Jenkins v Whittington [2017] NTSC 65

Jenkins v Whittington [2017] NTSC 65 | Case summary | Zoe

[15]

[1] By complaints taken on 8 April 2016 and 13 April 2016 the appellant was charged with the following counts:-

Behaving in a disorderly manner in a public place, namely the Supreme Court at Darwin, contrary to s 47(a) of the Summary Offences Act (NT). The maximum penalty for that offence was $2,000 or imprisonment for six months, or both.

Failing to cease to loiter when required by member of the police force contrary to s 47A(2) of the Summary Offences Act. The maximum penalty for that offence was $2,000 or imprisonment for six months, or both.

Resisting a member of the police force in the execution of his duty contrary to s 158 of the Police Administration Act (NT). The maximum penalty for that offence was eight penalty units or imprisonment for six months, or both.

Behaving in a disorderly manner in a police station, namely Darwin police station, contrary to s 47(c) of the Summary Offences Act. The maximum penalty for that offence was $2,000 or imprisonment for six months, or both.

Failing to comply with a requirement of a security officer at the Supreme Court, namely failing to leave the court premises, contrary to s 13(2) of the Court Security Act (NT). The maximum penalty for that offence was 40 penalty units or imprisonment for 12 months.

Resisting a court security officer in the execution of his duty contrary to s 15 of the Court Security Act. The maximum penalty for that offence was 85 penalty units or imprisonment for 2 years.

[2] Following a hearing conducted in the Local Court over the course of 26 and 27 April 2017 the appellant was found not guilty of count 1, but guilty of counts 2, 3, 4, 5 and 6.

[3] During the course of that hearing the appellant comported himself in a manner which led the trial judge to conduct part of the hearing in the appellant's absence. In addition, the trial judge found the appellant guilty of contempt in the face of the court for that behaviour, and on 26 April 2017 sentenced him to imprisonment for two months for that contempt. Ultimately, one month of that sentence was served concurrently with a sentence of two weeks and two months subsequently restored by the Supreme Court.

[4] The sentence restored by the Supreme Court arose out of proceedings that were conducted before Barr J in Jenkins v Todd.[1] In the opening two paragraphs of his reasons, Barr J made the following observations:

[1] This appeal hearing demonstrated the difficulties of doing justice in the case of a self-represented appellant who demands to be tolerated and understood, perhaps even indulged, as a homeless man without resources, but who has an extraordinary sense of entitlement, is obsessed with his perceived artistic and literary greatness, arrogant and unreasonable, extremely disrespectful to the Bench, untruthful in his statements from the Bar table, unreliable and selective in his submissions, and given to vituperative outbursts when questions were asked of him which exposed flaws in his arguments.

[2] The appellant believes that he is a misunderstood genius: "I'm a genius, you know, and so people can't handle that." On another occasion: "I'm not a legend for nothing ... I'm one of the greatest artists and greatest thinkers in this Territory. I am. If you don't like it, well, shove it up your arse. That's all I can fuckin' say."

[5] As a result of the appellant's conduct in that matter, Barr J had directed the Registrar to apply by summons or originating motion for punishment of the appellant for an alleged contempt.

[6] The application was heard and determined by Kelly J. On 20 April 2016, in Jenkins v Todd (No 2),[2] Kelly J concluded beyond reasonable doubt that by persistently interrupting and talking over the presiding judge in the manner set out in the particulars, the appellant was guilty of contempt in the face of the court. On 11 May 2016, Kelly J convicted the appellant and sentenced him to imprisonment for three months commencing on 7 May 2016, to be suspended after two weeks on certain conditions.

[7] Justice Kelly was subsequently called upon to consider whether the suspended sentence she had imposed for the contempt should be restored in whole or in part on account of a breach by the appellant of the conditions of the order suspending sentence.[3] The breach of condition was constituted by subsequent misbehaviour in different proceedings before the Local Court by the appellant continually interrupting the evidence of a Crown witness and failing to comply with numerous directions by the trial judge that he cease doing so. In the event, on 9 May 2017 Kelly J wholly restored the sentence held in suspense.

[8] As already observed, that restored sentence was to be served concurrently as to one month and cumulatively as to six weeks with the two months that had been imposed by the Local Court for the contempt committed on 26 April 2017. Accordingly, the term imposed by the Local Court ran to 25 June 2017, and the sentence restored by the Supreme Court ran to 8 August 2017.

[9] On 15 May 2017, the appellant sent a Notice of Appeal in the present matter by email to the Supreme Court Registry. That notice was in accordance with Form 63 and was lodged before the Local Court had sentenced the appellant for the offences pleaded in counts 2, 3, 4, 5 and 6. The appeal was purportedly bought pursuant to ss 171 and 172 of the Local Court (Criminal Procedure) Act (NT). Section 172 requires relevantly that the notice of appeal shall state the nature and grounds of the appeal.

[10] The notice of appeal contains a handwritten statement running to six pages describing a mishmash of complaints. As best as can be discerned, the purported grounds of appeal recorded in that document are:

the trial judge failed to recuse himself from the determination of the case;

the appellant was unable to represent and defend himself on the charges;

the prosecution failed to call relevant witnesses in the conduct of the prosecution on the complaints;

the charges were unsustainable because it is illegal to have private security guards in a public courthouse;

the charges were not properly made out because police and security guards attending on the incident were deliberately threatening to the appellant and escalated the incident; and

the finding of contempt made against the appellant by reason of his behaviour during the course of the hearing should not stand as a security guard in the Local Court had initiated the dispute because he was a Muslim who knew the appellant was a devout Christian, and it was that dispute which precipitated the appellant's subsequent behaviour.

[11] On 16 June 2017, the Local Court sentenced the appellant to a total effective period of imprisonment for five months for the offences brought on complaint. That sentence was structured as follows:

imprisonment for one month in respect of count 5 (failing to comply with a requirement of a security officer);

imprisonment for two months in respect of count 6 (resisting a court security officer in the execution of his duty), to be served concurrently with the sentence imposed for count 5;

imprisonment for one month in respect of count 2 (failing to cease to loiter when required by member of the police force), to be served concurrently with the sentence imposed for count 6;

imprisonment for two months in respect of count 3 (resisting a member of the police force in the execution of his duty), with one month of that period to be served cumulatively upon the sentence imposed for count 6; and

imprisonment for two months in respect of count 4 (behaving in a disorderly manner in a police station), to be served cumulatively upon the sentence imposed for the other counts.

[12] That total effective period of imprisonment was to commence from 9 August 2017, after completion of the sentence of imprisonment previously restored by the Supreme Court.

[13] The grossly defective nature of the appeal documents notwithstanding, it is tolerably clear from what was said by the appellant during the course of mentions on 11 and 20 July 2017 that he seeks to appeal on the following grounds:-

that the trial judge erred in failing to recuse himself on the basis that there was a reasonable apprehension of bias arising from a personal relationship between the trial judge and one of the witnesses in the matter;

that the trial judge erred in convicting the appellant of contempt on 26 April 2017, and in imposing penalty in respect of that conviction;

that the appellant was denied natural justice by reason of the fact that part of the hearing was conducted in his absence; and

that the sentence imposed by the trial judge on the convictions for counts 2, 3, 4, 5 and 6 was manifestly excessive.

[14] The appellant confirmed they were the matters which he wished to agitate during the course of the appeal. Although under no obligation to do so, and although entitled to insist on compliance with the requirement in s 172 of the Local Court (Criminal Procedure) Act that the notice of appeal competently state the nature and grounds of the appeal, the respondent agreed to the conduct of the appeal on the grounds recorded in the preceding paragraph.

[48]

[24] For reasons which are obvious from the appellant's responses, his assertions concerning interactions between Judge Neill and Mr McGregor are not compelling. Even had those assertions taken the form of sworn evidence, rather than statements from the bar table, the appellant's account of seeing them together having coffee or socially - presumably on a number of occasions - had the distinct air of fabrication or invention. Against that background, a number of conclusions may be drawn in relation to this ground of appeal.

[25] First, there is no doubt that Mr McGregor was known to the judge and was to be a witness in the criminal prosecution of the appellant. As the judge observed during the course of the application, that did not in itself compel recusal. The mere fact that the decision-maker may know a witness in the proceedings does not ground a reasonable perception that the decision may be influenced by that association or acquaintance.[8] That depends in every case on the closeness of the association, the time for which it has subsisted, and the incidents of that connection.[9] The appellant brought no evidence in relation to those matters in the face of the judge's indication that there was no personal or social relationship of a degree which disqualified him from hearing the matter.

[26] Secondly, the fact that the judge had previously indicated a disinclination to preside over the private prosecution which had been brought against Mr McGregor by the appellant did not operate as any concession that there were grounds for a reasonable perception that his decision in the matter might be influenced by some relevant association. Judge Carey's comment was that Judge Neill was "not comfortable dealing with the matter". Even in the absence of grounds for some reasonable perception of bias, one can well understand why the judge might have felt uncomfortable dealing with proceedings which had as a possible consequence the conviction of Mr McGregor and the imposition of some criminal sanction. One might also understand why there was no similar discomfort in the context of proceedings in which Mr McGregor was simply one of the number of witnesses to a series of transactions involving the appellant.

[27] Thirdly, there are references by Judge Carey to Mr McGregor doing "some work for [Judge Neill]", and by the appellant to the fact that Mr McGregor "mowed lawns and things". There was no evidence or elaboration concerning those references either during the course of the application for recusal or during the conduct of this appeal. It would have been preferable for these references to have been subject to some express disclosure, submission and consideration, although it is possible the matter had already been canvassed during the course of one of the appellant's frequent applications for recusal during the preliminary stages.

[28] On their face, these would appear to be references by the appellant to the generally known fact that prior to taking appointment as Sheriff, Mr McGregor ran a gardening and landscaping business for a short period of time which punctuated a long period of service with the courts. The references suggest the judge was previously one of his clients in that business. Again, such a relationship would not necessarily ground a reasonable perception that the judge's decision in the present matter might have been influenced by some relevant association. If there was previously a service relationship of that nature, the judge was implicitly of the view that its incidents did not give rise to any reasonable apprehension of bias; and the appellant did not adduce or seek to adduce any evidence to different effect.

[29] The appeal on this ground is dismissed.

[117]

[39] When the matter resumed there was an appearance by a lawyer from the Northern Territory Legal Aid Commission to advise that she had spoken with the appellant and provided him with some legal advice. She indicated she had instructions to apologise on the appellant's behalf, and to say by way of explanation that the appellant had not slept well the previous night and had not eaten any breakfast. The judge noted the apology but was not satisfied it was a genuine or candid expression of remorse. The judge expressed the view that the appellant had been manipulating the proceedings "knowingly, deliberately and contumeliously", and was not prepared to discontinue the proceedings for contempt.

[40] The lawyer from the Northern Territory Legal Aid Commission then advised the court that unless and until the appellant indicated otherwise, her instructions did not extend beyond proffering the apology. The appellant did not seek to extend the retainer. The appellant then purported to speak on his own behalf in relation to the charge of contempt. He submitted variously and erroneously (as will be seen) that the charge of contempt had to be heard by another judge; that the prosecutor's conduct operated as some form of defence to the charge; and that the judge's refusal to allow him to make a "no case" submission at the time of plea had somehow precipitated and excused his conduct. The submissions then descended into further accusations of corruption, vitriol and self-aggrandisement, which included the appellant comparing himself to Mahatma Gandhi and Nelson Mandela.[19]

[41] The appellant did not seek any adjournment in order to prepare his defence to the contempt charge. Rather, he asserted that the contempt had to be dealt with by a different judge, that the presiding judge harboured some bias against him, and that he needed to be out on bail as he had to represent himself in another matter before the Supreme Court. The appellant also made some reference to the need to call witnesses,[20] although it is unclear whether that was a need arising in the conduct of the defence to the charges contained in counts 1 to 6, or arising in the contempt proceedings. It is difficult to see how or why there was any occasion or need to call witnesses in the defence of the contempt charge in circumstances where that charge related exclusively to matters which had transpired in the court room over the previous hour.

[42] The judge then determined, applying the decision of this court in Sanderson v Lambe,[21] that the usual course for dealing with contempt in the face of the court was for the matter to be dealt with by the judge before whom the contempt was allegedly committed. There was no separate trial of the charge of contempt, and the judge found the offence proven. The appellant then made further submissions which, if anything, aggravated the contempt.[22] The judge then delivered his decision in the matter, with some interruption, in the following terms:[23]

[153]

[51] Even where the legislature has enacted a contempt regime, statutory provisions dealing with misconduct in a courtroom are frequently interpreted with reference to common law contempt, and courts frequently cite and apply common law contempt cases, including as to procedure, as if they governed the matter.[27]

[52] The High Court has cautioned that in the common law context the summary procedure "should rarely be resorted to except in those exceptional cases where the conduct is such that 'it cannot wait to be punished' because it is 'urgent and imperative to act immediately' to preserve the integrity of 'a trial in progress or about to start'".[28] That caution has no necessary application in circumstances where the statutory regime permits the adoption of a summary procedure. Even in those circumstances, however, the caution draws attention to the difficulties which may present with the adoption of that procedure.

[53] It is apparent from a careful reading of the transcript of proceedings in this matter, however, that the very conditions of which the High Court spoke presented in this case. The appellant was making a mockery of the trial process. His conduct was such as to undermine the integrity of that process and effectively to prevent the determination of the criminal charges which he was then facing. The trial judge considered this was a deliberate and contumelious strategy on the part of the appellant. It was open to the trial judge to form that view. The matter had already been delayed on many occasions by reason of the particular challenges presented by the appellant, and it had been the subject of mention or preliminary hearing on some 18 prior occasions. This case was exceptional and it was urgent and imperative to act immediately to prevent the appellant from achieving his purpose of undermining the integrity of the trial process.

[54] In O'Brien v Northern Territory,[29] the Court of Appeal found that the magistrate's order to take the plaintiff into custody was unlawful because the magistrate had neither charged the plaintiff with, nor convicted the plaintiff of, contempt. Mildren J observed that a person could be remanded in custody: on the order of a judicial officer after the laying of a charge; or where the person's behaviour in court was such that he or she should be remanded in custody after being informed that he or she was remanded for contempt of court even if no charge had been formulated at that stage.[30]

[55] Section 46 of the Local Court Act has been enacted since that time. It may be that the express words of that provision displace the principle expressed in O'Brien. In particular, the provision would appear to empower arrest if it appears to the court that a person has committed a contempt in the face of the court; and to require the person to be informed of the contempt with which they have been charged after that time but perhaps before the court proceeds further.

[56] Even if there has been some change in that respect, there can be no doubt that procedural and evidentiary safeguards must be applied in the summary conduct of contempt proceedings. Failure to observe those safeguards may constitute a denial of natural justice, providing grounds for a contempt conviction to be set aside on appeal or review.[31] Those safeguards required that the appellant be given due notice of the charge. As stated, the judicial officer charged the plaintiff before remanding him in custody. That charge was framed in the following terms:

[155]

[57] Accepting that the appellant was given that notice of the charge, MacGroarty v Clauson[32] is authority for the proposition that a charge for contempt under a statutory regime must be framed with reference to the elements of the relevant statutory offence, and the failure to satisfy this requirement has the consequence that the conviction for contempt cannot stand. In considering charges for statutory offences which broadly replicate the common law concept of contempt in the face of the court, the High Court held that absent some clear legislative intent to the contrary, a charge will necessarily be inadequate if it fails to identify the particular statutory offence with which the accused is charged.

[58] Although the High Court found that the relevant provision evinced a legislative intent that the presiding judicial officer should be able to deal promptly and effectively with the statutory offences which the section created without being unduly impeded by formal procedural requirements, there was nothing in the section that dispensed with the fundamental requirement that a person should not be punished for a statutory offence of contempt of court unless the particular offence was distinctly identified. That was the case even though the presiding judge had made it clear to the accused the conduct which, in his view, constituted the contempt of court. The High Court concluded that the failure to identify the particular offence alleged had the result that the appellant was not properly charged and that the conviction could not stand.

[59] The statutory provision there under consideration was in terms similar to s 46 of the Justices Act, which has now been repealed and replaced by s 46 of the Local Court Act. As already noticed, that new provision renders conduct that would constitute contempt of court at common law a contempt of the court for statutory purposes. It does not create specific statutory offences such as "wilfully interrupting the proceedings of the court". As a consequence, there was no failure in this case to identify the particular offence alleged, and the charge as framed clearly put the appellant on notice of both the statutory provision pursuant to which it was brought and the conduct said to constitute the offending.

[60] The principle enunciated in MacGroarty appears directed to matters of form rather than substance. That is, the charge for a statutory offence of this nature must take a particular form regardless whether or not the accused has a general comprehension of the conduct giving rise to the charge. The principle would not have presented the same difficulties in that case had the court in question been dealing with the contempt under the common law power, or described in common law terms, rather than a specific statutory offence. As the High Court observed in MacGroarty, "[w]hen what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the 'gist of the accusation' is made clear to the person charged".[33]

[61] If it is accepted that the appellant was properly charged, in the application of the summary procedure it will generally fall to the presiding judge to determine whether the conduct in question constitutes contempt in the face of the court in a given case. That is reflected in the provisions of s 46 of the Local Court Act. In the course of making such a determination, the person charged with contempt must be given an adequate opportunity to prepare and present a case in reply. In Coward v Stapleton, the High Court explained this requirement as follows, with reference to the special summary procedure for contempt in the face of the court:[34]

[157]

[62] That requirement will obviously have application whether the matter is being dealt with pursuant to statute or under the common law. In either case, the requirement to provide a reasonable opportunity to be heard imports a number of incidents.

[63] First, the court should ideally try to ensure that legal representation is available to an accused facing a charge of contempt in the face of the court. As detailed above, an adjournment was granted to provide to the appellant with legal advice and representation. The appellant only availed himself of that opportunity for the purpose of having the legal practitioner convey an apology on his behalf. The appellant did not seek to continue the retainer or procure an adjournment once the court indicated that the apology would not purge the contempt.

[64] Secondly, an accused must have an appreciation of the conduct underlying the charge. The appellant was at all times present in court during the course of events leading to and the subject of the charge. In fact, he was central to those events. The appellant was privy to the judge's repeated and explicit indications that he should desist from such conduct.[35] As already observed, the content of the appellant's apology, and his legal representative's short discourse with the bench, disclosed an appreciation of the matters under consideration. At no stage did the appellant or his legal representative seek further particulars of the relevant conduct.

[65] Thirdly, there must be the grant of a sufficient adjournment to the accused to enable a defence to be prepared.[36] At no stage did the appellant indicate that further time was required in order to prepare his case or to seek further legal advice and representation. The appellant was clearly committed to representing himself. The appellant did not seek to give evidence on oath or to call his or her own witnesses (and, for the reasons already detailed, it is difficult to see how that course could usefully have been pursued in the circumstances). To the extent that the appellant took opportunity to address the court on the question of guilt, that address was nothing more than a confection of poor excuse and inadequate rationalisation. It might even be inferred that the apology proffered by the appellant after opportunity to confer with his legal representative constituted an admission of guilt.

[66] Fourthly, the case against the alleged contemnor must be proved by the instigating party beyond reasonable doubt.[37] This proposition is necessarily qualified by the fact that under the summary procedure the accused "is required to meet, not a case which is presented against him by evidence given at his trial, but a case which exists in the mind of the judge at the commencement of the trial".[38] The observations of the presiding judicial officer, both in this case and generally, constitute the principal material on which a conviction might be based. These are not subject to challenge in cross-examination, and do not require any other witness to be called in establishing the commission of the offence.

[67] The judge in this case had observed the conduct said to constitute the contempt over the hours leading up to his determination. He was in a unique position to determine whether the contempt was established beyond reasonable doubt, and a reading of the transcript gives rise to no doubt concerning the judge's determination in that respect.

[68] Finally, a person found guilty of contempt should be given the opportunity to address the court on the matter of penalty. The appellant was afforded that opportunity. However, by reason of his general disposition, lack of legal training and misplaced conviction as to his innate abilities, that address did not assist the appellant's cause.

[69] That loss of opportunity notwithstanding, it could not be said that the penalty imposed by the judge was unreasonable or plainly unjust. The appellant's assertion that the Local Court was restricted to the imposition of a maximum penalty of imprisonment for three weeks was clearly unfounded; and the penalty of imprisonment for two months must be considered in light of the appellant's recent prior conviction in the Supreme Court for similar conduct for which a penalty of imprisonment for three months was imposed.

[70] The appeal on this ground is dismissed.

[174]

MR JENKINS: I'm not here to appeal, I'm at risk. I'm at risk. I'm not going through with this. I'm not going through with this because I've got to be able to crossexamine people and call witnesses. I'm not going through with this. I asked for an adjournment, so I can actually - I want to appeal against my contempt. I want appeal papers sent out here by the Sheriff so as I can sit in the Sheriff's house and I can get appeal papers for my contempt charges. I want that. I want to see Legal Aid. I'm - I'm at risk at the moment. I want to kill myself, so I'm at risk and that's the - that's the end of this story. I'm not going through this anymore. You know, I'm at risk, okay, so - I'm not mentally capable of doing this. I want to see forensic mental health. Ré Acacio . I want to see forensic mental health. He hasn't even visited me here, so I'm - Ré Acacio, I'm not capable of handling this. They won't even give me my papers so I can't do anything. So I can't cross-examine people. They won't do anything here. So I need to see Legal Aid and then I - I want to see Legal Aid. I'm still at risk. I haven't even been assessed with that yet, okay. So I'm still at risk and I - I want to see. I want to kill myself. I'm sick and tired of the bullshit, okay. So then - then I'm not capable of doing that, okay, so then I'm asking for an adjournment then to see Legal Aid and I want papers sent out so that I can - I can appeal against the contempt. You haven't even allowed me to put in an appeal. I'm going to appeal and then I'm going to get bail on that because what you said is wrong. It's not two months. It's like three weeks on a contempt charge. You don't even know. Three weeks is the maximum (inaudible) contempt, Mr Neill, so that's what you need to do, okay. So I'm not - I'm not going to go through with this because I'm asking for an adjournment. It's pretty clear, okay. So, I mean, I haven't seen forensic mental health. I've got a forensic mental health assessment (inaudible) from the Supreme Court. It has to be in (inaudible) March 9 and I'd like an adjournment on that and I'd like to apply for bail, okay. So on bail because I'm appealing my charges, okay. So I'm appealing the contempt. I'm also appealing the case up in the Supreme Court, so that - I'm appealing that. So that's what I want to do, okay. So I - I wasn't in contempt of court and I want to appeal against that and also you - it's manifestly excessive saying two months. I want to appeal against that. Otherwise, that's the end of the story before I kill - so they leave me alone, you know. Leave me alone, that's all I want.

[182]

[78] It is no doubt the case that an offender's mental illness may have a very significant bearing on any determination whether to proceed to determine criminal charges on an ex parte basis, on criminal responsibility generally, and on the question of punishment and sentence. So far as the issue of criminal responsibility is concerned, during the course of these appeal proceedings the appellant expressly disavowed any mental impairment which would prevent him comprehending the nature and quality of his conduct; or prevent him knowing that his conduct as perceived by reasonable people was wrong; or give rise to an inability to control his actions. The appellant also disavows any inability by reason of mental impairment to understand the nature of charges brought against him or to participate in the trial process. As will be seen, the medical assessments also do not suggest any mental impairment with those consequences.

[79] The nub of the appellant's submission in this respect is that although his mental illness does not prevent him from forming the requisite intent or appreciating the consequences of his conduct (either in relation to counts 2 to 6 or the contempt), it does operate such that special accommodation must be made for him in the context of court proceedings.

[80] The two reports produced to the Local Court in aid of that submission during the sentencing proceedings were an advice to the Chief Health Officer pursuant to s 77 of the Mental Health and Related Services Act (NT) dated 13 March 2015 and prepared by a Designated Mental Health Practitioner, and a Mental State Assessment and Personality Inventory Assessment of the appellant prepared by a Psychologist and dated 4 May 2017. Those reports were also relied upon by the appellant for the purposes of this appeal, together with discharge summaries from the Tamworth Hospital in relation to the three attendances between 1994 1996.

[81] The advice to the Chief Health Officer had been requested by a magistrate in the context of previous court proceedings involving an alleged trespass at Parliament House and related disorderly conduct charges. It describes the appellant as a 50-year-old, single, unemployed male of no fixed abode who has been living in Darwin since 2005. It describes a childhood characterised by obsessive behaviours and a young adulthood characterised by drug use and intermittent engagement with mental health facilities. During the course of those engagements he was generally assessed to have insight into his behaviours but an unwillingness to conform. There was no evidence of genuine suicidal ideation, homicidal behaviour, perceptual disturbance, delusions or thought disorder.

[82] The advice to the Chief Health Officer goes on to record that since his arrival in Darwin, the appellant has been assessed and found not to be suffering from any mental illness in March 2013, September 2013, January 2014, February 2014, March 2014 and February 2015. It is of some note that the March 2014 assessment was conducted after the appellant simulated a suicide attempt while being held in the cells at court. On assessment, he told the attending mental health professionals that he had done this to voice his frustration at the court process but at no stage carried any suicidal intent. Similarly, in February 2015 the appellant was categorised "at risk" following disorderly conduct in a courtroom. On assessment he was found not to be mentally unwell with no indication for follow-up.

[83] The advice to the Chief Health Officer concluded that the appellant showed no evidence of psychotic symptoms or delusional ideas. Rather, he had an "entitled manner" and overvalued his own ideas to the point of obsession. There was no evidence he was suffering from mental illness or disturbance.

[84] The psychological report from May 2017 was prepared in the context of the application to restore the sentence held in suspense for contempt in the face of this court. That report drew a number of relevant conclusions. The appellant is excessively sensitive and overly responsive to the opinion of others. He exhibits delusions of both persecution and grandeur. He has an unrealistic and exaggerated appraisal of his own worth, and has difficulty controlling impulsive expression. He is unable to express emotions in an adaptive modulated way, and may alternate between direct expression and under-controlled emotional outburst. He has a narcissistic personality as a pathological defence against depression and rage. He is untrusting of others and believes that he is being plotted against. He believes that he is a gifted person, a lateral thinker, a "legend", and a "great artist". He also believes that he is a "political figure" who has "stood up to authority" which now intends to destroy his political career. He considers himself to be totally free and independent of the system, and that "[his] reality is just as important, just as powerful as any court reality or Judge's reality".

[85] Most significantly for the purposes of this appeal, the appellant was assessed following his threats to kill himself during the course of the proceedings in the Local Court on 26 and 27 April 2017. In that assessment the appellant admitted that he had only threatened to kill himself in an attempt to stop the proceedings. This was a considered and strategic action on his part. At no stage did he harbour any suicidal intent or ideation. The appellant also told the psychologist that he is entitled to express himself in any way he sees fit because he is a "great artist", and that the courts cannot dictate how he should behave because it would make him less of an artist. The psychologist concluded that the appellant is not mentally ill, but "has a separate reality that is grandiose" and a Narcissistic Personality Disorder.

[86] There is nothing in that material to suggest that the appellant does not properly bear criminal responsibility for his conduct, either at the time he committed the public disorder offences for which he was found guilty or at the time he committed the contempt in the face of the court. While the material might provide something in the way of explanation for the appellant's conduct, it does not provide any excuse or exculpation. The material also suggests positively that the appellant's assertions of mental illness and suicidal ideation made before the Local Court on 26 and 27 April 2017 were a ruse directed to derailing the conduct of the proceedings. A reading of the relevant part of the transcript and the progression of the appellant's behaviours at the time bears out that suggestion.

[87] During the course of this appeal the appellant suggested that the trial judge should also have disqualified himself on the ground that he harboured some personal animus towards the appellant. This assertion was made on the basis of a comment by the trial judge in a pre-trial hearing conducted on 19 April 2017. During the course of that hearing the following exchange took place: [45]

[194]

[90] Three qualifications may be made to that statement of general principle. First, there are certain well-established exceptions to the operation of the principle. Secondly, the principle is limited in its terms to the trial of an indictable offence, and has nothing directly to say about summary proceedings. Thirdly, the requirement for the presence of the accused is subject to any statutory provision that might be enacted by the legislature.

[91] The established exceptions to the application of the principle include:-

Where a defendant absconds and fails to appear at trial, there will have clearly been a waiver of the right to be present, and in that circumstance the prosecution may elect to go on with the trial in the absence of the defendant.[47] There is a divergence of judicial opinion as to whether this exception applies where the defendant is voluntarily absent at the beginning of the trial, or whether it is limited to circumstances in which the defendant absconds during the course of the trial.[48]

Where a defendant misbehaves in such a way as to make his or her removal from court necessary there will have been a waiver of the right to be present.[49]

Where a defendant is precluded by illness or incapacity from attendance at the trial the court may proceed in his or her absence, although a person in those circumstances will have much stronger grounds for resisting the continuance of the trial.[50]

[92] In each of these cases, the court has a discretion as to whether the trial should proceed or not.[51] Those exceptions are recognized in s 361 of the Criminal Code, but it is plain from the context that provision has application to trials on indictment and not otherwise. Whatever the nature and scope of the exceptions may be, the common law principle requiring the presence of the accused also has no application to summary proceedings. It is limited in application to indictable offences.[52] There is no "essential principle" that any part of a summary proceeding must be conducted in the presence of the accused.[53] The governing statutes and the implication of powers regulate the circumstances in which a court exercising summary jurisdiction may conduct proceedings in the absence of the accused.

[93] The Local Court Act provides for the exercise of summary criminal jurisdiction in the Northern Territory, subject to the operation of any statute dealing with specific subject matter. Section 38 of the Local Court Act provides expressly that the court may order a party be excluded from the courtroom during the whole or any part of the proceedings if it appears that the person's conduct makes it impracticable to continue the proceedings in the person's presence.[54] Similarly, ss 62, 62A and 62AB of the Local Court (Criminal Procedure) Act provide for the court to proceed ex parte in circumstances where a defendant fails to appear in obedience to a summons or in accordance with a bail undertaking.

[94] Although there is no provision dealing expressly with the conduct of proceedings in a defendant's absence in other circumstances, the Local Court has an implied power to regulate its own proceedings and to take such steps as are necessary for the exercise of its jurisdiction. Those implied powers must permit it also to proceed where a defendant in custody absents himself during the course of trial, or where a defendant in custody appearing by way of audio-visual link misbehaves in such a way as to make his or her removal necessary, or where a defendant in custody declines to participate in proceedings. The implied powers probably also extend to circumstances where a defendant is precluded by illness or incapacity from attendance at the trial and, in appropriate circumstances, where a defendant seeks to be excused from attendance.

[95] Those statutory and implied powers operate as exceptions to the ordinary rule that natural justice permits and requires the presence of the accused during the conduct of criminal proceedings. That exception is subject to the application of various criteria which govern the proper exercise of the discretion, and which are discussed further below.

[96] The trial judge did not make any formal order on either 26 or 27 April 2017 in terms that the appellant be excluded from the courtroom. It was put on the basis that the appellant had declined to participate in the hearing despite being offered the opportunity to do so by audio-visual link; and that the court's "decision" was to "proceed to receive evidence and deal with the matter in the absence of [the appellant] who has chosen to have the court proceed that way by default". That is properly characterised as an order pursuant to s 38 of the Local Court Act or, in the alternative, an order and procedure falling within the implied powers of the court.

[97] Accepting there was power to make the order in those terms, the question then becomes whether that power was exercised in error. It is plain from a consideration of the transcript of proceedings that the appellant's conduct - both while he was present in the courtroom prior to the finding of contempt and subsequently by audio-visual link from the prison - had made it impracticable to continue the proceedings in his presence. That on its face warranted the exercise of the power under s 38 of the Local Court Act.

[98] In R v Ferguson,[55] Mildren J considered the criteria identified in R v Hayward[56] for the guidance of courts in the exercise of powers and discretions directed to this purpose. The following observations may be made in the application of those criteria.

[99] The appellant's behaviour was deliberate, voluntary and such as to plainly waive his right to appear at the trial of the charges. Given the persistence of his behaviour and his antecedents, the court was correct to consider that an adjournment would not have cured the defendant's disruptive behaviours.

[100] The appellant expressed no genuine wish to be legally represented at the trial. To the extent he sought an adjournment to make application for legal aid, that application was properly considered as another ruse designed to delay the conduct of the proceedings. It must be noted in this respect that the appellant had not taken up the opportunity for legal representation during the conduct of the contempt proceedings beyond providing instructions for an apology to be conveyed to the court. The appellant's serial appearances as a self-represented litigant before the various courts in this jurisdiction also suggests a disinclination on his part to avail himself of qualified legal advice and representation.

[101] In any event, it might be considered unlikely that the appellant would have provided instructions to solicitors in a manner which would have enabled them to present a defence. That conclusion may be drawn from the various matters in his defence to which the appellant made advertence prior to the finding of contempt and during the sentencing proceedings (discussed further below). Those matters were founded on a series of untruths, misrepresentations and misapprehensions, and provided nothing by way of defence known to the law. It is also apparent from the evidence given by the witnesses called during the trial that the factual basis for many of the assertions made by the appellant were simply not correct (also discussed further below).

[102] As the matter was conducted summarily before a judge, there was no risk of a jury reaching an improper conclusion concerning the absence of the appellant. Finally, given the nature of the charges and their relationship to the administration of justice it was in the public interest that they be determined within a reasonable time.

[103] The appeal on this ground is dismissed.

[216]

[105] The matter was subsequently adjourned to 26 May 2017, in part to comply with the requirement in s 117 of the Sentencing Act (NT) that the offender be present when the sentence is imposed.

[106] On the resumption of the sentencing proceedings the Local Court received character evidence from two witnesses called by the appellant for that purpose. One witness was an officer of the Salvation Army and the other witness was the General Secretary of the St Vincent de Paul Society. Their evidence was essentially to the effect that the appellant participated in community work and that if a sentence was imposed involving some element of community service those organisations would be willing to host the appellant for the performance of that service.

[107] The appellant also expressed his intention to call a further five witnesses who could give evidence in relation to his artistic accomplishments. Those witnesses had not presented to court on that day for the purposes of the sentencing proceedings and no evidence was taken from them. The sentencing proceedings were adjourned to 16 June 2017 to allow the appellant to make arrangements in that respect.

[108] On the resumption of the sentencing proceedings the appellant called a "digital arts educator" who described herself as a person with "a dynamic understanding of diverse communities and how people like [the appellant] engage with life and learning through art". The essence of the witness's evidence was that the accused had contributed to the Darwin community through his art, and that the appellant could stay with her in the event he was sentenced to a community service order.

[109] That witness was followed by the Deacon from the Christ Church Cathedral. The witness's evidence was, in essence, that the appellant had contributed to a number of workshops run by the Cathedral; that although the appellant sometimes became agitated and heated in discussion, the witness never felt threatened; that the appellant had frustrated or exasperated a number of people associated with the Cathedral; and that the church always welcomed volunteers provided their contribution was workable.

[110] That evidence was followed by submissions. The appellant's submissions on sentence were discursive. They run for approximately 13 pages of the transcript.[58] They are directed in large part to the findings of guilt rather than to the question of sentence. They are not recognisably directed to orthodox sentencing considerations at all. Before turning to consider the sentence that was imposed it is necessary to give some attention to the evidence received by the Local Court during the course of the trial.

[111] The court heard evidence from the Sheriff of the Supreme Court. That evidence was to the effect that on the morning of 8 April 2016 he was advised that the appellant was appearing in proceedings before the court. (Those proceedings were, somewhat ironically, the application by the Registrar in the matter of Jenkins v Todd seeking to have the appellant dealt with for contempt in the face of the court.) As a result of the appellant's behaviours in court on that morning, the presiding judge had directed that the appellant was to leave the courtroom and would only be permitted to participate in the proceedings by audio-visual link from the vulnerable witness room if he chose to do so. Alternatively, the matter would proceed in his absence. That advice was provided to the Sheriff by the Deputy Sheriff, and had in turn been provided by the presiding judge's Associate.

[112] After receiving that advice the Sheriff proceeded to the courtroom. He had a conversation with the presiding judge's Associate in which she confirmed the orders that had been made. The legal practitioner representing the other party in the proceedings was attempting to persuade the appellant to leave the courtroom. The appellant refused to leave. The Sheriff directed the appellant to leave the courtroom. The appellant refused to leave and remained seated at the bar table. The Sheriff then said, "This is your last opportunity to stand on your own and remove yourself". The appellant refused to leave.

[113] The Sheriff then directed three court security guards who were in attendance to remove the appellant from the courtroom. Each of the security contractors employed as a security guard at the Supreme Court was also appointed as a Deputy Sheriff. As the court security guards were removing the appellant from the courtroom he wrapped his legs around a chair in order to impede their progress. He also went limp to constitute himself as a "dead weight" in order to impede their progress. Despite that passive resistance, the appellant was taken out of the courtroom into the foyer of the court building. The appellant was yelling and screaming as this took place.

[114] The appellant continued yelling and screaming in the foyer. The Sheriff directed him to desist or he would be removed from the court building. The appellant refused to comply with that direction. The Sheriff then directed the security guards to remove the appellant from the court building. The appellant again constituted himself as a dead weight but pressed his heels against the floor in an attempt to stop his progress towards the exit. The Sheriff then took the appellant by the legs and he was carried bodily outside. He was placed on the ground outside the court building. The appellant continued yelling during this process.

[115] The appellant was told that he would not be permitted to return to the court building until he calmed down and was prepared to behave himself. He would then appear to have calmed himself to a degree and convinced the security supervisor to readmit him to the court. The Sheriff approached the appellant and advised him that the proceedings in which he was involved had concluded. The appellant became aggressive. Police then attended.

[116] The Sheriff subsequently took a copy of the audio recording of proceedings before Kelly J on the morning of 8 April 2016, and what transpired after the judge had left the bench. That audio recording was received into evidence in the conduct of this prosecution. It records the presiding judge directing the appellant to leave the courtroom, and the direction subsequently given by the Sheriff to that same effect.

[117] The Sheriff also subsequently took a copy of CCTV footage from the court foyer on the morning of April 2016. That CCTV footage was also received into evidence in the conduct of this prosecution. It records the appellant being carried out of the court building in the manner described by the Sheriff, and the appellant variously screaming, praying and running in circles near the entrance to the court building following his ejection.

[118] The Local Court then heard evidence from the Sheriff's Officer who was on duty in the proceedings on the morning of 8 April 2016. Her evidence was as follows. The appellant was appearing in that matter. His behaviour deteriorated rapidly. He became very aggressive and began screaming "the same sentence" very loudly and repetitively. As a consequence, nobody else in the courtroom could speak. In response, the presiding judge adjourned proceedings. The Sheriff's Officer then reported the matter to the Sheriff.

[119] The Sheriff attended, directed the appellant to leave the courtroom in a clear manner, and gave the appellant "multiple opportunities" to do so. The appellant refused and was subsequently removed by security guards. The witness also gave evidence of the appellant wrapping his legs around a chair in order to impede that removal. She remained in the courtroom, but heard the appellant yelling from the foyer of the court building.

[120] The Local Court then heard evidence from one of the court security guards who on the morning of 8 April 2016 was involved in the removal of the appellant from the court room, and ultimately from the court building. His evidence was as follows. On that morning he received a call from the supervisor to provide assistance in the courtroom in which the appellant was appearing. When he arrived in that courtroom both the judge and the appellant were present. He observed that the appellant kept interrupting the presiding judge as she was attempting to speak despite the judge's directions that he not do so. The judge then adjourned proceedings.

[121] The Sheriff arrived and asked the appellant to leave the courtroom. The appellant refused and the security guards then "escorted" the appellant out of the courtroom. During the course of that process the appellant "was resisting and he just was leaving his body and was lying on the ground beside the Bar table".

[122] The Local Court then heard evidence from the legal practitioner representing the other party to the proceedings on the morning of 8 April 2016. His evidence was as follows. After the presiding judge adjourned proceedings the Sheriff directed the appellant to leave the courtroom. The appellant refused to do so and threatened to have the Sheriff charged with some unspecified criminal offences. The appellant's protests in that respect were loud and repetitive. The appellant was then forcibly removed from the courtroom by court security guards.

[123] The Local Court then heard evidence from the presiding judge's Associate. Her evidence was as follows. As a result of the appellant's conduct the presiding judge directed that if he wished to continue appearing in the matter he was to do so by audio-visual link from the vulnerable witness room. The appellant was subsequently removed from the courtroom by security guards.

[124] It was the conduct described in that evidence which founded the findings of guilt in respect of count 5 (failing to comply with a requirement of a security officer); and in respect of count 6 (resisting a court security officer in the execution of his duty).

[125] The Local Court then heard evidence from a police officer who was tasked to attend the Supreme Court on the morning of 8 April 2016. His evidence was as follows. On arrival at the Supreme Court he saw the appellant standing outside. The appellant was yelling at a person wearing robes who the witness assumed was a legal practitioner. The police officer watched this for a period of approximately five minutes before intervening. The appellant said: "Fuck off. It's none of your business."

[126] The witness was then joined by another two police officers. The appellant then went into the Supreme Court building to the registry and started aggressively demanding documents. In doing so he was swearing at the court staff behind the counter. The court security then requested police to escort the appellant from the court building. The appellant then walked without assistance to the front steps of the court building and sat on the ground.

[127] One of the other police officers in attendance then notified the appellant to cease to loiter and that he had 30 minutes to leave the area. The witness then went inside to speak to court security staff. While inside he heard the appellant shouting and saw him being arrested by the other two police officers in attendance.

[128] The Local Court then heard evidence from the police officer who had directed the appellant to cease loitering. His evidence was as follows. He was called to attend at the Supreme Court building on the morning of 8 April 2016. On arrival he observed that another police officer was already in attendance and speaking to the appellant. The appellant was highly agitated, aggressive, and engaged in argument with a legal practitioner.

[129] The appellant then said he needed paperwork from the court registry and went inside the court building. He approached the counter in the civil registry of the court and demanded paperwork. Registry staff advised that there would be a lot of photocopying involved and it might take in the order of an hour. The appellant's behaviour then deteriorated and he began swearing. He then left the court building voluntarily having been directed by the Sheriff to do so.

[130] The appellant remained on the veranda area of the Supreme Court building and continued to act in a highly agitated and aggressive manner. The witness directed him to move to the Civic Park area and wait for the paperwork to be completed by the Registry. The appellant continued to yell aggressively and assert that he had a legal right to remain where he was. The appellant refused to comply with the instructions by police to cease loitering and leave the area. The witness advised the appellant that he had until such time as the police vehicle arrived to remove himself, failing which he would be arrested for loitering in a public place. The appellant refused to leave the area despite repeated requests by police over an extended period.

[131] A police wagon arrived approximately 25 to 30 minutes later. At that time the witness gave the appellant one final warning and direction to cease to loiter. The appellant again failed to comply and was arrested. The appellant then began screaming: "I've done fuck all wrong. I've done fuck all wrong." The appellant was then walked down the stairs and placed in the back of the police vehicle. The appellant provided a degree of passive resistance during that process which the witness said made it hard to escort him to the rear of the vehicle.

[132] The appellant was then taken to the Darwin watch house. He continued to yell aggressively during the course of his admission. The court received into evidence a DVD recording of that process. As addressed further below, the appellant's behaviour during this process was subject to specific attention by the judge in his sentencing remarks.

[133] The Local Court then heard evidence from the other police officer involved in the appellant's arrest. His evidence was as follows. He had attended at the Supreme Court building on the morning of 8 April 2016 in company with the other officer. He saw the appellant speaking loudly and aggressively to another person who appeared to be a barrister. He followed the appellant into the Supreme Court building. While inside the appellant spoke aggressively to court staff and demanded paperwork. He was asked to leave and moved out to the front of the court building.

[134] The other officer then gave the appellant a direction to cease loitering. That direction was repeated on a number of occasions. The appellant failed to comply with that direction. The other officer then called for a police van to enable the appellant to be arrested. The police van arrived and the appellant was placed under arrest. The appellant resisted the application of handcuffs. The appellant refused to get into the back of the van and had to be lifted in. During the course of the process the appellant continued to shout words to the effect: "I've done fuck all wrong. I've done fuck all wrong." On arrival at the watch house the appellant repeatedly threatened to kill himself and demanded access to the "mental health team".

[135] The Local Court also heard evidence from an Aboriginal Community Police Officer stationed in the Darwin watch house who was tasked to convey the appellant to the watch house following his arrest at the Supreme Court. Her evidence was as follows. Upon her arrival at the Supreme Court she saw the appellant standing between the two police officers. When the appellant saw the police van he started waving his hands around and yelling. His behaviour was such that the police officers restrained him with handcuffs in order to place him into the police vehicle and take him to the watch house. As he was being moved towards the police van the appellant continued yelling and refused to enter. The attending police officers took his feet and placed them inside the secure cage in the back of the vehicle. As the Aboriginal Community Police Officer went to close the door to the secure cage the appellant started kicking the cage door. It required two police officers applying force to close the door.

[136] When the vehicle arrived at the Darwin watch house the appellant was placed in the holding cell. A health assessment was conducted, during which the appellant continued yelling and refused to answer any of the assessment questions. He was then placed in the observation cell where he started doing push-ups and continued yelling. At various times thereafter the appellant was observed to be praying. He asked for several cups of tea which were provided to him.

[137] It was the conduct described in that evidence from police, as supplemented by the audio-visual evidence, which founded the findings of guilt in respect of count 2 (failing to cease to loiter when required by member of the police force); in respect of count 3 (resisting a member of the police force in the execution of his duty); and in respect of count 4 (behaving in a disorderly manner in a police station). The judge was not satisfied beyond reasonable doubt that the appellant had conducted himself in a disorderly manner in a public place, and acquitted the appellant on count 1.

[138] The evidence given during the course of the proceedings came from witnesses who were discharging their professional duties at the material times. There were no material inconsistencies between the accounts given by each witness. Those accounts were given dispassionately and did not appear to be informed by any personal animus towards the appellant. Those accounts were corroborated by objective and contemporaneous evidence in the form of audio, visual and audio-visual recordings of various episodes. It would seem highly unlikely that those accounts would have been undermined in any material way by cross-examination, even in the hands of an expert counsel.

[139] It is then instructive to consider the grounds on which the appellant asserted that the convictions were recorded in error.

[140] First, the appellant asserted that at no stage had the Supreme Court directed that he was to leave the courtroom on the morning of 8 April 2016. That assertion was patently untrue.

[141] Secondly, the appellant asserted that the prosecution had failed to call relevant witnesses in the conduct of the prosecution. In particular, the appellant suggested that material evidence could have been called from the security guard who had permitted him to re-enter the Supreme Court building after he was initially injected, and from two journalists who were present in the court precincts at the time. The appellant was unable to identify the basis on which he asserted those witnesses may have had some different account to give, or the manner in which that evidence may have led to a different result. As the High Court observed in Richardson v The Queen:[59]

[253]

[157] Neither the determination not to suspend the sentence imposed on the appellant, nor the reasons given, demonstrate any error on the part of the sentencing judge. Perhaps the primary consideration in determining whether a sentence of imprisonment should be suspended is the effect that order would have on the rehabilitation of the offender, with the view ultimately to providing a measure of community protection. For the reasons given by the sentencing judge, the appellant's prospects of rehabilitation are extremely poor. The medical reports suggest a history of some 30 years during which the appellant has exhibited behaviours of this type. The prevalence and seriousness of those behaviours appears to have escalated significantly since in or about 2012.

[158] As already addressed, there was nothing before the Local Court to suggest remorse for or acknowledgement by the appellant of his wrongdoings. That attitude persisted during the course of this appeal. The appellant represented himself at all times as a person entirely without blame who had been purposefully and unjustly aggrieved, harassed, persecuted and traduced by corrupt or incompetent authorities. It might be considered highly unlikely that an order suspending sentence in whole or in part would have encouraged any form of rehabilitation or change in attitude. It may even have operated to entrench the appellant's belief that he has at all times been in the right.

[159] Leaving aside the question of rehabilitation, the appellant's recent criminal history, his previous breaches of bail and orders suspending sentence, his otherwise poor character, his age, his long-term disengagement from employment activity, and his disordered personality all militated against an order suspending sentence.

[160] The appellant's assertion that the sentence imposed was manifestly excessive falls to be assessed having regard to those subjective circumstances and the objective circumstances of the offending as described in the evidence and the sentencing remarks. In Truong v The Queen,[60] the Court of Criminal Appeal referred with approval to the following statement in relation to manifest excess made by Bongiorno JA in Hanks v The Queen:[61]

[255]

[161] That is the relevant test.

[162] The sentence imposed in respect of count 5, which was failing to comply with a requirement of a security officer, was imprisonment for one month. The sentence imposed in respect of count 6, which was resisting a court security officer in the execution of his duty, was imprisonment for two months to be served concurrently with the sentence imposed for count 5. Neither of those sentences could be said to be manifestly excessive, particularly having regard to the order for concurrent service.

[163] Those provisions requiring members of the public to comply with the requirements of court security officers and not to resist such officers in the execution of their duty are clearly directed to the orderly administration of justice. A breach of those provisions strikes at the effective conduct of the judicial process. So much is apparent from the circumstances under consideration in this case. The presiding judge in proceedings before the Supreme Court had ordered their conduct in a particular manner in order both to accommodate the appellant's misbehaviour and to facilitate his continuing appearance. The appellant refused to comply with directions provided by court security officers to give effect to the judge's orders. That conduct required a condign response to achieve the important purposes of deterrence and punishment.

[164] The sentence imposed in respect of count 2, which was failing to cease to loiter when required by member of the police force, was imprisonment for one month. That term was also ordered to be served concurrently with the sentence imposed for count 6. The sentence imposed in respect of count 3, which was resisting a member of the police force in the execution of his duty, was imprisonment for two months with one month of that period to be served cumulatively upon the sentence imposed for count 6. Although those sentences might be characterised as heavy if considered in isolation, they could not be considered manifestly excessive in the relevant sense having regard to the appellant's recidivist behaviour in this respect.

[165] The sentence imposed in respect of count 4, which was behaving in a disorderly manner in a police station, was imprisonment for two months to be served cumulatively upon the sentence imposed for the other counts. That sentence could not be characterised as manifestly excessive having regard to the offending behaviours described by the sentencing judge. Nor was the order for cumulation made in error having regard to the fact that the sentences imposed for the earlier offending in no way reflected the criminality of the appellant's behaviour in the police station in any temporal or circumstantial sense.

[166] That total effective period of imprisonment for five months was ordered to commence from 9 August 2017, after completion of the sentence of imprisonment for contempt previously restored by the Supreme Court. In making that order for what was effectively cumulation upon the sentences already being served, the sentencing judge gave no apparent consideration to the principle of totality. By that cumulation the appellant was subjected to a total period of imprisonment for eight-and-a-half months. Imprisonment for that length of time and in these circumstances required some consideration of totality.

[167] Totality is concerned with the overall appropriateness of the penalty to be served for a number of different criminal events which may or may not be unconnected. It must be considered where the sentence to be imposed by a court will overlap or operate cumulatively upon an existing custodial sentence, including an existing sentence being served in relation to offences of a different character which have been committed at different times and for which penalty has been imposed by a different court (including a superior court). The overriding consideration is that the total sentence must not exceed the total criminality.[62]

[168] For the reasons already given, it cannot be said that the individual sentences imposed for the "disorderly conduct" offences, or the manner of their cumulation inter se, was unreasonable or plainly unjust. In addition to those considerations, however, the principle of totality required the sentencing judge to give attention to the effect of the proposed sentence in all its aspects. The further question was whether making the five months wholly cumulative on the three-and-a-half months already being served for the contempts produced a sentence which exceeded the appellant's total criminality. Although that may well have been the appropriate conclusion in different circumstances, the order for cumulation could not be said to have excessive effect in the present case.

[169] First, the sentences for the two episodes of contempt of court were imposed to serve the interests of the public in maintaining the due administration of justice, the authority of the courts, and the interests of litigants. These are specific and crucial purposes. Any casual description of the appellant's conduct as that of a harmless eccentric flouting convention would belie its serious criminality. By his conduct in that respect the appellant imposes a very substantial drain on the resources of the courts with a deleterious impact on the claims of deserving litigants to the application of the courts' time. That effect is in diametric opposition to the result which the appellant is claiming to pursue - which is to further the interests of litigants, and particularly self-represented litigants. By his mindless, tedious and anarchic conduct he achieves nothing but to distract attention from those interests.

[170] Secondly, the "disorderly conduct" offences must be seen in context. The appellant's recent criminal history is redolent of the serial pest. There is an obvious and important civic purpose underlying requirements to comply with directions by police and specific categories of security officer, and to refrain from conduct in a police station which would interfere with the maintenance of law and order and the processing of offenders. By his conduct in that respect the appellant puts a significant and continuing strain on the already stretched resources of police and security services. This particular incident required the involvement of no fewer than eight personnel even before the accused was admitted to the Darwin watch house. His conduct generally was flagrant, in the public gaze, and designed to undermine the conduct of the judicial process, the administration of justice, and the enforcement of law and order. His behaviour in the watch house specifically was offensive, revolting and inflammatory in the extreme.

[171] Although those offences were no doubt motivated by the same misguided activism which drove the appellant's contemptuous behaviour in the courts, there was no temporal or circumstantial interdependence between them. The sentences imposed for contempt could not be said to reflect in any way the criminality of the appellant's behaviour towards court security officers and police. For the purpose of the sentencing exercise it is necessary to identify and evaluate the nature and seriousness of each different type of conduct, to ensure that an appropriate penalty is imposed for each, and to ensure that the harm done by each is recognised by appropriate cumulation.

[172] Finally, it was both permissible and necessary for the total sentencing disposition in this case to incorporate substantial components directed to deterrence and punishment designed to protect society from what might be considered to be a very significant risk of recidivism. The total sentence reflects those purposes without producing a figure that is "crushing" in the sense of removing any reasonable expectation of a life after release.

[173] The appellant's assertion of manifest excess, in either the individual sentences imposed or in their totality, must be dismissed.

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