49] In my opinion the sentence passed with respect to the offence of intentionally causing grievous harm should be set aside and the respondent should bere–sentenced.

[50] In my opinion it was soundly within the learned sentencing Judge’s discretion to order the sentence with respect to the cannabis charge to be served concurrently with the sentences in respect of the other offences having regard to the principle of totality.

[51] A further question is whether the learned sentencing Judge correctly fixed a non–parole period having regard to the circumstance that he had restored the whole of the 15 month suspended sentence passed with respect to prior offending.

[52] In my opinion the learned sentencing Judge did not err in restoring the 15 month suspended sentence, aggregating the sentences he passed with respectto the current offending and fixing a non–parole period with respect to those sentences to commence once the respondent had served 15 months imprisonment.

[53] Counsel for the respondent submitted that s 53(2) Sentencing Act NT applied and required that any non–parole period should be in respect of the aggregate period of imprisonment that the respondent was liable to serve under the restored sentence of 15 months imprisonment together with the sentences imposed with respect to the three offences to which the respondent had pleaded guilty.

[54] There are conflicting decisions as to whether a sentencing Judge has power to fix a non–parole period in respect of a sentence or part–sentence restored pursuant to s 43 Sentencing Act NT. In the case of Walker [2001] NTSC 69 (unreported), a reference pursuant to s 21 Supreme Court Act, the Full Court held that a sentencing Judge has power pursuant to s 53(1) Sentencing Act NT to fix a non–parole period with respect to a restored sentence or part–sentence of 12 months or longer. In the later case of Inkamala [2006] NTCCA 11 (unreported) this Court held it was not possible to fix a non–parol period with respect to a restored sentence. The Court in Inkamala was not referred to the decision in Walker. In the result, if not in the reasoning, I agree with Inkamala and disagree with Walker.

[55] Section 42(1) Sentencing Act NT provides:

“(1) A court which has made an order wholly or partially suspending a sentence of imprisonment on certain conditions may, on application under this subsection, if satisfied that –

(a) the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or
(b) the offender has failed or is not longer willing to comply with a condition of the order, vary or cancel the order and, subject to subsection (2), deal with the offender for the offence or offences with respect of which the order was made in anymanner in which the court could deal with the offender if it had just convicted the offender of the offence or those offences.”

[56] Section 43(5), s 43(6) and s 43(7) Sentencing Act NT provide:

“(5) Where –
(a) on the hearing of an application under subsection (1) or on the hearing of its own motion under subsection (4A), a court is satisfied, by evidence on oath or by affidavit or by the admission of the offender, that, during the operational period of the suspended sentence, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment; or
(b) on the hearing of an application under subsection (2) or on the hearing of its own motion under subsection (4B), a court is satisfied, by evidence on oath or by affidavit or by the admission of the offender, that the offender has breached a condition of the order the court may –
(c) subject to subsection (7), restore the sentence or part sentence held in suspense and order the offender to serve it;
(d) restore part of the sentence or part sentence held in suspense and order the offender to serve it;
(e) in the case of a wholly suspended sentence, extend the operational period to a date after the date of the order suspending the sentence;
(ea) in the case of a partially suspended sentence – extend the operational period to a date after the date specified in the order suspending the sentence; or
(f) make no order with respect to the suspended sentence.
(6) Where a court orders an offender to serve a term of imprisonment that had been held in suspense, the term shall, unless the court otherwise orders, be served –
(a) immediately; and
(b) concurrently with any other term of imprisonment previously imposed on the offender by that or any other court.
(7) A court shall make an order under subsection (5)(c) unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence and, if it is of that opinion, the court shall state its reasons.”

[57] Section 53 Sentencing Act NT provides:“(1) Subject to this section and sections 53A, 54, 55 and 55A, where a court sentences an offender to be imprisoned–

(a) for life; or
(b) for 12 months or longer, that is not suspended in whole or in part,
it shall, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate.
(2) Where a court sentences an offender to be imprisoned in respect of more than one offence, a period fixed under subsection (1) shall be in respect ofthe aggregate period of imprisonment that the offender is liable to serve under all the sentences then imposed.”

[58] As is apparent from these provisions an offender who has breached the conditions of a suspended sentence may be re–sentenced anew pursuant to s 42(1) or alternatively have the whole or part of the originally suspended term of imprisonment restored or otherwise dealt with under s 43.

[59] Pursuant to s 113 Sentencing Act NT a right of appeal lies from any order made pursuant to s 42 or s 43. Section 113 Sentencing Act NT provides :

“113. Appeal against sentence imposed on variation or breach
A person sentenced by a court in a proceeding for variation or breach of a sentencing order has a right of appeal against sentence as if –
(a) the court had immediately before imposing it found the person guilty, or convicted the person, of the offence in respect of which the sentencing order was originally made; and (b) the sentence was a sentence imposed on that finding of guilt or conviction.”

[60] Section 113 Sentencing Act NT may be contrasted with appeals generally under s 410 Criminal Code NT which provides, inter alia, for leave to appeal against a sentence of imprisonment passed on an offender on the finding of guilt of an offence.

[61] It is clear, I think, from s 43(7) Sentencing Act NT that Parliament intended an offender to serve the whole of a restored term of imprisonment “unless (the Court) is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence”; that is, all the circumstances which have arisen since the suspended sentence was imposed are to be considered by the sentencing court to see whether serving less than the whole of the suspended term is justified. To fix a non–parole period with respect to a restored sentence not only enables an offender to serve less than the whole of the restored term of imprisonment but on account of circumstances other than which have arisen since the suspended sentence was imposed, the very criteria prescribed by s 43 to be considered in order to justify an offender serving a lesser term of incarceration. The restoration of a term of imprisonment pursuant to s 43 Sentencing Act NT is an altogether different exercise of sentencing discretion to that of a sentencing judge passing sentence on the finding of guilt of an offence. The fixing of a head sentence and the fixing of anon–parole period in respect of an offence requires, inter alia, a consideration of all the factors mentioned in sections 5, 6, 6A and 7 Sentencing Act NT.

[62] It is clear from the provisions of s 7(g) and (k) Sentencing Act NT that an order suspending a sentence is a sentencing order and that any other order under the Sentencing Act NT is also a sentencing order. Pace the reasoning in Walker and Inkamala, whether a court which restores a suspended sentence pursuant to s 43 Sentencing Act NT “sentences an offender to be imprisoned” is not the question. The question here rather is whether restoration of the sentence of 15 months imprisonment pursuant to s 43 Sentencing Act NT was a sentence “in respect of (an) offence” for the purposes of s 53(2) Sentencing ActNT. In my opinion it was not – it was a sentence with respect to the suspended sentence; cf. s 43(5)(f) Sentencing Act NT.

[63] When s 53 Sentencing Act NT is read as a whole it is clear enough, I think, that in subsection (1) the words “where a court sentences an offender to be imprisoned” mean where a court sentences an offender to be imprisoned in respect of an offence. That this is so is evident from sub–section (2) whichprovides:

“Where a court sentences an offender to be imprisoned in respect of more than one offence … .” (emphasis added)

[64] In my opinion a court restoring the whole or part of a term of imprisonment previously suspended pursuant to s 43 Sentencing Act NT is not sentencing an offender to be imprisoned in respect of an offence but rather with respect to a breach of a suspended sentence, whether that breach is constituted by a new offence or otherwise. In my opinion s 53 Sentencing Act NT has no application to a restored term of imprisonment.

[65] Whilst a term of imprisonment restored pursuant to s 43 Sentencing Act NT must be served and there is no power to fix a non–parole period in respect of a restored sentence of 12 months or more, a sentencing judge nevertheless has the option of proceeding alternatively pursuant to s 42 Sentencing Act NTand re–sentencing an offender anew, including the fixing of a non–parole period.

[66] In conclusion on this aspect of the case in my opinion –

(a) any term of imprisonment restored pursuant to s 43 Sentencing Act NT must be served;
(b) Section 53 Sentencing Act NT has no application to an order pursuant to s 43 Sentencing Act NT for restoration of a term of imprisonment and there is no power to fix a non–parole period with respect to a restored term;
(c) the learned sentencing Judge, having in the exercise of his discretion restored the 15 month sentence, correctly added the new sentences and fixed anon–parole period in respect of those sentences to run from the expiry of the 15 month restored sentence.

[67] The appeal should be allowed.

[68] So far as re–sentencing the respondent in accordance with my reasons above I am of the view that the offence of intentionally causing grievous harm warranted a head sentence in the order of 15 years imprisonment. I would pass a sentence to 12 years to take into account the double jeopardy principle bearing in mind that this is a Crown appeal. I would not interfere with the sentence of 2 years and 6 months imposed for the assault nor with the order that the sentence be served concurrently with the sentence in relation to the intentional grievous harm or the nine month imprisonment imposed with respect to the possession of cannabis charge.

[69] I would not interfere with the learned sentencing Judge’s order that the sentence of 15 months imprisonment imposed by the Darwin Court of Summary Jurisdiction on 20 January 2006 be fully restored. Taking into account the totality principle I would order the respondent serve three months of that restored sentence concurrently with the other counts, the remaining 12 months to be cumulative upon the other sentences imposed.

[70] The circumstances of the respondent’s offending and prior record would ordinarily attract a non–parole period of greater than fifty percent of theaggregate head sentence but bearing in mind this is a Crown appeal I would limit the non–parole period to fifty percent of the head sentence.

[71] In respect of the sentences passed in respect of the offence of intentionally causing grievous harm, the assault, and the possession of cannabis (12 years) I would pass a non–parole period of six years to run from the commencement of those sentences and order that the respondent serve the restored sentence of 15 months imprisonment commencing on 5 February 2006 and thereafter the balance of the non–parole period of six years before being eligible for parole. These orders result in an overall term of imprisonment of 13 years, the respondent being eligible for parole after serving seven years imprisonment.

 

MILDREN J:

[72] I have had the advantage of reading drafts prepared by other members of the Court.

[73] I agree with Angel J, for the reasons which his Honour gives, that the sentence imposed for the crime of intentionally causing grievous harm was manifestly inadequate. I also agree that the sentence imposed for the aggravated assault charge is within range and cannot be disturbed. I also agree with the head sentences proposed by his Honour on re-sentence. I also agree with Riley J for the reasons he gives that there was no error by the learned sentencing Judge in failing to impose a cumulative sentence for the cannabis charge. However, I have come to a different view in relation to the question of whether or not a Court has power to fix a non-parole period in respect of a fully restored sentence and whether the learned sentencing Judge correctly fixed a non-parole period having regard to the circumstance that he had restored the whole of the 15 month suspended sentence imposed with respect to the prior offending and that his Honour considered that he was bound by a recent decision of this Court not to fix a non-parole period in respect of the restored sentence.

[74] The question thus raised involves an interpretation of the provisions of the Sentencing Act relating to the restoration of the whole a sentence held in suspense and whether the court has power to fix a non-parole period in respect of the restored sentence. There are conflicting decisions of this Court on that subject. In the matter of Walker v The Queen [2001] NTSC 69 (unreported) which was a reference pursuant to s 21 of the Supreme Court Act, the question raised by the reference was whether under s 43(5)(c) or s 43(5)(d) of the Sentencing Act, when a court restores a sentence or part of a sentence which is for a period of 12 months or longer and orders the offender to serve it, the court has the power to fix a non-parole period pursuant to s 53(1) of the Act. In that case the Court held that the answer to that question must be yes.

[75] In the subsequent case of R v Inkamala [2006] NTCCA 11 (unreported) the Court held that it was not possible to fix a non-parole period in respect of a restored sentence. The Court was not referred to the decision in Walker v The Queen.

[76] I will not set out all of the relevant provisions of the Act, as that has been done by other members of the Court already, but I will refer briefly to some of the provisions.

[77] Section 53 of the Sentencing Act provides:

“(1) Subject to this section and sections 53A, 54, 55 and 55A, where a court sentences an offender to be imprisoned –
(a) for life; or
(b) for 12 months or longer, that is not suspended in whole or in part,
it shall, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate.
(2) Where a court sentences an offender to be imprisoned in respect of more than one offence, a period fixed under subsection (1) shall be in respect ofthe aggregate period of imprisonment that the offender is liable to serve under all the sentences then imposed.”

[78] Section 53A deals with the relevant non-parole periods for the crime of murder. Section 54 provides for a minimum non-parole period of not less than 50 per cent of the head sentence of imprisonment imposed. Section 55 and s 55A provide for a minimum period of not less then 70 per cent of the head sentence in the case of certain sexual offences.

[79] It is clear that when a court imposes a sentence of imprisonment, but suspends the sentence in whole or in part pursuant to s 40 of the Act, the court has no power to impose a non-parole period. In R v Inkamala, the Court was of the opinion that when a court restores a sentence or part sentence held in suspense, it does not “sentence an offender to be imprisoned”. The Court held that the sentence of imprisonment imposed on the offender was the sentence imposed at the time of the original sentencing order and when a court restores a sentence or part sentence the court commits the offender to gaol for the period or part period of the sentence already imposed. Attention was also drawn to s 40(8) which provides that “a partly suspended sentence of imprisonment shall be taken, for all purposes, to be a sentence of imprisonment for the whole term stated by the court”. Similarly, s 40(5) provides that a wholly suspended sentence of imprisonment shall be taken to be a sentence of imprisonment for the purposes of all enactments except an enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or benefits.

[80] It is to be noted that s 43(5) does not expressly provide, as it might have done, that when a sentence or part sentence was restored that the order suspending the sentence is revoked. Nevertheless, it must follow that when the court restores the whole of a sentence held in suspense, the order suspending the sentence must have been revoked even though the head sentence cannot be altered. This is to be contrasted with s 42(1) which provides as follows:

“(1) A court which has made an order wholly or partially suspending a sentence of imprisonment on certain conditions may, on application under this subsection, if satisfied that –
(a) the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or
(b) the offender has failed or is no longer willing to comply with a condition of the order,
vary or cancel the order and, subject to subsection (2), deal with the offender for the offence or offences with respect to which the order was made in anymanner in which the court could deal with the offenders if it had just convicted the offender of the offence or those offences.”

[81] It is also clear from s 43(5) that where a court extends the operational period to a date after the date specified in the original order or makes no order in respect of the suspended sentence pursuant to s 43(5)(e), s 43(5) (ea) or s 43(5)(f) the original order suspending the sentence has not been revoked.

[82] Part of the difficulty lies in the expression to be found in s 53(1) “where a court sentences an offender to be imprisoned”. As Southwood J pointsout in his judgment, the word ‘sentence’ has a variety of meanings depending upon the context in which it is used.

[83] We were referred to s 113 of the Sentencing Act which provides as follows:

“113. Appeal against sentence imposed on variation or breach
A person sentenced by a court in a proceeding for variation or breach of a sentencing order has a right of appeal against sentence as if –
(a) the court has immediately before imposing it found the person guilty, or convicted the person, of the offence in respect of which the sentencing order was originally made; and (b) the sentence was a sentence imposed on that finding of guilt or conviction.”

[84] The draftsman of s 113 has used language indicating that a person whose sentence has been restored was being ‘sentenced’.

[85] It is clear from s 7(g) of the Sentencing Act that when a court sentences an offender to serve a term of imprisonment which is suspended, wholly or partly, the court is making a “sentencing order”. Section 7(k) also refers to the making of any order authorised by the Act as a “sentencing order”. It is clear that except where the court makes no order with respect to the suspended sentence each of the other types of orders referred to in s 43(5) aresentencing orders. However, that does not necessarily mean that every sentencing order is a “sentence”. I note that the word ‘sentence’ is not defined.

[86] In the case of R v Hatch (1998) 3 VR 693; (1997) 95 A Crim R 46, a similar question arose with respect to the interpretation to be given to the corresponding provisions of the Sentencing Act (1991) (Vic). The majority of the Court in that case held that a judge who restores the whole or part of a sentence has a discretion to fix a non-parole period provided that the period of the sentence which was restored exceeded the minimum statutory period entitling a court to fix a non-parole period, or if the period restored was for 12 months or more, their Honours held there was an obligation in that event to fix a non-parole period. Although there are similarities in the legislation, there are also a number of differences particularly in the wording of the provisions dealing with the minimum non-parole periods and also with respect to the circumstances under which a non-parole period may be fixed. There is also a power under the Victorian Act, but not under the Northern Territory Act, to impose a fine in addition to restoring the sentence or part sentence held in suspense.

[87] Notwithstanding the infelicity of language used by the draftsman, I think that the proper construction to be given to s 43(5)(c) is that when the court restores the sentence or part sentence held in suspense and orders the offender to serve it, the court “sentences an offender to be imprisoned” within the meaning of s 53, s 54, s 55 and s 55A.

[88] Parole is an important sentencing consideration. The purposes of the parole system were explained by Deane, Dawson and Toohey JJ in R v Shrestha (1990-1991) 173 CLR 48 at pp 67-68:

“The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. … the parole system allows for a review of the offender’s case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner’s conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole. Obviously, a reviewing authority with that up-to-date information should be in a better position to determine whether it is appropriate that the prisoner be then released on parole than the sentencing judge would have been at the time, often years before, when the head sentence of imprisonment was imposed and a minimum non-parole period was fixed. Thus, and subject to the above-mentioned exceptions, it is a central aspect of the working of parole systems in this country that the function performed by the sentencing judge in relation to parole is to determine whether it isappropriate or inappropriate that the convicted person be eligible to be considered by the parole authority for release on parole at some future time.”

[89] It would seem to me to be most unlikely that the legislature intended to deprive a prisoner of the possible benefit of a parole order in circumstances where the court has been required to restore a sentence or part sentence held in suspense. Under the terms of the Sentencing Act it is possible for a sentence to be suspended for a very long period of time. Section 40(5) provides that a sentenced may be wholly or partly suspended so long as the head sentence or the aggregate of the head sentences does not exceed five years. It is therefore conceivable that a very lengthy sentence could be ordered to be restored. Indeed, a sentence or part sentence ordered to be restored is very likely to exceed a period of 12 months which, for the purposes of s 53(1)(b), is the triggering event requiring a judge to consider the fixing of a non-parole period.

[90] I think that the power to make a parole order under s 53 is a remedial or beneficial provision. It is clearly advantageous to the individual. In R v Shrestha (supra) at p 69, Deane, Dawson and Toohey JJ said:

“… in a society where imprisonment for the punishment of crime is accepted as being sometimes unavoidable, the parole system represents an important influence for the reform and rehabilitation of those in gaol. In a case where subsequent eligibility for parole is not precluded by order of the sentencing judge, the indeterminate nature of the period (within the confines of the head sentence) which will actually be served in custody provides the offender with a basis for hope of earlier release and in turn an incentive for rehabilitation”. From this flow two significant and valuable consequences. The first is that prisoner is likely to be better behaved while in confinement. The second is that a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self-respect and to enjoy some real prospects for eventual rehabilitation. In the harsh context of a prison environment, the potential advantages – in terms of hope, self-esteem, incentive for reform and rehabilitation – which eligibility for release on parole offers a prisoner in an Australian gaol should not be underestimated.”

[91] Brennan and McHugh JJ at p 63 said:

“It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.”

[92] As Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, at para [9.2] observe “any legislation that is taken to make a change in existing law or adopt new provisions that are advantageous to an individual or to the public is likely to be regarded as falling within the description of remedial or beneficial”. In the circumstances, given that the legislation is ambiguous, I think that it ought to be given a beneficial construction consistent with that arrived at by the Court of Criminal Appeal in R v Hatch (supra) and Walker v The Queen (supra).

[93] This brings me to the question of whether a non-parole period can be fixed in relation to a sentence which is restored only in part. It is clear that an offender who has committed another offence against a law in the Territory punishable by imprisonment during the operational period of the suspended sentence may be dealt with by the Court whilst the order is in force or within the period of two years after the expiry of the operational period: see s 43(1); see also s 43(4a). If the Court’s order suspending the sentence has expired because the operational period has elapsed, nevertheless the Court is empowered not only to restore the whole sentence but perhaps to restore only part of the sentence. If the order suspending the sentence has in fact elapsed it may be thought that there is no difficulty because on one view of s 53(1) the sentence is no longer in suspense. However this may be, I consider that, for the same reasons as apply to the restoration of the full amount of the sentence, the preferable interpretation to be given to the provision is that the Court has a power to fix a non-parole period.

[94] However there may be situations where the Court may wish to restore only part of the sentence but still leave the remainder of the suspended sentence in a state of suspense. Can this be done? Having regard to the fact that the period of a suspended sentence could be quite long, it is not inconceivable that a court might decide to restore only part of the sentence. It is not clear whether the legislature intended that in all circumstances where a sentence is restored only in part that this has put an end to the whole of the order suspending the sentence. It is not necessarily inconsistent with the purposes of the Sentencing Act that in some cases a court might decide to restore only part of the sentence with the intention that after the defendant is released from prison he is still subject to the terms of the suspended sentence which has not yet expired. In those circumstances, should they arise, it is very unlikely that the court would restore a part of the sentence which is longer than for a year in which case no question of parole would ordinarily arise unless the restored sentence was aggregated with another sentence which in total exceeded a year.

[95] The Director of Public Prosecutions submitted that whenever the Court made an order restoring only part of the sentence the balance of a suspended sentence could no longer be ordered to be served. Although at first I thought this was a surprising conclusion in that the balance of the sentence seemed to have disappeared into thin air, I am now inclined to think that the submission of the Director is correct. It seems to me that the purpose of s 43(5)(d) was to enable the Court to take into account the factors that are referred to in s 43(7) namely that it would be unjust to restore the whole of the sentence “in view of all of the circumstances which have arisen since the suspended sentenced was imposed, including the facts of any subsequent offence”. No doubt those circumstances would include the nature of the conditions of the suspended sentence, the nature and gravity of the breach of the conditions, whether the breach amounted to the commission of another offence, the length of time during which the offender observed the conditions, any moral pressures upon the offender to commit the breach as well as other matters. It follows from this that when only a part sentence is restored, the effect of the order is that the balance of the head sentence will never fall to be served, that balance having been treated as having been served in the community. However it is not necessary to reach any final conclusion on this subject as it does not arise in this case and that issue has not been fully argued. I would prefer to deal with that matter should it arise at a later time. For the moment I note that Walker v The Queen is binding authority on single Judges and Magistrates that a non-parole period can be fixed in respect of a sentence which is only restored in part.

[96] I therefore conclude that it was open to the learned sentencing Judge to have imposed a non-parole period calculated from the commencement date of the restored sentence and that the decision which his Honour followed of R v Inkamala is, with respect to this question, wrongly decided and should be overruled. It follows from this that s 53(2) applies in these circumstances.

Re-sentencing

[97] I would direct that the sentences proposed by Angel J commence from 5 February 2006 and fix a non-parole period in respect of the aggregate sentences of six years six months. The learned sentencing Judge had fixed a non-parole period which was, in effect, more than 50 per cent of the total sentence to be served, having regard to the fact that the non-parole period he fixed did not commence to operate until after the restored sentence had been fully served. However, his Honour, having fully restored the balance of the sentence held in suspense fixed a non-parole period in respect of the other sentences he imposed at 50 per cent of those other sentences and in proceeding in that way, it is clear that his Honour intended to fix the earliest possible released date. Having regard to the fact that this is a Crown appeal I do not consider that it is appropriate to fix a new non-parole period in excess of the minimum term required by the Sentencing Act.

 


THOMAS J :

[98] I have had the benefit of reading a draft of the decisions of Angel, Mildren, Riley and Southwood JJ.

[99] I would allow Ground 1 and Ground 3 of the appeal.

Ground 1: Manifestly inadequate

[100] I agree the sentence on Count 1, the offence of intending to cause, caused grievous harm to Paul Ellis (s177(a) of the Criminal Code) is manifestly inadequate.

[101] In re-sentencing the respondent I agree with the head sentence proposed by Angel J of 13 years imprisonment for the totality of the offending. I would impose a non-parole period of 6 years and 6 months. The sentence to be backdated to the 5th February 2006.

Ground 2: Concurrency

[102] I agree with Riley J that there was no error in the approach of the sentencing judge who applied the principle of totality in making the cannabis charge concurrent with the other offences.

Ground 3: Failure to fix a non-parole period

[103] I consider the Northern Territory Court of Criminal Appeal decision in Walker v The Queen (2001) NTSC 69 is correct and should be followed by this Court.

[104] I have also considered the decision of the Court of Appeal in Victoria in R v Hatch [1998] 3 VR 693; 95 A Crim R 46.

[105] I have formed the opinion that s53(1)(b) of the Sentencing Act does not mean the Court is precluded from fixing a non-parole period when the Court wholly restores a fully suspended sentence of imprisonment.

[106] Under the provisions of the Sentencing Act, a person sentenced to a term of imprisonment, for 12 months or longer, is entitled to have consideration given to the fixing of a non-parole period. This should not be taken away in the absence of a clear statement to that effect in the legislation. To this extent I consider the decision in R v Inkamala (2006) NTCCA 11 was not correct and the preferable authority to follow is Walker v The Queen (supra).

RILEY J :

[107] On 2 August 2006, the respondent pleaded guilty to three crimes committed on 4 and 5 February 2006. The first was that on 4 February 2006, with intent to cause grievous harm, he caused grievous harm to Paul Ellis. The second was that one the same date he unlawfully assaulted Jarrah Hawksworth with an offensive weapon causing her bodily harm. The third was that on 5 February 2006 he was in possession of cannabis in a public place. For the offence of causing grievous harm (count 1) he was sentenced to imprisonment for a period of seven years and six months. In relation to the aggravated assault (count 2) he was sentenced to imprisonment for a period of two years and six months to be served concurrently with the sentence imposed for count 1. In relation to the possession of cannabis (count 3) he was sentenced to imprisonment for a period of nine months which was also to be served concurrently with the sentence imposed for count 1. At the same time the respondent was dealt with for breaching the conditions of a suspended sentence imposed upon him on 20 January 2006 in the Court of Summary Jurisdiction and the sentence of imprisonment for 15 months was wholly restored pursuant to the provisions of s 43 of the Sentencing Act. The learned sentencing judge fixed a non-parole period of three years and six months in respect of the sentences imposed by him and declined to set a non-parole period in relation to the restored sentence of 15 months.

[108] The effect of those orders was that the respondent was sentenced to imprisonment for a total period of eight years and six months backdated to commence on 5 February 2006. He was obliged to serve the restored sentence of imprisonment before serving the sentences imposed by his Honour. Therespondent would serve five years’ imprisonment before becoming eligible for parole.

[109] The appellant appeals against the sentences on the primary ground that the sentences in relation to counts 1 and 2 were manifestly inadequate and on the further ground that his Honour failed to fix a non-parole period in respect of the restored sentence.

The circumstances of the offending

[110] The circumstances of the offending were disturbing. They arose out of the breakdown of the relationship between the respondent and his female victim, which began in 2001 and ended in 2005. There was a child of the relationship born in 2003.

[111] During the course of the relationship the respondent had been violent towards the female victim. He had convictions for assaulting her and others. His Honour set out in some detail the violent history of the relationship and then observed:

“Your record of violence against the female victim is disturbing. You have demonstrated a propensity to give in to feelings of jealousy, frustration andanger and to respond with violence against your former partner. You have also demonstrated a liking for using weapons to intimidate the female victim.”

And later:

“It is not uncommon in circumstances where relationships break down for disputes to occur about access to a child and it is not uncommon for those disputes to give rise to feelings of frustration and anger. What is of concern in your case is that you have demonstrated a belief that the cause of the violence has been the conduct of the female victim. While you have a degree of insight into your difficulties, which is reflected in your counsel’s submission that you cannot be confident as to how you will behave in the future when released from prison, there is not even a hint of remorse for what you have done to thefemale victim over a period of years, including your conduct in February 2006 for which I am to sentence you.”

[112] The assaults in February 2006 were upon the female victim and her new partner. The respondent had seen them dancing together at a nightclub and he approached the male victim. A scuffle occurred and the respondent and two people with him were evicted from the nightclub. The friends of the respondent placed him in a taxi and, as the taxi drove away, he called out: “I’m going to kill them”. The respondent went to the residence of his victims and entered through an unlocked door. He armed himself with a baseball bat that belonged to the male victim. He then waited for the couple in the yard. When they arrived home he attacked the male victim with the baseball bat. He repeatedly struck him about the head with considerable force. It was a vicious and extremely violent assault with a weapon. The respondent was saying: “I’m going to kill you. You are a fucking dead man”. When the female victim tried to intervene the respondent struck her with the baseball bat and she fell to the ground. The respondent also struck her right foot with the baseball bat. The assault came to an end when the female victim armed herself with a knife and a neighbour intervened. The respondent then walked away from the premises.

[113] As a consequence of the assault the female victim suffered cuts, grazes and bruising. The male victim suffered what his Honour described as “extremely serious head injuries”. It was necessary to remove a significant portion of his skull and he was placed in a drug-induced coma and maintained on life support. The consequences for the male victim were significant and ongoing. At the time of sentencing it was not known whether he would recover sufficiently from his injuries to resume active duty in his employment as a member of the armed forces. He was, at that time, about 12 months behind in his career and had lost a significant amount of money, all as a consequence of the injuries suffered in the attack.

[114] By any measure this was a serious assault. It was a planned attack where the respondent lay in wait for his victims and attacked them with a baseball bat. It was only through good fortune that the male victim did not die.

[115] The offence relating to the possession of cannabis occurred when the respondent was arrested on 5 February 2006. He had 18.5 grams of cannabis in his possession at the time.

Ground 1 – manifest inadequacy

[116] The principles applicable to a Crown appeal against adequacy of sentence are well settled. In the absence of a specific error by the sentencing judge the sentence must be so manifestly inadequate as to demonstrate that error in point of principle must have occurred. The observations of King CJ in R v Osenkowski (1982) 30 SASR 212 at 213 are apposite:

“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is sodisproportionate to the seriousness of the crime as to shock the public conscience.”

The principles have recently been restated in R v Riley (2006) 161 A Crim R 414 at 419 and 421. They need not be repeated on this occasion.

[117] The submission on behalf of the appellant was that the sentence of imprisonment of seven years and six months in respect of the offence of causing grievous harm to the male victim was so obviously inadequate as to be unreasonable or plainly unjust. It was submitted that, when considered in light of the maximum penalty of life imprisonment, a head sentence of seven and a half years did not properly reflect the seriousness of the offending: Markarian v The Queen (2005) 79 ALJR 1048.

[118] In support of this ground the appellant emphasised matters that had been placed before the learned sentencing judge and which were mentioned by him in the course of his sentencing remarks and which were taken into account by him. It was pointed out that the offending occurred just two weeks after the respondent had been released on a 15 month suspended sentence imposed upon him for violent conduct towards the female victim. The offending occurred in breach of a domestic violence order which, it was correctly submitted, was a significant aggravating factor requiring not only general but personal deterrence and denunciation by the court. The appellant emphasised that this was a planned attack and did not reflect a momentary loss of control. The consequences were intended. The respondent demonstrated no remorse and, as his Honour observed, “there is no truly positive sign that could lead to any confidence that (the respondent has) good prospects of rehabilitation”. The attack upon the male victim was described as “extremely savage” and the seriousness of the injuries suffered by him, and the ongoing consequences for him, were restated. All of those matters reflected observations made by the learned sentencing judge in the course of his sentencing remarks. It could not be said that they were matters that he had overlooked. However it was submitted that in light of those matters the sentence imposed was manifestly inadequate.

[119] The starting point adopted by the learned sentencing judge in respect of the charge of causing grievous harm with intent to cause grievous harm to the male victim was a sentence of imprisonment for nine years. His Honour made allowance for the plea of guilty entered on behalf of the respondent and reduced the sentence to seven years and six months. That is an allowance of approximately 17%. There is no challenge by either party to the appropriateness of that level of discount for the plea of guilty in the circumstances of this case. The issue therefore is whether the starting point of nine years reflected a sentence which was, in all circumstances, manifestly inadequate.

[120] In my opinion the sentence was manifestly inadequate. It was so low as to be “unreasonable or plainly unjust”: Markarian v The Queen (supra at 1055). It was so disproportionate to the seriousness of the crime as to shock the public conscience. I would allow the appeal on this ground.

[121] At the commencement of the hearing the appellant was granted leave to add a ground of appeal to the effect that the sentence imposed in relation to the assault upon the female victim was manifestly inadequate. That contention was not directly addressed in the written submissions nor in the submissions of counsel before us. In my opinion the sentence was comfortably within the range of available dispositions and could not be said to be manifestly inadequate.

Ground 2 – concurrency

[122] A further ground of appeal was added at the commencement of the hearing. It was submitted on behalf of the appellant that the sentence imposed in respect of the cannabis charge should not have been made wholly concurrent with the sentences imposed in relation to the other offences.

[123] The possession of cannabis occurred the day after the assaults. When the police stopped the vehicle in which the respondent was travelling they found 18.5 grams of cannabis wrapped in ten separate foil packages. The respondent acknowledged that the cannabis was his. He had a prior conviction for possession and supply of cannabis in relation to which he had served a period of imprisonment of 28 days. This offence was separate in both time and circumstance from the earlier offending and would normally call for a penalty which was wholly, or at least largely, cumulative upon the penalty imposed for the assaults. The learned sentencing judge imposed a sentence of imprisonment for nine months in relation to that charge. There is no challenge to the adequacy of the term. In imposing the sentence his Honour said that:

“In arriving at the sentences I am about to impose, I have borne in mind the question of totality. I have adjusted the service of the sentences in order to reach a total period to be served that properly reflects the gravity of your total criminal conduct. I have also taken into account the fact that you willnot start serving your non parole period until after you have served the restored sentence of 15 months.”

[124] His Honour then went on to direct that the sentence imposed in relation to the possession of cannabis would be served concurrently with the other sentences. It can be seen from the remarks made by the learned sentencing judge that the basis upon which he ordered concurrency was to achieve a total sentence that reflected the overall criminal conduct of the respondent and avoided the imposition of a crushing sentence. When sentencing for multiple offences it is appropriate to order concurrency to achieve a just result: Director Of Public Prosecutions v Grabovac (1998) 1 VR 664 at 680; Kotis v R

[2005] NTCCA 13 at [43] and [44]. His Honour was obliged to consider the issue of totality and he applied that principle in determining that the sentences should be served concurrently. I see no error in the approach he adopted.

Ground 3 – failure to fix a non-parole period

[125] The third ground of appeal raises the issue of whether it is possible to fix a non-parole period in respect of a restored sentence under the provisions of the Sentencing Act (NT). This ground highlights differences of approach adopted by members of the Court. In R v Inkamala [2006] NTCCA 11 the Court of Criminal Appeal ruled that it is not possible to fix a non-parole period in respect of a restored sentence. In Walker v R [2001] NTSC 69 a differently constituted Full Court concluded that the sentencing court does have the power to fix a non-parole period.

[126] In order to determine the correct approach it is necessary to refer to the relevant provisions of the Sentencing Act and to consider them as part of the legislative scheme provided by that Act.

[127] Section 43 of the Act identifies the powers available to a court when dealing with an offender who has breached the terms of an order suspending a sentence of imprisonment made under s 40 of the Act. Section 43(5) provides that, where a court is satisfied the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment or has breached a condition of the order, the court may:

“(c) subject to subsection (7), restore the sentence or part sentence held in suspense and order the offender to serve it;
(d) restore part of the sentence or part sentence held in suspense and order the offender to serve it;
(e) in the case of a wholly suspended sentence, extend the operational period to a date after the date of the order suspending the sentence;
(ea) in the case of a partially suspended sentence – extend the operational period to a date after the date specified in the order suspending the sentence;
or
(f) make no order with respect to the suspended sentence.”

[128] Section 43(7) then provides:

“(7) A court shall make an order under subsection (5)(c) unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence and, if it is of that opinion, the court shall state itsreasons.”

[129] The fixing of non-parole periods by a sentencing court is governed by ss 53 to 59 of the Sentencing Act. Section 53 is in the following terms:

“ (1) Subject to this section and sections 53A, 54, 55 and 55A, where a court sentences an offender to be imprisoned –
(a) for life; or
(b) for 12 months or longer, that is not suspended in whole or in part,
it shall, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate.
(2) Where a court sentences an offender to be imprisoned in respect of more than one offence, a period fixed under subsection (1) shall be in respect of theaggregate period of imprisonment that the offender is liable to serve under all the sentences then imposed.”

[130] Section 54 requires that, generally, the non-parole period established under s 53(1) shall be not less than 50% of the period of imprisonment that the offender is to serve under the sentence and shall be not less than eight months in duration. In relation to certain offences s 55 and s 55A provide tha the non-parole period shall be not less than 70% of the period of imprisonment that the offender is to serve under the sentence.

[131] In concluding that the court had power to fix a non-parole period in relation to a sentence restored pursuant to s 43 the Full Court in Walker observed that the same issue had been addressed by the Victorian Court of Appeal in the case of R v Hatch (1998) 3 VR 693 where the court dealt with similar provisions in the relevant Victorian legislation. In that case Callaway JA, with whom Batt JA agreed, considered the construction of the Act and concluded that when a court restored a sentence or part-sentence and ordered the offender to serve it, and when the sentence was for 12 months or longer, the court had power to fix a non-parole period. Callaway JA said at 699:

“When an order is made under s 31(5)(a) or (b) (s 43(5)(c) and (d)of the Sentencing Act NT) restoring the term or part of the term held in suspense and ordering the offender to serve it, does the court making the order ‘sentence (the) offender to be imprisoned’ within the meaning of s 11(1) or (2) (s 53(1) and (2) of the Sentencing Act NT)? It might be thought that the answer is No because the court does not so much sentence the offender to be imprisoned as it restores the sentence of imprisonment previously imposed, but the Act is not drafted on that basis. Section 105 (s 113 of the Sentencing Act NT) refers to, among others, a person the subject of an order under s 31 as a ‘person sentenced by a court’ and to an order under s 31 as a ‘sentence’. Section 105(a) speaks of the court as ‘imposing’ that sentence and, for s 15 (s 59 of the Sentencing Act NT) to be effectual, it is also necessary to regard the restoration of a suspended term as the imposition of a sentence. See s 15(2).”

The same approach was adopted by Kearney J in R v Walsh (unreported 12 April 1999, SCNT 9620407).

[132] In Walker Mildren ACJ observed:

“The submission of Mr McDonald QC for the applicant, which was supported by Mr Wild QC for the respondent, was based upon the reasoning of Callaway JA in R v Hatch (supra). The same result can also be arrived at in another way. It may be argued that when a sentence of imprisonment is imposed, the Judge makes a ‘sentencing order’, the terms of which vide s 7 are to ‘record a conviction and order that the offender serve a term of imprisonment …’. Section 53(1), which provides for the fixing of a non-parole period, uses the expression ‘where a court sentences an offender to be imprisoned …’. Clearly the draftsperson had in mind that when a court sentenced an offender to be imprisoned, the court would be making an order that the offender serve a term of imprisonment. The same language is used by s 43(5)(c) and (d) where the expression used is ‘restore the sentence or part-sentence held in suspense and order the offender toserve it’.”

[133] When the matter of Inkamala came before the Court of Criminal Appeal it seems the attention of the court was not drawn to the earlier decision of the Full Court in Walker. In Inkamala the majority sought to distinguish Hatch on the basis that the legislation dealt with by the Victorian court was different from the provisions of the Sentencing Act (NT). In concluding that it was not possible to fix a non-parole period in respect of a restored sentence the majority expressed the view that where a court restores a sentence or part-sentence held in suspense it does not sentence an offender to be imprisoned for the purposes of s 53(1) of the Act. It was stated that the sentence of imprisonment imposed on the offender was the sentence imposed at the time of the original sentencing order. Reference was made to s 40(8) of the Sentencing Act which provides that “A partly suspended sentence of imprisonment shall betaken, for all purposes, to be a sentence of imprisonment for the whole term stated by the court”.

[134] In my view, and subject to a qualification, the approach adopted in Walker and in Hatch is to be preferred. As counsel for the respondent pointed out there are differences between the Northern Territory legislation and the Victorian legislation, however the differences do not affect or detract from the force of the argument. I adopt, with respect, the observations of Callaway JA set out above.

[135] The principal difference between the provisions discussed in Hatch and the provisions of the Sentencing Act (NT) is that the Victorian legislation does not include the words “that is not suspended in whole or in part” that appear in s 53(1)(b) of the Sentencing Act (NT). Those words require a qualification to the approach adopted in Hatch. The effect of the inclusion of those words in s 53(1)(b) is to make it clear that a non-parole period cannot be set when a sentence is suspended in whole or in part. For present purposes the inclusion of those words limits the application of s 53 to circumstances where the whole of the sentence has been restored under the terms of s 43 of the Act.

[136] The issue to be addressed is whether the restoration of a sentence of imprisonment under s 43 is within the ambit of the obligation to fix a non-parole period “where a court sentences an offender to be imprisoned” for the purposes of s 53 of the Act, ie where a court makes a sentencing order. As was observed in Walker, s 7 of the Act describes a “sentencing order” for the purposes of the Act. Such an order is preceded by a finding of guilt and the recording of a conviction and occurs where the court then orders that “the offender serve a term of imprisonment”. In the case of proceedings under s 43 of the Act the finding of guilt and the recording of a conviction have previously occurred. The court then, pursuant to the terms of s 43(5)(c) or (d), orders the offender to “serve” the restored sentence. The offender is, in other words, ordered to serve a term of imprisonment. The language used in the two provisions is consistent.

[137] That the intention of the legislature was to treat the restoration of a sentence under s 43 as being the same as the sentencing of an offender to be imprisoned is reinforced by reference to s 113 of the Act. As was observed in Hatch in relation to the equivalent Victorian provision, s 113 of the Sentencing Act (NT) refers to “a person sentenced by a court in a proceeding for … breach of a sentencing order” and provides that person with a right ofappeal against “sentence” and then goes on to refer to the court “imposing” the sentence.

[138] The fixing of a non-parole period is an integral part of the sentencing options available to a court. It can be seen from s 53 of the Sentencing Act that, apart from some identified exceptions, a non-parole period is required to be fixed where an offender has been sentenced to imprisonment for life or longer than 12 months. A court will only be able to depart from that position where it “considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate”. The starting point is one of fixing a non-parole period. The Act then goes on to provide for minimum non-parole periods in respect of certain offences. By operation of s 57 of the Act, where a court has sentenced an offender to imprisonment for an offence and fixed a non-parole period and before the end of the non-parole period the offender is sentenced by a court to a further term of imprisonment, a new single non-parole period must be fixed. The overall thrust of the Act is that wherever it is appropriate a non-parole period is to be fixed.

[139] In Iddon & Crocker (1987) 32 A Crim R 315 the Court of Criminal Appeal in Victoria said (at 325), in relation to the Victorian Penalties and Sentences Act 1985, that:

“The scheme of the legislation is plain enough. The intention of the legislature is that a minimum term is a benefit to the prisoner and should be fixed in all cases save those which by reason of the nature of the offence and the offender’s antecedents render the case exceptional. If the prisoner is to be denied that to which he is prima facie entitled he should be given some rational reason for the denial. That means he must be told what it is that makes his offence of such a nature and what are the antecedents and what there is about them that is considered sufficient to disallow him the benefits of parole.”
(Citations omitted)

[140] In The Queen v Shrestha (1991) 173 CLR 48 at 67–68 Deane, Dawson and Toohey JJ observed that:

“The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. … the parole system allows for a review of the offender’s case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner’s conduct while in custody, his current attitudes, his present circumstances and theprospects of his rehabilitation in the community if he be released on parole.”

[141] In Shrestha Brennan and McHugh JJ (at 63) made the point that “the release of an offender for the purposes of rehabilitation through conditionalfreedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public”.

[142] The value of parole is recognised in the Sentencing Act. If it had been the intention of the legislation to deny that option to the sentencer in circumstances where a sentence of imprisonment was being restored I would have expected a clearer statement to have been employed. There is nothing in s 43 of the Act to suggest that the fixing of a non-parole period is not available on the restoration of a suspended sentence. The basis of the submission that there is no power rests upon the uncertainty of the words used by the draftsman in providing in s 53 of the Sentencing Act that a non-parole period will be fixed where “a court sentences an offender to be imprisoned”. In my view any uncertainty arising from any failure of the draftsman to adopt clearer language should be resolved in favour of according the court the power to do what the High Court recognised as being in the interests of the offender and of the community and which is consistent with the thrust of the legislation.

[143] In my opinion the parole provisions of the Sentencing Act (NT) apply to the situation where there has been restoration of the whole of a sentence pursuant to the terms of s 43 of the Act.

[144] The learned sentencing judge erred in failing to consider whether to impose a non-parole period in relation to the sentence of imprisonment for 15 months restored by him.

Resentence

[145] I agree with the proposal of Angel J with regard to resentencing which results in an overall term of imprisonment of 13 years. However I would fix a non-parole period in respect of the aggregate sentence of six years and six months. The sentence should be deemed to have commenced on 5 February 2006.

 

SOUTHWOOD J :

Introduction

[146] On 27 July 2006 the respondent was arraigned on the following counts in an indictment dated 14 July 2006:

  1. On 4 February 2006 at Palmerston the respondent, with intent to cause grievous harm, caused grievous harm to Paul Ellis (s 177(a) of the Criminal Code).
  2. On 4 February 2006 at Palmerston the respondent unlawfully assaulted Jarrah Hawksworth and the unlawful assault involved the following circumstances of aggravation: Ms Hawksworth suffered bodily harm; she is a female and the respondent is a male; and Ms Hawksworth was threatened with a baseball bat (s 188(1) & (2)(a),(b) & (m) of the Criminal Code).
  3. On 5 February 2006 at Palmerston the respondent unlawfully possessed cannabis in a public place (s 9(1) & (2)(f)(i) of the Misuse of Drugs Act).

[147] The respondent pleaded guilty to all counts in the indictment. He was convicted of each count and on 2 August 2006 the Supreme Court passed the following sentences of imprisonment on the respondent. For the crime of with intent to cause grievous harm, caused grievous harm (count one) the respondent was sentenced to seven years and six months imprisonment. For the crime of aggravated assault (count two) the respondent was sentenced to two years and six months imprisonment. For the crime of possessing cannabis in a public place (count three) the respondent was sentenced to nine months imprisonment. The sentences of imprisonment were ordered to be served concurrently. A non-parole period of three years and nine months was fixed under s 53(2) of the Sentencing Act.

[148] At the time he was sentenced by the Supreme Court, the respondent was also dealt with under s 43(5) of the Sentencing Act for breaching a suspended sentence of 15 months imprisonment that was passed by the Court of Summary Jurisdiction on 20 January 2006. The Supreme Court wholly restored the suspended sentence of 15 months imprisonment and the respondent was ordered to serve it. The restored sentence was back dated to 5 February 2006. A non-parole period was not fixed. The Supreme Court ordered that three months of the sentence of seven years and six months imprisonment imposed on the respondent for count one was to be served concurrently with the restored sentence.

[149] The effect of the above orders was that the respondent was sentenced to a total period of eight years and six months of imprisonment from 5 February 2006. He was required to serve the 15 months of the restored sentence of imprisonment before serving the non-parole period of three years and nine months. The respondent would become eligible for parole after serving five years in prison.

[150] The Crown appeals against the sentences imposed on the respondent by the Supreme Court. The Crown seeks orders that the court quash the sentences imposed on the respondent for counts one and two of the indictment and substitute such sentences which in the opinion of the court are warranted in law; the court quash the order that the sentence imposed for count three of the indictment be served concurrently with the sentence imposed for count one; and that the court fix a non-parole period in respect of the restored sentence of 15 months imprisonment.

Grounds of appeal

[151] At the start of the hearing of the appeal on 2 March 2007, the Crown was given leave to amend the grounds of appeal. The Crown relies on the following grounds of appeal:

  1. The learned sentencing judge erred by imposing sentences in respect of count one and count two which were manifestly inadequate.
  2. The learned sentencing judge erred by ordering that the sentence of imprisonment in respect of count three be served concurrently with the sentence of imprisonment imposed in respect of count one.
  3. By failing to fix a non-parole period in respect of the restored sentence the learned sentencing judge acted in accordance with the decision of the Court of Criminal Appeal in The Queen v Inkamala [2006] NTCCA 11 but contrary to the earlier decision of the Full Court of the Supreme Court in Walker v R [2001] NTSC 69.

[152] In the event that none of the grounds of appeal is successful the Crown also says that there is an error in the learned sentencing judge’s calculation of the respondent’s sentence which still needs to be corrected. In order to achieve the aim of allowing some concurrency in respect of the head sentence but to fix an effective non-parole period of five years, a non-parole period of four years instead of three years and nine months should have been fixed for counts one, two and three of the indictment dated 14 July 2006.

The issues for determination

[153] There are four principal issues in the appeal. First, is the sentence of seven years and six months imprisonment imposed on the respondent for the crime of with intent to cause grievous harm, caused grievous harm to Mr Ellis, manifestly inadequate? Secondly, is the sentence of two years and six months imprisonment imposed on the respondent for the crime of aggravated assault manifestly inadequate? Thirdly, did the learned sentencing judge err in making an order that the sentence imposed on the respondent for count three be served concurrently with the sentence for count one of the indictment? Fourthly, when a sentencing court restores a suspended sentence or part of a suspended sentence of imprisonment and orders the offender to serve it under s 43(5)(c) or s 43(5)(d) of the Sentencing Act, does the sentencing court have the power to fix a non-parole period under s 53(1) of the Sentencing Act?

Facts

[154] A statement of admitted facts was read by the Crown during the sentencing proceeding in the Supreme Court. Those facts were supplemented by the tender of victim impact statements, the report of Dr Paul Maloney, the respondent’s prior criminal record and counsel for the respondent’s submissions during the sentencing proceeding. The facts are as follows.

[155] The respondent was born in Broome, Western Australia, on 5 July 1975. He is 31 years of age. His father was an Aboriginal Malaysian pearl diver. The respondent’s parents separated when he was very young. He has three full siblings and three half siblings. He was raised by his mother until he was 12 years of age. She was very violent. The respondent was regularly beaten by her. From the age of 12 years he lived with various members of his extended family depending upon their capacity to look after him at the time. He spent most of his time growing up with his grandmother.

[156] After completing primary school in Perth the respondent attended High School in Darwin. He did not do well at school. When he left school he was involved in the construction of a replica of the ship Endeavour and at 18 years of age he obtained employment in the pearl industry in which he worked for eight years. He has not been in fulltime employment for some years.

[157] Since he was 14 years of age the respondent has consumed alcohol and cannabis. At the time of being sentenced he was taking antidepressant medication.

[158] The respondent has a criminal record that extends for three pages. Apart from two convictions for drug offences all of the respondent’s prior convictions involve him behaving in a violent and oppressive manner towards Ms Hawksworth.

[159] From late 2001 to early 2005 when they separated, the respondent lived in a de facto relationship with Ms Hawksworth. They had a child together. Her name is Ciane Hawksworth. She was born on 13 September 2003. After they separated Ms Hawksworth entered into a domestic relationship with Mr Paul Ellis. As the following history reveals the relationship between the respondent and Ms Hawksworth was violent. The learned sentencing judge described therespondent’s pattern of violence against Ms Hawksworth as disturbing.

[160] On 8 March 2002 the respondent assaulted Ms Hawksworth. The facts of that assault are as follows. The respondent had been in Broome. He returned to Darwin from Broome and he visited Ms Hawksworth at the Charles Darwin University where she was residing. He accused her of being with other men and he punched her body and face, he picked up two samurai swords, one in each hand, and waved them about. He hit her across her legs in the calf area with the flat side of one of the swords which caused red marks and bruising. He then grabbed Ms Hawksworth by her hair and dragged her out of the room.

[161] On 8 March 2002 the respondent also assaulted a security person who attempted to stop the respondent assaulting Ms Hawksworth. On 30 August 2002 the respondent was sentenced to three months imprisonment for this offence. The sentence was fully suspended.

[162] On 2 April 2004, both the respondent and Ms Hawksworth were at a residence at The Narrows. The respondent suspected her of being with other men. He punched Ms Hawksworth to her face with his fists. She ran out of the unit and he grabbed her by the hair. She fell backwards onto the ground and he then dragged her along a cement path, holding her by her hair. As a result Ms Hawksworth was taken to hospital. She suffered multiple bruises and grazes to her face and body.

[163] On 20 April 2005 Ms Hawksworth made an application for a restraining order for domestic violence against the respondent under the Domestic Violence Act in the Darwin Court of Summary Jurisdiction. The application was successful and the Court of Summary Jurisdiction made a restraining order against the respondent. The order restrained the respondent from having any contact with Ms Hawksworth until 26 April 2006. The respondent was served with a copy of the restraining order on 30 September 2005.

[164] On 12 July 2005 they were again at the residence at The Narrows. Ms Hawksworth came home from work at about 8.00 pm. The respondent obtained a cross-bow, loaded it with a spear and pointed it at Ms Hawksworth who was then holding their 22 month old daughter. The respondent said, “One of these spears has got your name written on it” and then said, “Keep going cunt. You are going to get this in a minute.” She went downstairs and the respondent began abusing her. Ms Hawksworth got some belongings and her daughter and started to walk out of the unit. The respondent chased her outside and he armed himself with a hockey stick in one hand and a knife in the other. She put her daughter in the motor car and he chased her around the motor car twice. She got into the motor car and the respondent stabbed the front left tyre of the motor car causing it to deflate. Ms Hawksworth got out of the car and walked to a phone box near the Winnellie shops and called the police. She took their daughter with her.

[165] On 13 July 2005 the respondent entered the unit at The Narrows and he tipped water into the back of the television, destroying the television. He then went to the main bedroom where Ms Hawksworth was sleeping with their daughter. She woke up and he said, ‘Why do you do this to me? You are the one that causes all of this, and then you run to the cops.’ The respondent had a knife with a blade approximately 20 cm long in his hand. Ms Hawksworth reached for the telephone to call the police. He grabbed the telephone from her hand and punched her to her face five or six times with a closed fist. He was still holding the knife while he punched her and that caused a cut to the top right side of her head. The respondent grabbed her by the hair and dragged her off the bed and into the hallway and punched her four or five times causing her to lose consciousness. He then left the unit. When Ms Hawksworth awoke her daughter was standing next to her screaming. Ms Hawksworth suffered bruises, the laceration caused by the knife and other abrasions.

[166] On 18 August 2005 the respondent was waiting for Ms Hawksworth at her residence at Moulden when she returned from work. He asked her if she was going to his aunt’s funeral. She did not know whether she was going to go to the funeral or not and he tried to make her go. He picked up a 1.5 kilogram black bar bell weight in his right hand and the screws from the weight with his left hand. He then waved it around in a threatening manner and said, “so are we going?’ He began to count while waiting for an answer from Ms Hawksworth. She grabbed her daughter and ran for the front door. He blocked the door and said, “Go on, I want to see you do it. I’d love to see you chopped up in the grave.” On 19 August 2005 the respondent went to Ms Hawksworth’s home at Moulden and he picked up a rock and smashed the windscreen of her motor car.

[167] On 20 January 2006 the respondent appeared before the Court of Summary Jurisdiction in Darwin and he was dealt with for the offences referred to above. The respondent received a total sentence of imprisonment of 15 months which was fully suspended.

[168] The facts of the crimes which the respondent committed on 4 and 5 February 2006 are as follows. Between 12.00 am and 12.45 am on Saturday 4 February 2006 the respondent, his brother, Camsana Haji-Noor and a friend, Brendan Ninyet, visited the Discovery Nightclub on Mitchell Street in Darwin. Upon entering the nightclub the respondent saw Ms Hawksworth dancing with Mr Ellis on the main dance floor of the nightclub. The respondent approached Ms Hawksworth and said that he wanted to see their daughter. Ms Hawskworth told the respondent that she was engaged to Mr Ellis. The respondent then approached Mr Ellis and a scuffle broke out between them. Security personnel intervened and ejected the respondent, his brother and their friend from the nightclub.

[169] The offender, his brother and their friend remained in the city for a while after being evicted from the nightclub. The respondent was then placedinto a taxi in Mitchell Street by his brother and Mr Ninyet. As the taxi drove off, the respondent yelled out, “I am going to kill them!”

[170] Between 12.54 and 3.41 am on 4 February 2006 the respondent went to the residence of Mr Ellis and Ms Hawksworth at Moulden. The respondent entered their residence through an unlocked rear door and he removed a red wooden baseball bat from one of the bedroom cupboards. He then went outside armed with the baseball bat and waited at the back of the residence for Mr Ellis and Ms Hawksworth to return home.

[171] They arrived home in their motor car between 3.00 am and 3.41 am. Mr Ellis was driving and Ms Hawksworth was in the front passenger seat of the motor car. Mr Ellis drove the motor car into the backyard of the residence. The respondent then approached Mr Ellis while he was still in the motor car and he swung the bat towards Mr Ellis’s head. Mr Ellis got out of the motor car and a fight broke out between the respondent and Mr Ellis. The fight involved the respondent and Mr Ellis rolling on the grass and then getting to their feet and grappling with each other. The respondent said to Mr Ellis, “Come on,come on”, and Mr Ellis lunged at the respondent and punched him twice in the head.

[172] Ms Hawksworth got out of the motor car and went to help Mr Ellis. The respondent then chased both of them around the motor car with the baseball bat. The respondent then struck Mr Ellis to the head a number of times with the baseball bat. Mr Ellis tried to push the respondent away but he was unsuccessful. Mr Ellis fell to the ground with the respondent aiming and striking at his head with the baseball bat.

[173] Ms Hawskworth tried to pull the respondent away from Mr Ellis. The respondent then struck Ms Hawksworth with the baseball bat across her back. She fell to the ground onto her stomach and then rolled onto her back. The respondent then struck Ms Hawksworth with the baseball bat to the right foot. Mr Ellis tried to assist Ms Hawksworth. He attempted to take the baseball bat away from the respondent but the respondent knocked Mr Ellis to the ground. Ms Hawksworth began screaming, “Help! Help! Someone call the police.” She ran down the driveway and continued to scream for help. A neighbour, Ms Michelle McGowan, heard the disturbance and came over to assist them.

[174] The respondent continued to strike Mr Ellis to the head with the baseball bat while he was on the ground. The respondent said, “I am going to kill you! You are a fucking dead man.” Mr Ellis got to his hands and knees and the respondent, having held the baseball bat above his head with both hands, struck Mr Ellis to head with the baseball bat with all of his force. Mr Ellis lost a large amount of blood from the head wound that he suffered as a result of being hit with the baseball bat and he was making gurgling sounds while he was lying on the ground.

[175] Ms McGowan picked up a metal framed dog’s bed and struck the respondent with it and Ms Hawksworth armed herself with a knife from the inside of the house. The respondent stopped attacking Mr Ellis with the baseball bat when he saw that Ms Hawksworth was armed with the knife. Ms McGowan yelled, “Stop!Just stop.” Ms Hawksworth ran to the front of the house and the offender threw the baseball bat at her and then left the area.

[176] As a result of being attacked by the respondent, Ms Hawksworth suffered cuts and grazes to her inner arms, bruising to her lower back and swelling and bruising to her right ankle. As a result of being attacked with the baseball bat, Mr Ellis suffered serious head injuries, including the removal of the whole of the right half of his skull to reduce swelling to the brain. He was placed on life support and into a drug induced coma at the Royal Darwin Hospital. He remained in a coma for 10 days. When Mr Ellis awoke from the coma the whole of the left side of his body was paralysed for a period of time because the right side of his brain was still bleeding. He remained in the Royal Darwin Hospital from 4 February 2006 until 28 February 2006. Mr Ellis was then transferred to the Manunda Ward at Robertson Barracks where he remained until 9 March 2006 when he was sent to the brain injury rehabilitation unit of the Princess Alexandria Hospital in Brisbane where he received speech therapy, occupational therapy and physiotherapy. He remained in their care until 7 April 2006. He was then under his mother’s care for three months. Mr Ellis had to undergo a second surgical procedure while he was in Brisbane. The right side of his skull had to be replaced with titanium plates that required 17 titanium screws. He had to wear a protective helmet until he underwent the second surgical procedure.

[177] Mr Ellis now has no feeling on the right side of his skull and only partial movement to the right side of his face. He has trouble with strength and movement in his left hand which makes it difficult for him to do most day to day things. He remains in the Army but he cannot do physical training with his platoon. He is not allowed to handle weapons because of an involuntary shake. He is about 12 months behind in his career in the Army and he has lost between $40,000 and $70,000 in income because of the injuries he suffered. Mr Ellis has lost the ability to play sport at a high level. He was a prospective Olympic athlete. He played baseball for 15 years with the Queensland Academy of Sport. He made the squad of the last 25 for the 2004 Olympics.

[178] Mr Ellis has also suffered emotionally. Following the attack upon him he experienced four months of nightmares every night and flashbacks of the events.

[179] The learned sentencing judge found that when the respondent armed himself with the baseball bat and lay in wait for Mr Ellis and Ms Hawksworth he had formed the intention to give Mr Ellis a bashing and to hurt him. His Honour found that the respondent formed the intention to cause Mr Ellis grievous harm at some time during the fight which followed the initial attack on Mr Ellis.

[180] At 7.10 pm on Sunday 5 February 2006, the respondent and an associate got into a white Land Rover Defender at Shady Glen Caravan Park. The respondent was in possession of 18.5 grams of cannabis wrapped in 10 separate foil packages which he tucked down the front of his pants. They drove along the Stuart Highway, Bagot Road and McMillan’s Road where they were stopped by the police. The respondent threw the cannabis onto the passenger’s floor pan of the Land Rover Defender. He was arrested at 7.26 pm.

Ground 1 – manifestly inadequate sentences of imprisonment

[181] In my opinion the sentence of seven years and six months imprisonment imposed on the respondent for the crime of with intent to cause grievous harm, caused grievous harm to Paul Ellis was manifestly inadequate: Markarian v The Queen (2005) 79 ALJR 1048 at 1055; The Queen v Stephen Day [2004] NTCCA 2 at par [54] per Mildren J; Cranssen v The King (1936) 55 CLR 509; R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ. I would allow the appeal on this ground.

[182] I have formed my opinion having considered that the offence was committed against the background of the break-up of the relationship between the respondent and Ms Hawksworth, and the respondent’s dysfunctional and violent upbringing. The objective facts of the offending were extremely serious. The maximum penalty for the crime that the offender committed against Mr Ellis is imprisonment for life. The respondent committed the crime against Mr Ellis less than three weeks after the Court of Summary Jurisdiction had sentenced him to a wholly suspended sentence of 15 months imprisonment for crimes of violence. Neither Ms Hawksworth’s behaviour nor Mr Ellis’s behaviour were precipitating factors of the crime committed by the respondent against Mr Ellis. There was no provocation. The respondent targeted Mr Ellis. He set out to assault him. A deliberate choice was made to use violence. The respondent was not out of control and unable to manage himself. He engaged in violence because of its functional value to him, to dominate, coerce and control other people. The offence occurred at night at the victims’ residence. The crime was committed in front of Ms Hawksworth. The respondent armed himself with a dangerous weapon, a wooden baseball bat, and he lay in wait for his victims. The attack upon the victim was premeditated, horrendously violent and sustained. The respondent’s attack upon Mr Ellis would not have stopped but for the intervention of Ms McGowan and Ms Hawksworth arming herself with a knife. The victim sustained dreadful injuries to his head and he remains permanently and significantly disabled.

[183] The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it.

[184] The respondent had lost any entitlement to leniency. The respondent’s prior offending shows he has a dangerous propensity to commit such crimes. He has a committed and entrenched attitude to violence. There were no mitigating circumstances. The respondent showed little, if any, remorse. General deterrence, specific deterrence, retribution and denunciation were the paramount considerations in the exercise of the sentencing discretion.

[185] In my opinion the sentence that was passed on the respondent for the crime of aggravated assault on Ms Hawksworth was within the range of availablesentences. It was not manifestly inadequate. The crime committed by the respondent was nonetheless a serious crime. It was part of a pattern of fundamentally oppressive and coercive behaviour in which the respondent deliberately engaged to dominate and control Ms Hawksworth.

Ground 2 - concurrency

[186] Mr Coates, the Director of Public Prosecutions, submitted that the sentence passed on the respondent for the offence of possess cannabis in a public place should not have been made wholly concurrent with the sentences imposed for counts one and two of the indictment.

[187] This ground of appeal cannot be sustained. There was no error in the approach adopted by the learned sentencing judge. It was necessary for his Honour to have regard to the principle of totality when sentencing the respondent. He did so and in so doing he determined that the sentences should be concurrent in order to arrive at a sentence that was reflective of the offender’s overall criminal conduct. A sentence may be made wholly concurrent in order to achieve a totally just result.

Ground 3 – failure to fix a non-parole period for the restored sentence

[188] The decisions of the Full Court of the Supreme Court and the Court of Criminal Appeal about whether a sentencing court may fix a non-parole period when a sentencing court restores a suspended or partially suspended sentence of imprisonment under s 43 of the Sentencing Act are in conflict.

[189] In Walker v The Queen (2001) NTSC 69, which was a reference to the Full Court of the Supreme Court under s 21 of the Supreme Court Act, Mildren ACJ, with whom the other members of the court agreed, stated:

[1] This is a matter which has been referred to the Full Court pursuant to s 21 of the Supreme Court Act by Angel J. The question which is raised by the reference is whether under s 43(5)(c) or s 43(5)(d) of the Sentencing Act, when a court restores a sentence or part of a sentence which is for a period of twelve months or longer and orders the offender to serve it, the court has the power to fix a non-parole period pursuant to s 53(1) of the Act. In my opinion, that question must be answered "Yes".

[2] The relevant provisions to be considered are s 113, s 53(1), s 43 and s 59 of the Sentencing Act. It is also relevant to consider s 7 which deals with sentencing orders. I do not think it is necessary to go into much detail. Precisely the same question as we have been asked to determine has been answered affirmatively by the Court of Appeal of Victoria in the case of R v Hatch (1998) 3 VR 693; in (1997) 95 A Crim R 46; where Callaway JA with whom Batt JA agreed, considered the relevant provisions of the Victorian Sentencing Act 1991. The comparable provisions of the Victorian Act are in pari materia with the relevant provisions of the Northern Territory Act. In Hatch, their Honours had no doubt, after considering the construction given to the various sections, that when a court restored a sentence or part of a sentence and ordered the offender to serve it, whenever the sentence was for twelve months or longer, the court had the power to fix a non-parole period. We agree with their Honours and note that the same argument was accepted by Kearney J in the case of R v Walsh, unreported, reasons given 12 April 1999. In another case, which was the judgment of my own (R v Dare, unreported, 20 February 1997) I did not have the benefit of argument put to me on that occasion and that case was incorrect and must be overruled.

[3] The submission of Mr McDonald QC for the applicant, which was supported by Mr Wild QC for the respondent, was based upon the reasoning of Callaway JA in R v Hatch, supra. The same result can also be arrived at in another way. It may be argued that when a sentence of imprisonment is imposed, the Judge makes a "sentencing order", the terms of which vide s 7 are to "record a conviction and order that the offender serve a term of imprisonment...". S 53(1), which provides for the fixing of a non-parole period, uses the expression "where a Court sentences an offender to be imprisoned...". Clearly the draftsperson had in mind that when a court sentenced an offender to be imprisoned, the court would be making an order that the offender serve a term of imprisonment. The same language is used by s 43(5)(c) and s 43(5)(d) where the expression used is "restore the sentence or part sentence held in suspense and order the offender to serve it.".

[4] Accordingly, in my opinion, we ought to hold that in the circumstances where, under s 43(5)(c) or s 43(5)(d), a court restores a sentence or part of a sentence which is for a period of twelve months or longer and orders the offender to serve it, the court does have the power to fix a non-parole period, pursuant to s 53(1) of the Sentencing Act. I would order that the matter be remitted to Angel J for further consideration as to whether or not his Honour ought to fix a non-parole period in the circumstances of this case.

[190] The decision of Walker v The Queen (supra) was followed by Riley J in Glenn v Dixon [2005] NTSC 33 and is consistent with the earlier decision of Kearney J in R v Walsh (1999) SCC 9620407.

[191] In The Queen v Inkamala (supra), which was a decision of the Court of Criminal Appeal, Mildren and Thomas JJ, with whom Martin (BR) CJ agreed, stated:

[66] Before proceeding to resentence the respondent it is necessary to consider another matter which was raised by the Court during argument. The learned sentencing judge restored part of the sentence held in suspense under s 43(5)(d) of the Sentencing Act to the extent of one year. His Honour also imposed a sentence of 4 years imprisonment for the offence against s 192(3) of the Criminal Code which he ordered to be in addition to the one year restored, making a total term of 5 years. His Honour then fixed a non-parole period of 4 years and, as we understand it, back-dated the commencement of the 5 year term and of the non-parole period to 21 November 2003 to take into account time already spent in custody.

[67] In our opinion this could not be done. Section 55 (1) of the Act requires the fixing of a non-parole period of 70% of the sentence imposed for the offence against s 192(3) of the Criminal Code. Assuming it is possible to fix a non-parole period in respect of a restored sentence, this would have required a minimum non-parole period of 45.6 months. Alternatively, if, it is not possible to fix a non-parole period in respect of a restored sentence, a minimum non-parole period of 33.6 months commencing from the date of the commencement of the sentence of 4 years for the offence against s 192 (3) was required. It is clear that the learned sentencing judge intended to fix a non-parole period in respect of both the restored sentence and the offence against s 192(3) of the Criminal Code as he fixed a period of 4 years.

[68] In our opinion it is not possible to fix a non-parole period in respect of a restored sentence. The power to fix a non-parole period is to be found in s 53(1) which expressly excludes sentences which are suspended whether in whole or in part: see s 53(1)(b). Further, the power to fix a non-parole period arises under s 53(1) “where a court sentences an offender to be imprisoned.” Where a court restores a sentence or part sentence held in suspense, it does not “sentence an offender to be imprisoned”. The sentence of imprisonment imposed on the offender was the sentence imposed at the time of the original sentencing order: see also s 40(8) which provides that “a partly suspended sentence of imprisonment shall be taken, for all purposes, to be a sentence of imprisonment for the whole term stated by the court.” Counsel for the appellant submitted that s 57(1) applies, but with respect, that subsection applies only to previous sentences where a non-parole period has been fixed, and has no application here. In our opinion, when a court restores a sentence or part sentence, the court commits the prisoner to gaol for the period or part period of the sentence already imposed: cf R v Baird (above) at 117. Counsel for the appellant submitted that the restoration of the suspended sentence amounted to being “sentenced” relying upon the judgment of Callaway JA in H (1997) 95 A Crim R 46 at 52. It is clear that the legislation under consideration in that case is quite different from the provisions of the Sentencing Act (NT). The same might also be said of the legislation being considered in R v Baird. However the provisions of the Sentencing Act (NT) make it clear, for the reasons we have endeavoured to express, that when a court restores a sentence already imposed, it does not “sentence” an offender. This is to be contrasted with a court resentencing a prisoner under s 42(1).

[69] Section 43(6) provides that unless the court otherwise orders, where a court orders an offender to serve a term of imprisonment that has been held in suspense, the term shall be served “immediately” and concurrently with any previously imposed term. There is no specific power under the Sentencing Act to back-date the commencement of a term which has been restored. The power to back-date found in s 63(5) applies only where an “offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment.” In the circumstances of this case, the offence for which the offender was arrested was the offence against s 192(3) of the Code. Arrest for breach of a condition of a suspended sentence is not an arrest for an “offence”

[70] However, we consider that s 43(6) confers a discretion upon a court to order, in a proper case, that the term may be ordered to be served from the date the offender went into custody in respect of the breach or in respect of the date he went into custody for the “offence” which gave rise to the breach. The words “unless the court otherwise orders” confer on the court a wide discretion to make such orders as the circumstances and the justice of the case require. Nevertheless the requirements of s 43(6)(a) and s 43(6)(b) provide the general rule and, as with any discretionary power, some good reason must exist before the general rule can be departed from. In other words the discretion must be exercised judicially[71] It is particularly important to pay regard to these provisions when the sentencer decides to order a suspended sentence to be served, impose a fresh cumulative sentence for another offence and impose a non-parole period, because of the requirements of the Act relating to minimum non-parole periods which can have the effect in some cases, particularly where there is a 70% minimum requirement, of requiring a total sentence very much in excess of 70% of the total of the sentences restored and imposed.

[192] The learned sentencing judge was not referred to the decision of Walker v The Queen (supra) and unsurprisingly he followed the more recent decision of the Court of Criminal Appeal in The Queen v Inkamala (supra). This appeal calls for a resolution of the conflicting decisions. In my opinion the decision of the Full Court of the Supreme Court in Walker v The Queen (supra) is correct and should be applied by this court. The court should adopt an approach that is broadly consistent with the decision of the Victorian Court of Appeal of R v Hatch [1998] 3 VR 693.

[193] Integral to a resolution of the conflict between the decisions of this court is a resolution of the following question - is an order restoring a suspended sentence of imprisonment under s 43(5) of the Sentencing Act a sentence to be imprisoned for the purposes of s 53 of the Sentencing Act? In my opinion, for the following reasons, the answer to the question is yes.

[194] Sentence is not defined in the Sentencing Act. Sentence has a variety of meanings including the judgment or decision of a court in any civil or criminal proceeding. It was used regularly in such a context in ecclesiastical courts. It is still occasionally used in such a context in admiralty jurisdictions. The meaning of the word is not confined to the judicial determination of the punishment to be inflicted on a convicted criminal. Its meaning depends on the context in which it is used: Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 8D per Kirby J; Winsor v Boaden (1953) 90 CLR 345; R v Jones [1929] 1 KB 211; R v Hardy [1946] NZLR 22 at 23; R v Harman [1959] 2 QB 134; Kennedy v Spratt [1972] AC 83; R v Newton [1973] 1 WLR 233; [1973] 1 All ER 758; R v Hayden [1975] 1 WLR 852; R v Carngham (1978) 140 CLR 487; R v Governor of Pentridge; Ex parte Arthur [1979] VR 304 and R v Wright & Pope [1980] VR 41.

[195] The Sentencing Act enables courts to make a range of sentencing orders all of which relate to the punishment of offenders but not all of which are made upon the conviction of an offender. Section 113 of the Sentencing Act recognises that an order of a court that an offender serve a restored sentence of imprisonment is a sentence. The section provides that, “a person sentenced by a court in a proceeding for breach of a sentencing order has a right of appeal against sentence as if the court had immediately before imposing it found the person guilty, or convicted the person, of the offence in respect of which thesentencing order was originally made; and the sentence was a sentence imposed on that finding of guilt or conviction.”

[196] Although a court of its own motion may deal with an offender for breach of a suspended sentence, ordinarily a formal written application is made that an offender be dealt with by a court for breach of a suspended sentence and the court must be satisfied that an offender has breached the suspended sentence before the sentence or a portion of the suspended sentence may be restored. A court makes an adjudication when it decides such applications.

[197] A sentence of up to five years imprisonment may be suspended by a court so an offender may be required to serve a substantial period in prison when a sentence of imprisonment is restored. The purpose of s 53 of the Sentencing Act is to facilitate parole if an offender is ordered to serve more than 12 months in prison. I agree with Riley J for the reasons that he gives that the fixing of a non-parole period and the availability of parole are integral parts of the sentencing options available to a court. It would be most unlikely that the legislature intended to deprive a prisoner of the possible benefit of parole where a court restores a sentence or a portion of a sentence that has been held in suspense.

[198] That it was not the intention of the legislature to deprive an offender of the potential benefit of parole where a court restores a sentence or a portion of a sentence that has been held in suspense is supported by the following presumptions. There is a presumption of activation of the whole of the suspended sentence or of the whole of the suspended part of the sentence upon breach. A court is required to activate the suspended sentence unless it would be unjust to do so, taking into account all the circumstances that have arisen or become known since the suspended sentence was imposed: s 43(7) of the Sentencing Act. There is also a presumption that the activated sentence will be served concurrently with any other sentence served. Subsection 43(6) provides, “where a court orders an offender to serve a term of imprisonment that had been held in suspense, the term shall, unless the court otherwise orders, be served immediately and concurrently with any other term of imprisonment previously imposed on the offender by that or any other court.” An inability to fix a non-parole period would potentially be inconsistent with the presumption of concurrency and the ability to fix a non-parole period would assist upholding the integrity of the system of suspended sentences contemplated by s 43(7) and the effectiveness of suspended sentences as a means of deterring future offenders.

[199] The relevant sentence for the purposes of s 53(1) is the restored sentence that the offender is ordered to serve in prison, that is, regardless of whether it be the whole of the suspended part of the original sentence or only part of the suspended part of the original sentence. So long as the restored sentence that an offender is ordered to serve in prison is greater than 12 months the court may fix a non-parole period. No part of such a sentence is suspended either in whole or part.

Orders

[200] I would make the following orders:

  1. The appeal against the sentence of imprisonment of seven years and six months that was imposed on the respondent for count one on the indictment dated 14 July 2006 is allowed.
  2. The sentence of imprisonment of seven years and six months that was imposed on the respondent for count one on the indictment dated 14 July 2006 is quashed.
  3. The appeal based on ground three of the appeal is allowed

Resentence

[201] I would resentence the respondent as follows. For count one on the indictment dated 14 July 2006 I would impose a sentence of 12 years imprisonment. I would confirm the sentences of imprisonment imposed by the learned sentencing judge for counts two and three on the indictment and order that each of those sentences of imprisonment be served concurrently with the sentence of imprisonment that I would impose for count one on the indictment. I would confirm that the suspended sentence of 15 months imprisonment should be wholly restored and the respondent should be ordered to serve the 15 months of the sentence in prison. I would order that three months of the restored sentence of 15 months imprisonment be served concurrently with the sentence of imprisonment that I would impose on count one of the indictment. That gives a total term of imprisonment of 13 years. Under s 53(2) of the Sentencing Act I would fix a non-parole period of 7 years. I agree with Angel J about the length of the non-parole period.

[202] It is just that only part of the restored sentence of imprisonment be made concurrent because the breach of the suspended sentence was an extremelyserious breach and it was committed less than three weeks after the suspended sentence was imposed on the respondent. In determining the sentence I would
impose I have had regard to the fact that this is a Crown appeal and to the sentencing principles that are applicable in such circumstances.

The Orders of the Court are :

1. The appeal is allowed and the 7 years and 6 month sentence with respect of the intentionally causing grievous harm charge is set aside;
2. The respondent is resentenced to 12 years imprisonment in respect of the intentionally causing grievous harm charge;
3. The appeal from the 2 years and 6 month sentence with respect of the aggravated assault charge is dismissed;
4. The 12 year sentence with respect to the intentionally causing grievous harm charge, the 2 years and 6 month sentence with respect to the aggravated assault charge and the 9 month sentence with respect to the cannabis charge be served concurrently;
5. The respondent is to serve 12 months of the 15 month restored sentence before serving the sentences in 4 above;
6. Fix a non–parole period of 6 years and 6 months, the sentence and non–parole period are back–dated to commence on 5 February 2006.