Idai v Malogorski  NTSC 102
PARTIES: IDAI, Eric
MALOGORSKI, Mark Anthony
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: JA 22 of 2011 (21104209)
DELIVERED: 14 December 2011
HEARING DATE: 28 September 2011
JUDGMENT OF: BARR J
APPEAL FROM: MORRIS SM
APPEAL – Sentencing – totality principle – concurrency/cumulation of sentences – whether s 127(7) Domestic and Family Violence Act imposes a mandatory requirement on court to order term of imprisonment for a DVO offence to be served cumulatively with any other sentence
APPEAL – Sentencing – manifest excess – whether sentences imposed were disproportionate to the objective circumstances of the offending
Domestic & Family Violence Act s 121(6) and (7)
Interpretation Act s 62B
Sentencing Act s 50
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297, followed
Cahyadi v The Queen (2007) 168 A Crim R 41; Hampton v The Queen  NTCCA 5; Hoare v The Queen (1989) 167 CLR 348; Miles v R  NTCA 9; Mill v The Queen (1988) 166 CLR 59; Veen v The Queen (No 2) (1988) 164 CLR 465, considered
Appellant: L Bennett
Respondent: T McNamee
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar1114
Number of pages: 19
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
Idai v Malogorski  NTSC 102
MARK ANTHONY MALOGORSKI
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 14 December 2011)
Appeal against severity of sentence
 On 28 June 2011 the appellant pleaded guilty to and was sentenced in relation to five offences. The offending conduct had occurred on 2 and 3 February 2011. Three of the offences were charged on information and two on complaint. In chronological order, that is, in the order in which the offences were committed, the offences and brief details of offending are as follows:
Date and time
Details of the offence
2 February 2011, late afternoon and evening
Count 2 - Administration to himself of a dangerous drug (cannabis) contrary to s 13 of the Misuse of Drugs Act
2 February 2011, late evening
Count 4 – Contravention of a Domestic Violence Order contrary to s 120(1) of the Domestic and Family Violence Act, constituted by swearing at the victim and calling her a slut.
3 February 2011, just prior to 1.00 am
Count 5 – Contravention of a Domestic Violence Order contrary to s 120(1) of the Domestic and Family Violence Act, constituted by kicking and banging on the bedroom door.
3 February 2011, at 1.00 am
Count 1 - Aggravated assault (male/female) contrary to s 188(2) of the Criminal Code, constituted by pouring dirty bong water over the victim and a short while later tipping flour over her.
3 February 2011, at about
Count 3 - Aggravated assault (male/female) contrary to s 188(2) of the Criminal Code, constituted by squeezing the victim firmly on both cheeks to make her face the appellant.
 The facts relating to the appellant’s offending were read out in the Court of Summary Jurisdiction on 28 June 2011. The facts were supplemented by the tender of a typed précis which set out some additional matters, including the conditions of the Domestic Violence Order (‘DVO’) which had been confirmed in the Court of Summary Jurisdiction on 26 March 2010.
 Relevantly, the DVO restrained the appellant from approaching the victim or being at the victim's residence when under the influence of alcohol or any other intoxicating substance. The DVO also restrained the appellant from remaining in the company of the victim when under the influence of alcohol or any other intoxicating substance. The DVO also restrained the appellant from assaulting or causing personal injury to or threatening to cause personal injury to the victim, and from acting in a provocative manner towards the victim.
 The period of restraint imposed by the DVO was 12 months from 26 March 2010. There was no issue that the DVO applied to the appellant at the time of his offending in February 2011.
 The appellant was almost 41 years old as at February 2011. The magistrate noted that his criminal record included some seven prior breaches of domestic violence orders dating back to 2001. Her Honour noted as well an extensive history of convictions for assaults. Prior to the events in question, the appellant and the victim had been in a relationship for three to four years. Throughout that time there had been acts of violence towards the victim by the appellant.
 In the afternoon of Wednesday 2 February 2011, the appellant acquired some cannabis plant material and returned to the victim’s residence in the Umbakumba community. The appellant admitted to police that he self-administered the cannabis on some eight or nine occasions that afternoon and evening (Count 2). The appellant behaved that evening in an abusive manner towards the victim, accusing her of having had sexual relations with other men and calling her a ‘slut’ (Count 4).
 Just prior to 1.00 am on 3 February 2011, the victim locked herself in the bedroom and the appellant stood at the door kicking and banging and demanding that she open the door (Count 5). Eventually the victim opened the door and sat on a mattress on the floor. The appellant picked up a bong he had used earlier to self-administer cannabis and threw the liquid contents of the bong over the victim. The appellant then left the room and located a tin containing flour. He returned to the room and emptied the flour tin over the victim (Count 1). The appellant then threw the tin down in front of the victim and left the house.
 At about 10.00 am in the morning of 3 February, the appellant returned home and a further argument developed between the appellant and the victim about making tea. The appellant shouted at the victim and became angry that she appeared to be ignoring him. He reached out with his right hand, grabbed her chin, and squeezed her cheeks to force her to face him (Count 3).
 The magistrate convicted the appellant on all counts and sentenced the appellant, starting with the two DVO contraventions, in the following order: on count 4, five months imprisonment; on count 5, five months imprisonment cumulative on the sentence imposed on count 4; on count 1, five months imprisonment cumulative on the sentence imposed on count 5; on count 3, five months imprisonment concurrent with the sentence imposed on count 1. The magistrate fined the appellant $200 on count 2.
 The effective head sentence for all counts was a term of imprisonment of 15 months, with a non parole period of 10 months, to be served cumulatively on the term of imprisonment (due to end on 29 August 2011) the appellant was then serving for another matter.
Issues on appeal
 The appellant appeals to this Court on two grounds:
1. The learned Magistrate erred in her application of the totality principle; and
2. The sentence imposed was manifestly excessive.
 There is no issue on appeal in relation to the fine imposed by the magistrate on count 2.
 For each of the two counts of aggravated assault (counts 1 and 3), the magistrate sentenced the appellant to a term of imprisonment of five months. The appellant does not argue that the sentence of five months on count 1 was manifestly excessive for conduct which the magistrate described as humiliating and disrespectful although not physically painful. The appellant contends that the sentence of five months on count 3 was excessive, but does not seek to make any case on appeal with respect to that sentence because it was ordered to be served wholly concurrently with the sentence on count 1.
 This appeal is directed at the sentences of five months imposed on each of counts 4 and 5 (the DVO contraventions); the cumulation of such sentences on each other and on the concurrent sentences imposed on counts 1 and 3; and the cumulation of all those sentences on the sentence imposed by the Court of Summary Jurisdiction on 8 June 2011 for the DVO contravention referred to in footnote 1.
 Before examining the magistrate’s sentencing reasons for the DVO contraventions, I indicate that, applying general sentencing principles, I would expect that the sentences for these DVO contraventions would be concurrent or substantially concurrent with one another; further, that they would be concurrent or substantially concurrent with the sentence for the first aggravated assault. As can be seen from the brief summary for each offence set out in par  above, the first DVO contravention occurred in the late evening of 2 February and the second just prior to 1.00 am on 3 February. Neither involved physical assault, personal injury or the threat of physical injury to the victim. They could appropriately be seen as facets of the one course of conduct leading up to the aggravated assault which occurred at 1.00 am on 3 February. Whatever might be said about that aggravated assault, it did not involve personal injury or the threat of personal injury to the victim. It would be appropriate to characterise the DVO contraventions and the first aggravated assault together as a continuing course of conduct of bad behaviour directed by the appellant towards the victim over a period of some hours.
 As was observed by Howie J in Cahyadi v The Queen (2007)168 A Crim R 41 at , a decision of the New South Wales Court of Criminal Appeal, there is no general rule that determines whether sentences ought to be imposed concurrently or cumulatively:
“.... The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”
 That view is reflected in the decision of the Northern Territory Court of Criminal Appeal in Hampton v The Queen  NTCCA 5 at  where Riley J, with whom the other members of the Court agreed, said (italic emphasis added):-
“Generally speaking, when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, and subject to the ultimate sentence adequately reflecting the gravity of the total criminal conduct, concurrent sentences are appropriate: Brown v Lynch (1982) 15 NTR 9 at 11-12.”
 The sentences for the offending in the late evening and early morning of 2 and 3 February would thus under general principles have been made concurrent or substantially so. Some cumulation may have been appropriate to reflect the fact that the conduct involved in the DVO contraventions was in breach of court orders.
 By the enactment of s 121(6) and (7) Domestic and Family Violence Act, the legislature has sought to modify general sentencing principles in sentencing for DVO contraventions Those sub-sections read relevantly as follows:
121 Penalty for contravention of DVO – adult
(6) Subsection (7) applies if, when the person is sentenced under this section to serve a term of imprisonment for the offence, the person:
(a) is serving a term of imprisonment for another offence; or
(b) has been sentenced to serve a term of imprisonment for another offence.
(7) Despite section 50 of the Sentencing Act, the court must not direct the term of imprisonment to be served concurrently with the other term of imprisonment mentioned in subsection (6)(a) or (b).
 Relevantly, s 50 of the Sentencing Act provides:
50 Imprisonment to be served concurrently unless otherwise ordered
Unless otherwise provided by this Act or the Court imposing imprisonment otherwise orders, where an offender is:
(a) Serving, or has been sentenced to serve, a term of imprisonment for an offence; and
(b) Sentenced to serve another term of imprisonment for another offence,
The term of imprisonment for the other offence is to be served concurrently with the first offence.
 The magistrate considered that she was “caught” by s 121(7) Domestic and Family Violence Act. She said to counsel:
“I cannot make the two breach of domestic violence orders concurrent with each other, nor concurrent with any other sentence which I’m either going to give him today or that he’s already serving.”
 Neither counsel sought to disabuse the magistrate from the tentative view she had indicated.
 When her Honour proceeded to sentence she said, relevantly:
“I do take into account in imposing the sentence that I am going to impose the principle of totality. However, that principle, while I take it into account in looking at the total sentence, the principle has been circumscribed somewhat because of s 121 of the Domestic and Family Violence Act. That section sets out the maximum penalty in relation to the offences for which you plead guilty under that section, that is 400 penalty units or imprisonment for two years.
In my view .... subs (6) and (7) do apply. Subs (6) says that subs (7) applies if:
‘When the person is sentenced under this section to serve a term of imprisonment for the offence, the person is serving a term of imprisonment for another offence or has been sentenced to serve a term of imprisonment for another offence.’
And subs (7) says:
‘The court must not direct a term of imprisonment to be served concurrently with the other term of imprisonment mentioned in subs (6A) or (B).’
In my view, that applies to all penalties of imprisonment under s 121. Subs (6) says when the person is sentenced, ‘under this section,’ meaning the whole section of 121. That means that I cannot make concurrent either of your domestic violence offences with each other or with any sentence I impose in relation to the aggravated assaults.”
 Her Honour then sentenced the appellant for the domestic violence offences and for the remaining counts, as summarized by me in pars  and  above.
Arguments on appeal Ground 1 - The learned Magistrate erred in her application of the Totality principle
 The appellant’s first contention under this ground of appeal is that the magistrate misconstrued s 121(6) and (7) Domestic and Family Violence Act in the passage extracted in par  above, and came to a wrong conclusion that her discretion to impose or permit concurrent sentences was curtailed by the operation of those subsections. The appellant argues that her Honour thereby erred in failing to properly apply the totality principle to reach a sentence that was just and appropriate in the circumstances.
 There is a misconception in relation to s 50 Sentencing Act evident in the drafting of s 121(7) Domestic and Family Violence Act. The misconception is that terms of imprisonment are cumulative unless the court directs otherwise; that is, it is the court which directs terms of imprisonment to be served concurrently.
 However, the correct position is that s 50 of the Sentencing Act provides that a term of imprisonment imposed on an offender is to be served concurrently with any other sentence unless the court “otherwise orders”. There is no fetter on the court’s discretion to otherwise order and the prima facie position may be displaced by a positive decision: see Miles v R  NTCA 9 at .
 On a literal reading, s 121(7) Domestic and Family Violence Act is ineffectual. A sentencing court could refrain from directing (or even mentioning) concurrency, and thereby not breach the subsection, leaving s 50 Sentencing Act to provide for concurrency in default. Concurrency would come about as a result of the legislative presumption not being displaced, and not as a result of any order or direction by the court.
 The respondent argues that the inept attempt in s 121(7) Domestic and Family Violence Act to require the court not to direct concurrent terms of imprisonment should be construed as a mandatory positive requirement that the court order cumulation of sentences where a person sentenced under s 121 for a DVO contravention is either serving or has been sentenced to serve a term of imprisonment for another offence.
 The appellant argues that under s 121(7) the court is not required to order cumulation of sentences; that the subsection does not direct the court to order cumulation; that the court simply cannot direct concurrency.
 In my judgment the respondent is correct.
 The legislative history of s 121 indicates that the present s 121(6) and (7) were inserted by s 28 Domestic and Family Violence Amendment Act 2010 to remedy perceived shortcomings in the former s 121(6) and (7). The mischief in the former subsections was identified in the Attorney-General’s second reading speech as follows:-
“Sentencing for breach of a DVO: the bill also amends section 121 of the act to clarify the provisions concerned with sentencing persons who have breached a DVO. Under section 121 of the act, an adult who is found guilty of contravening a DVO is liable to a penalty of 400 penalty units ($53 200) or imprisonment for two years. Under section 121(2) of the act, if a person has previously been found guilty of contravening a DVO, they must be sentenced to serve at least seven days imprisonment. If a person found guilty of contravening a DVO is sentenced to a term of imprisonment, section 121 provides that if they are already serving another term of imprisonment for another offence, the court must direct the term of imprisonment to start from the end of the other term of imprisonment. These provisions are specifically stated to apply despite the Sentencing Act.
The aim of section 121 is to ensure that any sentence for a contravention of a DVO is served in addition to other terms of imprisonment. However, s 121 as currently drafted is open to an interpretation that the sentence for contravention of a DVO can be served concurrently with another sentence. The bill amends section 121 in order to ensure that persons who are found guilty of contravening a DVO and who are sentenced to a term of imprisonment, will serve that term of imprisonment. The amendment ensures that if a person is already serving a term of imprisonment, any sentence they receive for contravening a DVO will need to be served and cannot be served concurrently – they will be locked up for longer as a result of their contravention.”
 The legislative intent or purpose was thus made clear. While in some contexts it is true that “the words of a Minister must not be substituted for the text of the law”, the court must look to the operation of the statute according to its terms and to legitimate aids to construction. Under s 62A Interpretation Act a construction that promotes the purpose or object underlying an Act is to be preferred to a construction that does not promote the purpose or object. Under s 62B Interpretation Act, extrinsic material (including a second reading speech) may be considered in determining the meaning of a provision of an Act when “the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is ... unreasonable.”
 The ordinary meaning of s 121(7) leads in my view to a result that is “unreasonable” in that it is contrary to reason or good sense. The ordinary meaning does not remedy the mischief the legislature sought to remedy. The ordinary meaning renders the subsection ineffectual.
 The draftsman has made a mistake in s 121(7) Domestic and Family Violence Act and, in that situation, the joint judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation provides useful guidance. I adopt, with respect, the statement of their Honours extracted below:-
“ But the propriety of departing from the literal interpretation ... extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”
 It is now permitted under s 62B Interpretation Act to discern legislative intent from extrinsic materials, as well as from the statutory provisions themselves.
 In my view, it is appropriate as a matter of statutory construction to make good the draftsman’s mistake in s 121(7) Domestic and Family Violence Act, consistent with the wording otherwise adopted by the draftsman. Accordingly, I construe the subsection to mean that the court must order the term of imprisonment for a DVO offence to be served cumulatively on any other sentence.
 I therefore conclude that the learned Magistrate did not err in law in ordering that the sentences on both the DVO offences had to be cumulative on one another, and on the other sentences imposed by her Honour at the same time (counts 1 and 3), as well as on the sentence imposed on 8 June 2011.
 That conclusion that does conclude the totality ground of appeal. However, before completing my consideration of totality, I turn to consider the manifest excess ground in relation to the sentences of five months imposed on each of the DVO contraventions.
 The appellant’s counsel concedes that the appellant had a bad record for similar offending, but submits that the sentences imposed were disproportionate to the facts of the present offending. The appellant submits (and I accept this submission) that the offending was at the lower end of the scale for offences of this kind and that this was acknowledged by the magistrate.
 A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen. A relevant subsidiary principle is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence, since to do so would be to impose a fresh penalty for past offences: Veen v The Queen (No 2). Antecedent criminal history may be relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law: Veen.
 The magistrate indicated in her sentencing remarks that she allowed a discount of approximately 25 per cent for the appellant’s timely pleas of guilty. That suggests a starting point in each case of a term of imprisonment of just under seven months. In my opinion, the starting point and the sentence derived from it demonstrate manifest excess. The sentence is disproportionate to the gravity of the offending.
 Given that it is necessary to sentence separately for each of the DVO contraventions, I would take as an appropriate starting point in the facts of each case a sentence of four months, which would result in a sentence of three months after allowing for the 25 per cent discount allowed by her Honour (which I adopt).
 However, that still does not conclude the matter. The principle of totality requires that consideration be given to the matters explained by me in par , where I characterised the DVO contraventions and the first aggravated assault together as a continuing course of conduct of bad behaviour directed by the appellant towards the victim over a period of some hours. Although, technically, three offences were committed, it is necessary to consider the total criminality to ensure that the total of the sentences is proportionate to the total offending conduct.
 The High Court in Mill v The Queen (1988) 166 CLR 59 at 62-63 pointed out that where a sentence has to be reduced on account of the application of the totality principle, the reduction can be achieved either by making sentences wholly or partly concurrent or by lowering an individual sentence below that which would otherwise be appropriate in order to reflect the number of sentences being imposed. The former was said by the Court to be the preferred method, but the latter was recognised as legitimate. In my view, the latter is the appropriate way in the present case, given that I have held that the court is required to impose cumulative sentences under s 121(6) and (7) Domestic and Family Violence Act for the DVO contraventions. I would therefore reduce the sentences for each of the DVO contraventions to two months.
 When I now turn to consider the overall sentence, I note that the magistrate facilitated an outcome favourable to the appellant by making the sentences for the two counts of aggravated assault wholly concurrent with one another. There were arguable reasons in the facts of this appeal to make those matters cumulative or partly cumulative on one another because of (1) the differing nature of the offending conduct and (2) the time lapse between the offences. Nonetheless, it would appear the magistrate recognized and was applying the principle of totality in permitting those sentences to be wholly concurrent with one another and I consider that such concurrency was sufficient to compensate for any possible error arising from the cumulation of all sentences on the sentence imposed by the Court of Summary Jurisdiction on 8 June 2011 referred to in par  above.
 I allow the appeal in part. Pursuant to s 177(2)(b) Justices Act I mitigate the penalties imposed by the learned Magistrate for the DVO contraventions. This requires re-sentencing of the appellant, because it will be necessary for me to make an order suspending the sentence or fixing a non-parole period. I therefore proceed in the same order of sentencing followed by her Honour and summarized in par  above, except that I will not refer to the sentence of a fine imposed on count 2:
On count 4, the appellant is sentenced to two months imprisonment to commence at the expiry of the sentence he is currently serving on file 21110410.
On count 5, the appellant is sentenced to two months imprisonment cumulative on the sentence imposed on count 4.
On count 1, the appellant’s sentence of five months imprisonment to commence at the expiry of the sentence on count 5 is affirmed.
On count 3, the appellant's sentence of five months imprisonment concurrent with the sentence on count 1 is affirmed.
 The appellant's effective total sentence is nine months from the expiry of his current sentence on file 21110410.
 I agree with the learned magistrate that a non-parole period would be more appropriate for the appellant than a suspended sentence. I would fix a non-parole period of five months. However, under s 54(2) Sentencing Act, I am not permitted to fix a non-parole period of less than eight months, which is unsatisfactory in that a non-parole period of eight months imposed in respect of a nine-month sentence would undo to a significant extent this Court’s mitigation of the penalties imposed by the magistrate.
 I would therefore propose to order under s 40(1) Sentencing Act that the sentence be suspended after the appellant has served six months. That would leave three months of the sentence held in suspense. Under s 40(6) Sentencing Act, I would fix an operational period of 6 months from the date of the appellant’s release from prison.
 However, because the particular matters in par  and par  were not argued before me on the hearing of the appeal, I give leave to the parties to provide brief written submissions as to the orders I propose.
 The facts of the other matter, in abbreviated form, were provided on the hearing of this appeal: “(The appellant) committed offence 1 x Breach DVO on 30 March 2011 (file 21110410). Appellant was with victim and three other men in Darwin, all intoxicated with alcohol and cannabis. Got off bus. Appellant accused victim of infidelity and threatened to put her in hospital. Victim tried to run away but appellant chased her and dragged her by her hair back and forcibly restrained her. Police attended, saw what he was doing and arrested him. Appellant remanded in custody. On 8 June 2011, appellant pleaded guilty to Breach Domestic Violence Order. Sentenced 5 months backdated to 30 March 2011.”
 Act 47 of 2010, commenced 2 February 2011.
 Delia Lawrie, Attorney General, Second Reading Speech, Domestic and Family Violence Bill 2010, Dec 2010.
 Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.
 Interpretation Act (NT) s 62B(1)(b)(ii).
 (1980-1981) 147 CLR 297 at 321.
 noting that the High Court decision in Cooper Brookes was handed down before the Commonwealth equivalent of s 62A Interpretation Act (NT) was enacted.
 See the decision of Dawson J in Mills v Meeking (1990) 169 CLR 214 at 235, referred to in “Statutory Interpretation in Australia”, 6th ed, DC Pearce & RS Geddes, Butterworths, Sydney, 2006, at par [2.9].
 (1989) 167 CLR 348 at 354.
 (1988) 164 CLR 465 at 477.
 (1988) 164 CLR 465 at 477.