Gaykamangu v Northern Territory Police [2026] NTSC 20

[1] The issues in this appeal are whether the Local Court denied to the appellant procedural fairness in the form of an opportunity to be heard when sentencing him by: (a) failing to inform him of an adverse view the Court held of the matters in a favourable report as to his suitability for supervision; and (b) after the prosecutor made no submissions against a suspended sentence, failing to afford him the opportunity to be heard as to whether to impose a suspended sentence or a non-parole period.

[2] On 31 October 2025, in the Local Court, the appellant pleaded guilty to the following charges:

(a) on 11 June 2025, he unlawfully assaulted his domestic partner ('victim'), with the circumstances of aggravation that the victim suffered harm, and the appellant was male and the victim was female, contrary to s 188 of the Criminal Code (NT);

(b) on 3 August 2025, he unlawfully assaulted the victim, with the circumstances of aggravation that the victim suffered harm, the appellant was male and the victim was female, and the victim was threatened with an offensive weapon, namely a fork;

(c) also on 3 August 2025, he engaged in conduct that resulted in contravention of a domestic violence order, with the circumstance of aggravation that the conduct involved harm or a threat to commit harm to the victim, contrary to ss 120 and 121 of the Domestic and Family Violence Act 2007 (NT); and

(d) also on 3 August 2025, he engaged in conduct that resulted in a breach of the conditions of the grant of bail, contrary to s 37B of the Bail Act 1982 (NT).

[3] On 6 November 2025, the appellant was sentenced to a total sentence of imprisonment for 20 months (i.e., one year and eight months), comprised of imprisonment for:

(a) eight months for the first assault;

(b) 12 months for the second assault;

(c) three months for the breach of domestic violence order, with two months cumulative on the sentence for the second assault;

(d) two months for the breach of bail, with one month cumulative on the sentence for the breach of domestic violence order,

with 12 months of the 15 months for the latter three offences cumulative on the sentence for the first assault.

[4] The Local Court imposed a non-parole period of 10 months.

[5] The facts agreed on the plea relating to the first assault were that the appellant was a 28 year old Indigenous male. The victim was a 24 year old Indigenous female. They had been in an intimate relationship for nine years and had a child together. At 7pm on 11 June 2025, the appellant was at a unit in Karama. He was drinking and became intoxicated. He later became angry at the victim as he wanted to leave the unit with her and she had refused. He pulled at her clothing then punched her three times to her face causing a small laceration to her forehead which immediately began to bleed. He then threw an empty glass rum bottle at her with force, which hit her to her shoulder causing immediate pain and visible bruising. The victim called Police and the appellant left the area. Police later took a statement from the victim and photographed her injuries. The appellant was arrested on 15 June 2025 in the company of the victim.

[6] The facts agreed on the pleas relating to the other offending were that on 15 June 2025, the appellant was served by Police with a domestic violence order protecting the victim from (relevantly) committing domestic violence against her and approaching or remaining in her company when consuming alcohol or when under the influence of alcohol. On 17 June 2025, the appellant was granted bail on conditions (relevantly) that he reside at an address in Darwin city, wear an electronic monitoring device, not purchase, possess or consume alcohol and have no contact with the victim.

[7] At about 1:30am on 3 August 2025, the appellant and the victim were at the victim's home in Karama. The appellant had been drinking rum and was eating dinner with the victim when he got into a verbal argument with her. He became angry at the victim and stabbed her hand and elbow with the fork he was using to eat, causing lacerations, pain and bleeding. He then punched the victim to the side of her face three times, causing pain and swelling to her eye. She ran inside the house, bleeding from her injuries and locked the door, fearing for her safety. The appellant banged on the door, trying to get to the victim inside. A witness called Police. Police arrived at the home at around 2am and saw the appellant running from the back of the house. The victim was taken to the hospital for treatment. The appellant was arrested a short time later. At the Watchhouse, the appellant returned a positive test for alcohol of 0.151g/210L of breath.

[8] Being away from his Darwin residence at that time, being in the company of the victim and being intoxicated were breaches of the appellant's conditions of bail. Being in the company of the victim whilst intoxicated and assaulting her were breaches of the appellant's domestic violence order.

[9] Photographs of the victim's injuries were tendered. The laceration to the victim's elbow was, by my estimation, some 10cm long and 2cm wide.

Guilty pleas, agreed facts and prior criminal history

[10] On 31 October 2025, upon the indication of his counsel, the Local Court took the appellant's pleas to the charges as entered and took the alleged facts as agreed.

[11] The appellant's prior criminal history was admitted by his counsel. That criminal history comprised a conviction for an aggravated assault against a defenceless woman with a weapon, and a conviction for going armed in public, both committed on 3 September 2019. The weapon was a 2.5 metre long spear. For that offending, the appellant was sentenced to a good behaviour bond for 12 months. The appellant also had convictions for unlawfully using a motor vehicle, trespass, property damage and interfering with a vehicle, all committed in 2010, for which he received a six month good behaviour bond.

[12] The appellant's counsel made submissions about the appellant's personal circumstances: his age; his childhood on Elcho Island; his schooling in Darwin; his meeting of the victim, 'his erstwhile partner', who was from Ngukurr; their child who was in Ngukurr with the child's grandmother; his participation in CDP on Elcho Island; his engagement with ceremony there; his time in Darwin where the offending occurred; and his time spent in custody since his arrest for the first offending (being 100 days).

[13] The appellant's counsel submitted that the issue for the appellant is alcohol, conceded that it was an aggravating factor that the appellant was granted conditional liberty to reside at supported accommodation in Darwin, conceded that the appellant breached that bail by drinking, being in company with the victim and not being at the supported accommodation facility. The appellant's counsel relayed his instructions that it had been some time since the appellant had been on Elcho Island, but he has a family network there including his brother who works at the clinic and a house that the appellant could stay in. The appellant's counsel submitted that the prior conviction for a violent offence was committed in 2019 in relation to a worker at a store in Ngukurr in different circumstances to the extant offending and confirmed the appellant had no priors for domestic violence. The appellant's counsel also relayed his instructions that the appellant had done a Young Father's course when in Ngukurr.

[14] The appellant's counsel then submitted as follows:

... [I]n light of all of those things, your Honour, clearly [the appellant] has more time to serve in this matter. In my submission, the question for the court is whether that further time should be suspended on a condition requiring him to relocate to Galiwinku where he won't have the same access to alcohol. He will hopefully be in a more supportive environment.

I can see [sic, concede] that it's against my client that when offered an opportunity on bail in Darwin, he didn't seize that opportunity, but in my submission, Elcho Island might provide a better environment that's ultimately more protective of the community. There is a police application for a domestic violence order. I understand it's non-intox conditions, and clearly, it's open to your Honour to make that order under s 83 of the Domestic and Family Violence Act, for [the appellant]. He accepts that something in his life needs to change, and in my submission, in the circumstances, a report assessing his suitability for supervision in Elcho Island would be appropriate.

[15] The prosecutor agreed with the appellant's submission that alcohol was 'a key undercurrent' in both incidents of offending. The photographs of the victim's injuries were then tendered.

Matters raised by the Court about supervision and the appellant's response

[16] The Local Court observed that Elcho Island is remote, there is a good Corrections team there, but they cannot really supervise people there. The Local Court also observed that there is a good local family violence program on Elcho Island. The Local Court asked if the supervision assessment was pressed. The appellant's counsel replied that it was and that the advantage of supervision was that the appellant would be repatriated directly to Elcho Island and supervision may afford him more structure or at least the possibility of more structure.

[17] The Local Court acceded to the application for an assessment of suitability for supervision, the appellant's residence and any operating family violence program.

[19] The matter resumed on 6 November 2025. The Local Court invited further submissions from the appellant's counsel.

[20] The appellant's counsel referred to a copy of a report which had been provided pursuant to s 103 of the Sentencing Act 1995 (NT).

[21] The report contained the usual indication that the appellant had been interviewed by phone, all conditions relating to supervision had been explained to him and the appellant was able to verbalise his understanding of the conditions and the consequences should he fail to comply. The report referred to the appellant being subject to the bail conditions in 2025, which had been revoked due to the fresh offending. The report referred to the appellant's criminal history. The report said that the appellant had identified alcohol as a contributing factor to the extant offending. The appellant had told the report writer he had been in a relationship with the victim for nine years, he moved to Darwin four months ago (i.e., in June 2025), problems in the relationship began to arise, and he could not remember the first assault on the victim as he was 'too drunk'. As to the second assault, the appellant told the report writer he had drunk a bottle of rum with the victim in contravention of his bail conditions, which led him to commit that assault. He expressed some remorse for his offences and acknowledged his behaviour was unacceptable. He denied that he usually gets violent when intoxicated but acknowledged Darwin as 'a high-risk area' for him. The appellant was unsure about the victim's views as to whether their relationship would continue.

[22] The report stated that Community Corrections had spoken to the victim who confirmed the relationship was likely to continue. She confirmed the trouble began when they moved to Darwin four months ago, which is when 'everything started to change'. The victim said that before living in Darwin, they had lived in Galiwinku, where there were 'less temptations or trouble'. The victim confirmed she was supportive of the appellant living with his brother in Galiwinku. She said that whilst he has been in custody, the appellant had been calling her every day to speak with their daughter, and said they were still needing to have further conversations themselves. The victim said she wanted the appellant to quit consuming alcohol and cannabis.

[23] The report stated that the appellant acknowledged to the report writer that alcohol and cannabis were problematic for him. The appellant said he would stop consuming both, he was willing to comply with conditions prohibiting him from doing so, and he expressed willingness to engage in AOD counselling, which he had not had before. The appellant expressed willingness to complete the men's domestic and family violence program in Galiwinku. The report said a referral had been made for him to that program.

[24] The report said Community Corrections had spoken to the appellant's brother who confirmed that the appellant could reside with him and that he was supportive generally. The report said a condition preventing the appellant from departing Galiwinku without prior permission would assist in his management in the community.

[25] The report referred to the domestic violence order and stated the appellant had confirmed he would comply with it.

[26] The report found the appellant suitable for supervision and recommended various conditions for his management.

[27] In the Local Court, the appellant's counsel submitted that the report is very thorough and useful, the victim has been consulted about 'the proposal' and was supportive of it. The victim recounted how it was only recently in the relationship of nine years that issues had arisen which she attributed to alcohol. Reference was made to the men's program in Galiwinku and the appellant's counsel submitted that each of the ten recommended conditions were appropriate.

[28] The Local Court asked the prosecutor if she was in a position to make submissions. The prosecutor said she had read the report briefly and that she 'concede[d] with the ten conditions, particularly the consumption of alcohol conditions'.

[29] The Local Court then proceeded to make sentencing remarks and sentence.

[30] The Local Court noted that the guilty pleas were 'reasonably timely pleas' made well before the matter was listed for a hearing. The 'allowance' for the plea to the first assault was 'not the full allowance', but the plea to the second offence was an early plea, so the Court would 'make that allowance'.

[31] The Local Court referred to the appellant not being 'youthful' and not having a previous history of domestic violence.

[32] As to the first assault, the Local Court recited the agreed facts, referred to having seen the photographs, referred to the supervision report ('I see the report') and characterised the offending as 'a significant domestic assault by an intoxicated man on his Aboriginal wife'. The Local Court said such offending was '[f]ar too prevalent' and noted the maximum penalty of imprisonment for five years. The Local Court pronounced the sentence of imprisonment for eight months for that offence.

[33] The Local Court said the appellant was then given bail, noted the prior violent offence of assault on a worker at the Ngukurr store as 'male to female, defenceless, weapon'. The Local Court moved to the other offending, but then returned to the prior violent offence, noting that the weapon 'was a blade', but that could not be taken into account as it was not one of the circumstances of aggravation in respect of which the appellant had been charged. I take this to be a reference to the entry in the Information for Courts about this offence, which notes that the Court made a forfeiture order of a 2.5 metre spear. A spear would not ordinarily be described as a 'bladed weapon', but the Local Court expressly stated that factor would not be taken into account as it was not charged.

[34] The Local Court then returned to the extant offending, recited the agreed facts about the domestic violence order and the grant of bail, and noted that the appellant had a prior conviction for assaulting a woman, which was not a domestic assault but was reasonably recent. Of the extant offending, the Local Court said:

A serious assault on his partner, and he's given bail. That's certainly a merciful bail as not everyone would give him, I must say. Nonetheless, given bail. And subsequently he's also been the subject of a domestic violence order. That was on 15 June; the bail on 17 June. The bail was a full non-contact with the victim.

[35] The Local Court recited the agreed facts about the second assault, stated that the matters put were taken into account, and referred to the supervision report ('I see the report') and said it was taken into account. The Local Court then said:

But assaulting his wife in breach of a full non-contact bail condition and in breach of a domestic violence order, having assaulted her some short time previous, using a weapon, is egregious and there is no avoiding that.

I take into account the matters put, the plea, the context, objective seriousness. I see the maximum of five years. I see the matters in the report.

[36] The Local Court pronounced the sentence for the second assault, describing it as a 'protracted domestic assault', of imprisonment for 12 months. The Local Court pronounced the sentence for the aggravated breach of domestic violence order of imprisonment for three months, with two months cumulative, noting the maximum penalty of imprisonment for three years.[1] Noting the maximum penalty of imprisonment for two years for the breach of bail offence, the Local Court pronounced the sentence of imprisonment for two months, with one month cumulative. The total effective sentence in respect of the second set of offending was pronounced of 15 months' imprisonment. The Local Court then said:

As I say, it's an outrage that [the appellant] would do this when on bail, a full non-contact bail. And it measures with the observation by the victim that things have changed, and the way he treats her has changed. He will not - he is beyond the reach of the court, and that's a shame.

I take those matters into account. I maintain a sense of proportionality and I make 12 months, given my observations of that 15 months, cumulative. That's a total sentence of 20 months' imprisonment.

I see the matters in the report. I take them with a grain of salt. The victim ... needs protection from him. He needs to serve more time to get the message.

If you continue to hurt your wife, you will go to gaol for increasingly long periods of time. I'm hoping to impress that upon you. I'm also hoping, by fixing a non-parole period of 10 months, which is the most generous I can, to give you the opportunity to show the Parole Board that you have taken this message on, and that you have changed your ways and you intend to do the right thing and not be violent when released from prison. So I urge that opportunity upon you.

[37] Pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT), the appellant appealed against the sentence on the sole ground that the appellant was denied procedural fairness.

[38] In an appeal of this nature, it must be born in mind that Local Court Judges are working under pressures which mean they are unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[2] Furthermore, an appellate court is entitled to assume that a Local Court Judge has considered all matters which are necessarily implicit in any conclusions reached.[3]

[39] The following principles of law are uncontroversial.

[40] An offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence.[4]

[41] The particular form which procedural fairness dictates may vary from case to case because the content of the requirement of fairness may be affected by what is said and done during the proceedings.[5]

[42] Outside of a criminal trial, there is no requirement that a judge do more than afford a party a reasonable opportunity to present his or her case and, in particular, there is no requirement to point to arguments or evidence that may assist in making the case.[6]

[43] A common basis for demonstrating that procedural unfairness has occurred is where a person has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which the person urges.[7]

Intention to depart from concessions by the prosecutor

[44] A sentencing judge is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor, but where the judge is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give them an opportunity to deal with the matter (by evidence or submissions) will ordinarily be a denial of procedural fairness and a miscarriage of justice.[8] That is because, in the absence of such an indication, it will be reasonable for the offender to conduct their case on the understanding that the concession will be accepted and acted upon by the court.[9]

[45] Contrary to the submissions of the appellant, the reference in the principle above to a 'concession' by the prosecutor is a reference to a concession expressly made, not one implied from silence. While there may be debate about whether the words said by a prosecutor constituted a concession, or what precisely was conceded, I was not referred to any authority which held that a 'concession' may be implied from silence on the part of the prosecutor.

[46] The appellant submitted that, in some circumstances, the court must inform an offender of an adverse view it holds in respect of 'some relevant matter' and thereby give the offender an opportunity to respond to that view. The appellant argued from this proposition that the Local Court was obliged and had failed to inform the appellant of its adverse views about the content of the supervision report and about the appropriateness of a suspended sentence in the circumstances of the case.

[47] The appellant cited two authorities for this proposition.

[48] The first authority cited was The Queen v Li.[10] In that case, the relevant ground of appeal was (at 642) that the sentencing judge had denied procedural fairness to the applicant in aggravating the sentence by referring to facts which were peculiar to the knowledge of the sentencing judge and which he had not raised with counsel for the applicant upon the hearing of the plea. In sentencing, the judge had observed that the drug possession the subject of the offence coincided with a period of increased supply of heroin in the streets whereby the street price decreased considerably which had coincided with an increased usage of the drug by youth. Winneke P (Hedigan AJA and Charles JA agreeing) held (at 643) that it is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he or she has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise. It was said that procedural fairness requires no less.

[49] The other authority cited by the appellant for the proposition referred to above was Chow v Director of Public Prosecutions.[11] In that case, the sentencing judge was held to have exceeded the bounds of permissible judicial questioning, thereby displaying a departure from dispassionate neutrality which justified a conclusion of reasonable apprehension of bias. In so concluding, Kirby P observed (at 606) that the judicial tradition, particularly in criminal proceedings, of manifest neutrality, restraint and impartiality was not damaged by the candid disclosure on the part of a judge of concerns which he or she feels about aspects of the case before the court. His Honour observed that circumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will themselves amount to a departure from the rules of procedural fairness.

[50] His Honour cited two authorities for that proposition. The first was Galea v Galea.[12] That was also a case about judicial intervention giving rise to apprehended bias, in which Kirby ACJ observed (at 279) that it had been suggested in the United States that silence on the part of a judge in a 'non-jury trial' may represent a denial of natural justice, it being argued that it may represent a failure of the judge to expose to the party who may be adversely affected preconceptions, opinions and formulating conclusions so that the party has an opportunity, before judgment, to be heard to correct and to persuade.

[51] The second authority cited by Kirby P in Chow was Anderson v Judges of the District Court of New South Wales.[13] In that case, a judge hearing an appeal against conviction by a self-represented litigant had misdescribed to the appellant the effect of a statutory defence in a way which effectively led the appellant to decline the opportunity to give evidence relating to the defence. The judge then dismissed the appeal on the basis that the prosecution had established a prima facie case. This was held to be an error of law.

[52] I am not persuaded that the two authorities cited by the appellant necessarily sustain the proposition for which they were cited, namely that, in some circumstances, the court must inform an offender of an adverse view it holds in respect of some relevant matter and thereby give the offender an opportunity to respond to that view. Neither authority expressed the proposition that broadly, and in neither was any such proposition part of the ratio decidendi.

[53] The principle of law is more directly stated, but in a more limited way, in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd.[14] In that case, the Full Court of the Federal Court held (at 591) that the subject of a decision is entitled to respond to any adverse conclusion drawn on the material supplied by or known to the subject which is not an obvious and natural evaluation of that material. That statement of the principle was cited in Klewer v National Disability Insurance Agency,[15] which was in turn referred to in the context of the imposition of a sentence in criminal proceedings in Nguyen v The King.[16]

[54] It is important to note the limitation in the principle so stated, which is italicised in the paragraph above. That limitation explains the outcome of the appeal in Nguyen. In that case it was held that there was no denial of procedural fairness by the sentencing judge's refusal to accept the expert opinion relied on by the offender to the effect that there was a causal nexus between the offender's mental condition and the offending. The Court held (at [45]) that the rejection of that opinion was obviously open on the known material. That was because the expert opinion was founded on the speculative assumption that the mental condition was present at the time of the offending when there was no evidence to found that assumption.

[55] The principle has also been expressed, in the context of a rejection by a sentencing judge of evidence relied on by an offender to establish facts mitigating his moral culpability for the offending, in O'Neil-Shaw v The Queen[17] as follows:

...[T]he factual basis [upon which a sentence is imposed] should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, [the sentencing judge] was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course. [emphasis added]

[56] In the next paragraph, Basten JA said it is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response, and where there has been no cross-examination of witnesses to contest their evidence, a judge should in general abstain from making adverse findings about parties and witnesses.

[57] In support of the proposition put by the appellant, he relied upon the decisions of this Court in Webb v Winzar[18] and Wayne v Cornford.[19]

[58] In Wayne v Cornford, the appellant's counsel had submitted to the sentencing court that the appellant had the capacity to pay a fine in relation to the offending. In sentencing, the sentencing court was not persuaded that the appellant had the capacity to pay a fine in excess of $2,000 (that being the mandatory minimum fine payable) and had ordered the appellant to serve a term of imprisonment. Kelly J held (at [21]) that it was a denial of procedural fairness to reject the contention that the appellant had capacity to pay a fine without informing the appellant's counsel that he intended to do so and affording the appellant the opportunity to adduce evidence in support of the contention.

[59] In Webb v Winzar, the appellant's counsel had submitted to the sentencing court that the appellant's only real prospects for employment were in Alice Springs, which offered the temptations of alcohol and engaging in criminal behaviour with other young men. The sentencing court had rejected the premise that Alice Springs was the only place the appellant could get reasonable work, meaning he had to stay in Alice Springs where he was subject to those temptations, saying that no evidence had been put before the court about efforts he had made to get a job in Alice Springs. Prior to the disposition, no issue was taken by the prosecution signalling that these matters were disputed and there was no indication until the sentencing remarks that the court did not accept or took issue with the submission. Blokland J held (at [29]) that when unchallenged material in relation to a mitigating factor is not to be accepted, the sentencing judge is required to inform the offender or their counsel of their provisional view in order to provide them with an opportunity to address the matter, usually by providing evidence.

[60] No authority is cited in Wayne v Cornford or Webb v Winzar for the application of the principle to a submission from the bar table, as opposed to evidence before the court which is relied on by the offender. Further, no reference is made in those cases to the limitations upon the principle referred to in the authorities cited above. Research indicates that neither case has since been cited for the principle as expressed in them.

[61] In this case, it is unnecessary to express my views as to whether, or when, the principle extends to submissions about matters of unproved fact from the bar table because this case concerns whether the sentencing court was obliged, in the circumstances, to inform the appellant of the adverse views ultimately taken about the content of a report ordered by and provided to the sentencing court, to which the court was required by statute to have regard before imposing a sentence that required an offender to be supervised.

[62] On the basis of the authorities referred to above, I consider that proper procedure dictates that a sentencing judge should inform the offender of any adverse conclusion the sentencing court may draw in sentencing which would not obviously be open on the material known to the offender, including a court ordered report such as a report under s 103 of the Sentencing Act. Further, before rejecting or failing to act on evidence that is not challenged or disputed by the prosecution, and is not inherently implausible, the sentencing judge should inform the offender that he or she intends to take that course.

[63] To that may be added the uncontroversial principle set out above that where a sentencing judge is minded not to act on a concession made by the prosecution, he or she should inform the offender of that inclination.

[64] The obligation to inform is to permit the offender to be heard about these matters before the sentence is passed.

[65] It is uncontroversial that the key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process, with the concern of the law being to avoid practical, and not merely theoretical, injustice.[20]

[66] Before the Local Court, the parties were agreed that a sentence to imprisonment was the appropriate sentencing disposition. The issue was how that sentence to imprisonment was to be served.

[67] As regards a sentence to imprisonment, and leaving aside offending to which mandatory sentencing provisions apply, the options for a court under the Sentencing Act 1995 (NT), which are found in Part 3, Div 5, headed 'Custodial orders', are:

(a) if the term of imprisonment is not more than five years, record a conviction and order that the term of imprisonment is suspended wholly or partly, and which may be subject to such conditions as the court thinks fit (ss 7(g) and 40);

(b) record a conviction and make an intensive community correction order for the offender, which may not exceed a period of two years from the date of the order, is subject to various 'statutory conditions' and may be subject to other conditions which the court considers appropriate (ss 7(h), 45, 46, 47, 48); or

(c) subject to various other provisions, if the term of imprisonment is for life or 12 months or longer and is not suspended in whole or part, fix a period during which the offender is not eligible to be released on parole, unless the fixing of such a period is considered by the court to be inappropriate (ss 7(k), 53).

[68] It is well established that, in respect of a sentence to imprisonment for five years or less, a sentencing judge has a wide discretion when deciding whether to fix a non-parole period or to suspend a sentence.[21]

[69] In Whitehurst v The Queen,[22] Riley CJ (Mildren and Martin JJ agreeing) held (at [24]) that the decision to fix a non-parole period or grant a suspended sentence may give rise to considerations of parity with other offenders, but the issue is one of what is appropriate for the particular offender then before the court in the particular circumstances of both the offender and the offending.

[70] His Honour held (at [25]) that the dual purposes of parole are to lessen the burden of punishment upon prisoners, and to provide for their earlier release from gaol in those cases which merit it and to provide for the rehabilitation under supervision of the released prisoner. Further, 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 the sentence should actually be served in custody. Further (at [26]), the parole system provides an incentive for prisoners to behave whilst in prison and encourages prisoners to actively engage in rehabilitation.

[71] I pause here to note that these observations are consistent with the rejection in Namundja v Bott[23] of the proposition that a suspended sentence with supervision is more rehabilitative, and thus offers greater community protection, than a sentence with a non-parole period.

[72] In Whitehurst, Riley CJ held (at [28]) that in choosing whether to proceed by way of a suspended sentence or a non-parole period, the sentencing judge must consider many things, including any relevant legislative provisions, the nature of the offending, the minimum period of imprisonment which must be actually served to reflect the seriousness of the offending, and the personal circumstances of the offender including any prospects for rehabilitation. Consideration of the latter two factors is likely to involve determining how any prospects for rehabilitation may be addressed and enhanced; whether there is a need for supervision and, if so, the nature of that supervision; the existence of, and the nature of, any support mechanisms available to the offender in the community; the identification of impediments and risks to rehabilitation; and so on.

[73] Further (at [29]), the question of whether to impose a non-parole period or to suspend a sentence must be answered in light of all of the circumstances surrounding both the offence and the offender, and there is no expectation that for a particular type of offence a suspended sentence would result.

[74] At the time of the decision in Whitehurst, the sentencing option of an intensive community correction order was not available.[24] The purpose of an intensive community correction order is to provide for an offender to serve a term of imprisonment in the community and, in doing so: (a) ensure that a person who commits an offence is held accountable; and (b) address the personal factors that contribute to the offender's criminal behaviour (s 44, Sentencing Act).

[75] An intensive community correction order does not involve a suspension of a term of imprisonment; rather, it is service of a sentence of a term of imprisonment, and 'full-time' service of it.[25] That said, imprisonment under an intensive community correction order (even with a home detention condition) is less onerous and punitive, and therefore more lenient, than imprisonment in a correctional facility.[26]

[76] In considering the three sentencing options relating to a sentence of imprisonment, the sentencing court must determine the appropriate term of the sentence without regard to how it is to be served.[27] As Riley CJ held in Whitehurst, the first task is to impose a sentence which is appropriate to the offending in light of all relevant circumstances of offence and offender, which I take to be a reference to both the nature of the sentence (a term of imprisonment) and its term. An intensive community correction order is unavailable in circumstances where the duration of the head sentence required is greater than two years' imprisonment.[28]

[77] If the term of the sentence of imprisonment does not rule out a suspended sentence (over five years), an intensive community correction order (over two years) or a non-parole period (under 12 months), then the sentencing court has those three options available and must decide which to impose. The same considerations apply to those three options as were referred to by Riley CJ in Whitehurst.[29]

[78] In Veness v The Queen,[30] the Court of Criminal Appeal held (at [69]) that s 103 of the Sentencing Act requires only that before imposing a sentence that places the offender under the supervision of a probation and parole officer, the sentencing court must have regard to a report of the Commissioner of Correctional Services as to the offender's suitability for supervision. Courts in this jurisdiction frequently order reports under that section at the behest of counsel for the accused. To do so is not necessarily an indication that the sentencing court will impose either an order suspending the sentence or a sentence to imprisonment of five years or less.

[79] In Yinarrarra v Heath,[31] Grant CJ made similar observations (at [12]-[13]), holding that to order a report at the behest of counsel for the accused is not an indication that the sentencing court will impose, or is actively considering the imposition of, an order requiring supervision (and/or suspending sentence). Further, the provision of the supervision assessment does not direct or otherwise fetter the exercise of the judicial function, and the sentencing court may decline to make an order involving supervision even if the accused is assessed as suitable for that purpose, or may make an order involving supervision even if the accused is unsuitable. His Honour held that the fact that the sentencing judge acceded to the appellant's request for an order for a s 103 report provided no indication that the sentencing judge considered an order suspending sentence subject to supervision as an appropriate disposition.

[80] In Veness, the Court held (at [70]) that the sentencing judge and both counsel were aware that the appropriate length of the sentence was in issue. The appellant's counsel had sought a partially suspended sentence and the Crown contended that a sentence of less than five years' imprisonment was not appropriate. The Court found that after the s 103 report was received, the appellant's counsel understood he would be required in final submissions to persuade the sentencing judge to sentence in a manner allowing the sentence to be suspended. The sentencing judge told the prosecutor he did not need to hear submissions about the report, which the Court held was a clear indication that the sentencing judge was not inclined to make an order suspending sentence and that the sentence would not necessarily be of five years or less. After the prosecutor made submissions, the appellant's counsel was given a further opportunity to make submissions on any matter arising, but did not avail himself of the opportunity. There was thus no denial of procedural fairness.

[81] In Cubillo v Andreou,[32] Barr J dismissed an appeal against a sentence to imprisonment with a non-parole period which asserted the sentencing judge had denied procedural fairness to the appellant by imposing a non-parole period without notice and without seeking submissions from either party. His Honour held (at [11]) that the sentencing proceedings were conducted by the parties on the basis that the fixing of a non-parole period was 'on the cards' because the offending was serious, the appellant had a relevant criminal history in terms of like offending, and the appellant had a history of breach of court orders, whether bail, a good behaviour bond or suspended sentences. The appellant had also begun re-offending only weeks after he had been sentenced to a suspended sentence for similar but less serious offending. Barr J held that the fixing of a non-parole period was foreseeable, indeed an obvious and arguably probable outcome. Further (at [12]), the prosecutor had expressly submitted to the sentencing judge that a non-parole period would be within range. The appellant's counsel had then made submissions addressing why a suspended sentence would be in range, without making any submissions against a non-parole period. Barr J held (at [14]-[15]) as follows:

The [sentencing] court's duty was to give both the appellant and the respondent a reasonable opportunity to present their respective cases. The court was not under some general duty to specifically forewarn the appellant of the possibility of a non-parole period being fixed. In any sentencing exercise, there is a risk of an adverse finding against an offender, or an adverse outcome to an offender, arising from a range of relevant factors. The onus is on counsel to address any matter or circumstances which he or she considers requires particular attention in the course of the sentencing submissions. The fact that the judge ordered an assessment pursuant to s 103 of the Sentencing Act ... does not change the principle.

... [The sentencing court] was entitled to assume that counsel for the appellant: (1) was fully aware of the 'suspended sentence vs non-parole period' issue; and (2) would have addressed all relevant matters to the extent that he considered necessary and appropriate.

Were the dictates of proper procedure departed from?

Failure to inform the appellant of the intention to impose a non-parole period

[82] The appellant argued that the Local Court's failure to inform the appellant of its intention to impose a non-parole period rather than a suspended sentence was a denial of procedural fairness.

[83] When this matter was first before the Local Court, the appellant's counsel conceded that a sentence of imprisonment longer than the period the appellant had then spent in custody was warranted by the offending. The appellant's counsel submitted that the question for the Court was whether that time should be suspended.

[84] Counsel must be taken to be and was patently aware of, as Barr J put it in Cubillo, 'the suspended sentence vs non-parole period issue', which might now be expressed as 'the suspended sentence vs intensive community correction order vs non-parole period issue', and the foreseeable possibility that the Local Court would, adversely to the appellant, impose a non-parole period.

[85] On that occasion, counsel for the appellant made submissions to the Local Court which acknowledged that the appellant had breached the conditions of bail and the domestic violence order, which occurred some weeks after the appellant had been granted bail in relation to the first assault against the victim, and made submissions in support of a suspended sentence which would permit the appellant to serve the sentence in the more supportive environment of Elcho Island, so as ultimately to protect the community. Counsel acknowledged the appellant's single prior conviction for violence, highlighting that that was not an instance of domestic violence and that the appellant had no priors for domestic violence. In response to the Local Court's comment that offenders cannot really be supervised on Elcho Island, counsel for the appellant submitted that the advantage of supervision would be that the appellant could be repatriated directly to Elcho Island, and it could afford the appellant at least the possibility of more structure.

[86] All of those submissions were directed, not only to persuading the Local Court to order a supervision report, but also to persuading the Local Court that a suspended sentence was an appropriate disposition. Counsel for the appellant had the opportunity on that occasion, and took it, to put whatever submissions he wished to make about the ultimate disposition of the matter, specifically whether the Court should impose a suspended sentence, an intensive community correction order or a non-parole period.

[87] On that occasion, the prosecutor did not state that the imposition of a non-parole period was outside the range of appropriate dispositions. The prosecutor did not demur from anything put on behalf of the appellant and concurred with the appellant's submission that alcohol was a key factor in the offending. However, that cannot be treated as a concession that a suspended sentence was the appropriate disposition in all the circumstances of the case. No such concession was expressed. The prosecutor's neutral stance did not bind the Local Court and did not remove the foreseeable possibility that the Local Court would, adversely to the appellant, impose a non-parole period.

[88] The Local Court then ordered a supervision report. That too did not remove the foreseeable possibility that the Local Court would impose a non-parole period.

[89] On the second occasion, the supervision report had been received, the appellant had been found suitable for supervision and the report's content was generally favourable to the appellant. Again, that did not remove the foreseeable possibility of the imposition of a non-parole period.

[90] Counsel for the appellant then made further submissions as to the contents of the supervision report, which included a response to the concern expressed by the Local Court on the first occasion about the availability of a family violence program in Galiwinku. Again, the obvious purpose of those submissions was to persuade the Local Court to impose a suspended sentence. Counsel for the appellant chose to make such submissions by focussing on the positive content of the supervision report, no doubt because he had already previously addressed the Court as to why a suspended sentence (rather than a non-parole period) was the better outcome. At that time, the appellant's counsel could, if he chose, have made further submissions about the appropriateness of a suspended sentence over a non-parole period or, indeed, about the alternative disposition of an intensive community correction order.

[91] I do not accept that the Local Court was under an obligation to inform the appellant, through his counsel, of any inclination it then had to impose a non-parole period. At this point, nothing had removed the foreseeable possibility of a non-parole period being imposed.

[92] Then followed the prosecutor's statement that she had read the supervision report briefly and she 'concede[d] with the ten conditions', particularly the condition prohibiting consumption of alcohol.

[93] The appellant argued that this was a concession by the prosecution. Some caution is required here. It would have been inconsistent with the prosecutor's duty of objectivity and impartiality to submit that the appropriate disposition in the circumstances was a suspended sentence. The only proper concession would have been that the imposition of a non-parole period was outside the range of appropriate sentences. The prosecutor's words cannot sensibly be so construed. In essence, the prosecutor maintained the neutral stance adopted on the previous occasion as to the 'suspended sentence vs non-parole period issue'. As such, it did not remove the foreseeable possibility of a non-parole period being imposed.

[94] It follows that there was no denial of procedural fairness by a failure to inform the appellant of the intention to impose a non-parole period.

Failure to inform of an adverse view of the matters in the supervision report

[95] The appellant argued that the Local Court's failure to inform the appellant of its adverse views regarding the content of the supervision report was a denial of procedural fairness.

[96] The first adverse view identified by the appellant was the Local Court's determination to 'take [the matters in the report] with a grain of salt'. It was argued that this should be construed as a rejection of the truth of the entire contents of the report, including the appellant's expressions of remorse, the victim's expression of her views, that alcohol was a criminogenic factor for the appellant, that AOD counselling and a family violence program were available and that the appellant was willing to comply with the conditions of a suspended sentence. Alternatively, it was argued that this should be construed as confirmation that the Local Court had placed less weight upon the contents of the report than they deserved.

[97] I do not accept that the Local Court's determination in this respect should be construed as a determination to reject the truth of everything in the appellant's favour referred to in the report. It was immediately followed by reference to the victim and the need to protect her from the appellant. Nor do I accept that the Local Court's determination should be construed as a determination to entirely disregard the views of the victim as expressed in the report.

[98] In that context, I construe what was said as a determination to place less weight upon the victim's statements to the report writer that the trouble in the relationship began when they moved to Darwin, with its implication that if the appellant were to be released to Galiwinku there would be no need to protect the victim from the appellant. To my mind, appreciating that the relationship between the appellant and the victim was ongoing, and bearing in mind that the appellant had twice assaulted the victim, the Local Court was rejecting the implication that, if released to Galiwinku, there was no need to protect the victim from the appellant. I note that the victim told the report writer that there were less temptations or trouble in Galiwinku, not that there were none.

[99] The appellant argued that giving less weight to the matters recorded in the supervision report, without informing the appellant of the intention to do so, was a denial of procedural fairness. The difficulty with that submission is that the weight to be given to relevant factors that a decision maker is bound to take into account is generally within the discretion of the decision maker.[33] The appellant did not cite any authority in which a failure to inform of an intention to give less weight to a relevant factor in decision making was a denial of procedural fairness.

[100] Contrary to the appellant's submissions, this is not a case like Carl because in that case the prosecutor had expressly conceded that the evidence relied on by the appellant suggested he was genuinely remorseful, but the sentencing court had, without notice to the parties, found that the appellant's remorse was 'somewhat limited' and said it was 'troubling' that he had not given evidence. This meant 'both sides would have learned for the first time when sentence was imposed that [the court] had departed from a common position as to remorse'.[34] Carl was not a case where the sentencing court gave less weight to a relevant factor without notice to the offender; it was a case where the sentencing court, without notice to the offender, made an adverse factual finding which was contrary to the prosecutor's concession about what the evidence relied on by the appellant established.

[101] The second adverse view identified by the appellant was the Local Court's determination that the appellant was 'beyond the reach of the court'. It was argued that this should be construed as a determination that the appellant had 'zero' prospects of rehabilitation and would not comply with the court's orders imposing conditions on a suspended sentence.

[102] I do not accept that the Local Court's determination was to the effect that the appellant had zero prospects of rehabilitation. The imposition of a non-parole period is inconsistent with such a conclusion. As set out in paragraph [70] above, the purpose of a non-parole period includes to provide for the rehabilitation under supervision of the released prisoner and 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 the sentence should actually be served in custody.

[103] I consider that the Local Court's determination that the appellant was 'beyond the reach of the court' is a finding that the appellant would, as at the date of sentencing, be unable to comply with the conditions of a suspended sentence, despite his statements that he was willing to do so. That is a finding clearly open on the agreed facts that the appellant associated with and assaulted the victim in breach of the conditions of his bail, as well as the domestic violence order, which had been imposed only weeks before. The appellant's statements, as recorded in the report, that he was willing to and would comply with any conditions did not address his capacity to do so, or the likelihood that he would. These adverse conclusions were patently foreseeable given the facts of the offending, which were matters known to the appellant. These facts were addressed by counsel for the appellant on the first occasion that the matter was before the Local Court. It was also open to the appellant's counsel to address them again on the second occasion. It cannot be said that the appellant was denied procedural fairness because the Local Court failed to inform the appellant that such conclusions might be drawn.

[104] The third adverse view identified by the appellant was the Local Court's determination that the appellant needed to 'serve more time to get the message'. It was argued that if the appellant had been informed about that potential adverse conclusion, submissions would have been made about the legislative intention behind the repeal of much of the mandatory sentencing regime, which included that incarceration does not operate as a deterrent and does not rehabilitate offending behaviours.[35]

[105] The first response to that submission is that the appellant's counsel had and took the opportunity to address this potential adverse conclusion on the first occasion the matter was before the Local Court. It was part of 'the suspended sentence vs intensive community correction order vs non-parole period issue', and the foreseeable possibility that the Local Court would, adversely to the appellant, impose a non-parole period.

[106] The second response to that submission is that the legislative intention behind the mandatory sentencing reforms effected by the Sentencing and Other Legislation Amendment Act 2022 (NT) is not a materially relevant matter for consideration when exercising the sentencing discretion, unless there is some issue as to the proper construction of the provisions of the Sentencing Act, particularly those provisions introduced or amended by that Act.[36] There was no issue about the construction or application of any such provision in the sentencing exercise before the Local Court.

[107] The third response to that submission is that it was essentially to the effect that the appellant had no opportunity to argue that a suspended sentence or an intensive community correction order would have offered the appellant a greater opportunity for rehabilitation than a non-parole period. This was the nub of the submissions put on the appellant's behalf on the first occasion the matter was before the Local Court, demonstrating that the appellant did have the opportunity to put such submissions, and took it.

[108] The appellant argued that the prosecutor's statement that the ten conditions mentioned in the report were appropriate and/or the prosecutor's failure to say anything else was a concession that the contents of the report were accurate and not disputed, with the consequence that it was incumbent on the Local Court to inform the appellant of its intention to depart from any of its contents.

[109] I cannot accept that submission. First, the prosecutor's statement was not expressed as a concession that the contents of the report were accurate and not disputed. My interpretation of the statement is to the effect that, if the Court was minded to impose a suspended sentence, the ten conditions referred to in the report are appropriate.

[110] Secondly, even if it were accepted to be a concession that the contents of the report were accurate, that would simply be a concession that the report writer has accurately reported facts within their knowledge (such as the availability of a family violence program in Galiwinku) and has accurately recorded what was said to them by the appellant and the victim. As already indicated above, properly understood, the weight attributed by the Local Court to the matters in the supervision report, and the adverse determinations referred to, are not demonstrative of a failure to afford procedural fairness.

[111] The appellant submitted that in a busy court such as the Local Court, counsel cannot be expected to make 'fulsome submissions'. The thrust of the submission appeared to be that in those circumstances, the fact that there is no demur by the prosecutor to material relied on by the offender or to a submission made by the offender takes on greater significance, requiring the Local Court to inform an offender of a potential adverse finding or outcome to the contrary.

[112] I disagree. As Barr J observed in Cubillo, in any sentencing exercise, there is a risk of an adverse finding against an offender, or an adverse outcome to an offender and the onus is on counsel to address any matter or circumstances which he or she considers requires particular attention in the course of the sentencing submissions. A relevant matter or circumstance would include that: (a) the prosecutor has taken no issue with the content of a supervision report or a submission made on behalf of the offender; and (b) the offender relies on the prosecutor's silence as to the particular matter as a concession on behalf of the Crown that no issue is taken with it. Such a submission would either elicit a demur from the prosecutor if there is one or otherwise alert the sentencing court to the need to inform the parties of the potential departure from an agreed position.

[113] Lastly, the respondent submitted that the appellant's failure to appeal the sentence on the basis of manifest excess (or some other error) was an indication that any departure from proper process did not rise to practical injustice.

[114] I note that in Yinarrarra, an appeal on a similar ground to this, Grant CJ held (at [19]) that it was important in that case to note that the appellant had not suggested that the failure to make an order suspending the sentence was manifestly excessive.

[115] The appellant argued that the failure to challenge the sentence imposed on the ground of manifest excess was not a concession that either the length of the sentence or the imposition of a non-parole period was an appropriate disposition.

[116] Establishing a denial of procedural fairness does not require the appellant to show that the departure from the dictates of proper procedure led the sentencing court into error in the imposition of the sentence. The key determinant is whether practical, not merely theoretical, injustice has resulted. An erroneous sentence may demonstrate practical injustice, but it is not the only way to do so particularly in circumstances where it is put that there was a denial to an offender of a reasonable opportunity to present their case. In the circumstances of this appeal, I do not place any weight on the fact that the appellant did not argue that the sentence imposed was manifestly excessive.

[117] For the reasons set out above, the appellant was not denied procedural fairness.

[118] The appellant's ground of appeal is not made out.

[1] Pursuant to s 121(5) of the Domestic and Family Violence Act, the maximum penalty was actually imprisonment for five years because the conduct constituting the offence involved harm to the protected person.

[2] Mitchell v Gibson [2014] NTSC 59 at [12] per Kelly J, citing Jambajimba v Dredge (1985) 33 NTR 19 at 22 per Muirhead ACJ.

[3] Ibid, citing Bartusevics v Fisher (1973) 8 SASR 601.

[4] Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 472-473 per Mason CJ and Brennan J, at 482-483 per Deane, Toohey and Gaudron JJ.

[5] Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 ('Lam') at [34] per Gleeson CJ, cited in Weir v The Queen [2011] NSWCCA 123 ('Weir') at [65] per Garling J (Macfarlan JA and Johnson J agreeing), in turn cited in Carl v The King [2023] NSWCCA 190 ('Carl') at [72] per Yehia J (Weinstein J agreeing).

[6] Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 185 per the Court.

[7] Lam at [36] per Gleeson CJ, cited in Weir at [67], in turn cited in Carl at [72].

[8] DL v The Queen [2018] HCA 32; (2018) 265 CLR 215 at [39] per the Court. See also Carl at [2], [5] per Leeming JA, at [74]-[79], [85] per Yehia J.

[10] R v Li [1998] 1 VR 637 ('Li'). .

[11] Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 ('Chow').

[12] Galea v Galea (1990) 19 NSWLR 263.

[13] Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701.

[14] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591 per the Court.

[15] Klewer v National Disability Insurance Agency [2023] FCA 630 at [77] per Raper J.

[16] Nguyen v The King [2025] NSWCCA 42 ('Nguyen') at [45] per Dhanji J (Davies and Huggett JJ agreeing).

[17] O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [26] per Basten JA (Howie and Johnson JJ agreeing), cited in Nguyen at [45]-[47].

[18] Webb v Winzar [2016] NTSC 32 ('Webb v Winzar').

[19] Wayne v Cornford [2013] NTSC 1 ('Wayne v Cornford').

[20] Lam at [34], cited in Weir at [66], in turn cited in Carl at [72].

[21] Tran v The Queen [2019] NTCCA 12 ('Tran') at [36] per the Court, citing Whitehurst v The Queen [2011] NTCCA 11 at [27]- [29]; Cook v The Queen [2018] NTCCA 5 at [34].

[22] Whitehurst v The Queen [2011] NTCCA 11 ('Whitehurst'). These observations were also cited with approval in Tran at [39].

[23] Namundja v Bott [2025] NTSC 48 at [24] per Brownhill J.

[24] Subdiv 2 ('Intensive community correction orders') of Div 5 of Part 3 of the Sentencing Act commenced operation on 25 March 2024.

[25] The King v Danby [2026] NTCCA 2 at [6]- [7] per Grant CJ.

[26] Ibid and also at [69] per Blokland and Huntingford JJ.

[29] Ibid at [10], where Grant CJ refers to the nature of the offence and the offender's subjective circumstances.

[30] Veness v The Queen (2020) 354 FLR 347 ('Veness').

[31] Yinarrarra v Heath [2017] NTSC 54 ('Yinarrarra').

[32] Cubillo v Andreou [2017] NTSC 53.

[33] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 per Mason J (Gibbs CJ and Dawson J agreeing). See also Namundja v Bott [2025] NTSC 48 at [35] per Brownhill J, citing by way of example Carr v The Queen [2020] NSWCCA 214 at [47]- [50] per Johnson J (Harrison and Hamill JJ agreeing); McBride v The King [2025] ACTCA 16 at [107] per Baker, Taylor and Abraham JJ.

[34] Carl at [5] per Leeming JA.

[35] See Second Reading Speech, Sentencing and other Legislation Amendment Bill, Hansard, 13 October 2022, pp 4896-4897.

[36] See ss 62A and 62B of the Interpretation Act 1978 (NT) and, for example, CIC Insurance Ltd v Bankstown Football Club Inc (1997) 187 CLR 384 at 408 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ.