Kenny v Tencate [2026] NTCA 2

[27] The cases of Niass and Hampton were endorsed by the Court of Criminal Appeal in Dib v R. Acting Justice of Appeal Simpson, with whom the other members of the Court agreed, stated:

It is thus well - and consistently - established that, in this State, offenders will not be given quantified reductions in sentence to take account of periods spent in custody other than those referable to the offence or offences for which sentence is to be imposed and neither will sentences be backdated to achieve the same result.

These cases do not establish a "common law principle" which this Court would be obliged to, or should, follow. As the survey above indicates, there is no firm or clear principle which justifies the extension of the discretion identified in Heaney and Renzella beyond the statutory and factual context in which it was developed. As Johnson and Bellew JJ commented in Hampton, the practice in Victoria developed out of a statutory provision that may have been seen to restrict (and was argued by the Director of Public Prosecutions in Renzella to have restricted) the ability of the court to take into account pre-sentence custody other than that directly referable to the offence for which sentence was to be passed. In subsequent cases, that practice was sometimes expanded without explanation of why that expansion was justified. The applicant's argument did not address why those authorities in Victoria or other States that deviate from the position adopted in NSW following the decision in Niass should prevail over Niass and those decisions that follow it. In this respect, it is notable that the decisions in Victoria appear to have proceeded without any reference to Niass or its successor cases.[14]

[28] Having conducted that analysis in the present matter, the Supreme Court at intermediate level considered that the New South Wales approach should be preferred. In coming to that conclusion, the Supreme Court had regard to the following matters. First, the High Court had refused leave to appeal in Hampton.[15] Second, the decision in Renzella was influenced by and restricted to the specific statutory context in which was decided. Third, the question whether the service of 'dead time' is properly characterised as 'unfair' or 'an injustice' or gives rise to a 'justifiable grievance' requires an analysis of the circumstances better undertaken in other forums and contexts. Fourth, the New South Wales approach allows 'dead time' to be taken into account as part of the intuitive synthesis where it is appropriate to do so.

[29] The specific part of the Supreme Court's decision to which this appeal is directed was as follows (emphasis added):

The fact that an offender has served dead time in the past is, of itself, irrelevant to sentencing for an unrelated offence. What is relevant is any effect the serving of the dead time had on the offender. Did the offender lose their employment, or their home or relationships? Were they assaulted or in some other way injured while serving the dead time? Many other examples may be found. These are relevant subjective matters which can be taken into account as "part of the mix" in the process of instinctive synthesis.

A more difficult question is whether any particularly onerous conditions under which the offender served the dead time is relevant in the manner I have described. On balance, I accept that it is. It will, of course, be a matter of degree and judgment as to whether conditions were particularly onerous and as to the weight to be given to that circumstance in sentencing. It is inappropriate for a sentencing court engaged in such an exercise to adopt a multi-stage process of reasoning in which the weight to be attributed to this individual circumstance is identified and revealed. It simply becomes part of the material upon which a sentence is determined by the process of instinctive synthesis.[16]

[30] While that passage, and its apparent adoption of the New South Wales line of authority, forms the basis of the appeal to this Court, on proper analysis it was not the basis for the order dismissing the appeal from the Local Court on the ground that the Local Court had failed to take into account 'dead time' and the onerous conditions under which it was served. The Supreme Court went on to observe that the sentencing judge was clearly aware of both the period spent on remand for the unrelated offence and the appellant's submissions concerning the onerous nature of that custody. In those circumstances, it could be presumed that the sentencing judge took the 'dead time' into account as part of the appellant's subjective circumstances. That was how defence counsel submitted that it should be taken into account, and no error in that respect was disclosed.[17] The Supreme Court also made the observation that the material placed before the sentencing judge provided little assistance in determining the significance of the conditions under which the appellant served the 'dead time'.[18]

[31] As observed in NB & Ors v SB & Ors,[19] the right of appeal is subject to two qualifications.

[32] First, when considering an appeal from the decision of the Supreme Court, this Court is concerned with whether the Supreme Court committed error. It is not concerned with whether the Local Court committed error, although a failure by the Supreme Court to rectify an error committed by the Local Court may constitute error on the part of the Supreme Court. This will depend upon whether the original error vitiated the determination at first instance[20] and, if so, whether there was error on the part of the Supreme Court in determining to confirm the original decision.

[33] Secondly, s 51 of the Supreme Court Act does not permit an appeal against the reasons for the decision of the Supreme Court. It permits an appeal against the correctness of the order or judgment made by the Supreme Court, although that challenge may involve attacking the reasons given for the order or judgment.[21] The order made by the Court in this case was to dismiss the appeal and confirm the decision of the Local Court. In order to succeed, the appellant must establish that order was wrong. More specifically, the appellant must establish that he or she was erroneously denied the benefit of some legal principle which he or she sought and to which he or she was entitled.

[34] For those reasons, it is necessary for the appellant to demonstrate both that the Local Court committed a vitiating error and that the Supreme Court's order dismissing the appeal was also made in error. That requires a consideration of how the matter was argued and determined in the Local Court.

[35] After detailing that the appellant had spent just under 300 days on remand in relation to a serious charge of which he was ultimately acquitted, defence counsel in the Local Court relied upon sentencing remarks made by a judge of the Supreme Court in 2018:

So the issue that arose in this matter was how to deal with the facts that the defendant, Mr Darrel Martin, had spent I think it was about 300 days on remand in relation to an unrelated matter and that matter was ultimately discontinued by the Crown.

So in the last paragraph it stated that: "There's this issue of how the so‑called 'dead time' is to be taken into account, if at all in the current sentencing circumstances" and the Crown was arguing on that occasion that it should not be taken into account in any significant way due to its potential to undermine the deterrent elements in the sentencing process.

And the next page Blokland J indicates that, "This time should certainly not be seen as time in the bank, but given the reasonably close connection time with this offending" - I understand that there was a far bigger gap in this case than in Mr Kenny's circumstances - "The court was able to look at that matter in an overall sense when considering totality somewhat beyond what might ordinarily be expected, although not in a way to alter the substantial way the fundamentals of his sentence."[22]

[36] Having stated the principle asserted, defence counsel then made the following submissions concerning how that principle required 'dead time' to be taken into account in this case:

So I would ask your Honour to consider the near 300 days that Mr Kenny has spent on remand in relation to a matter of which he was ultimately acquitted in a similar manner in this particular instance - that is it is not submitted that there should be a day-for-day discount applying in these circumstances but it is considered that your Honour is entitled to and should, take into account those 300 days as part of Mr Kenny's subjective circumstances - and they are significant, your Honour, that time spent on remand was not easy for Mr Kenny.

I told your Honour that he is someone who is very connected to culture. He takes his cultural commitments seriously. He has spent the last two summers on remand. He tells me he spent both Christmas last year and the year before in G Block. He was subject to scorching heat for many periods - much time during those periods with air conditioning issues, he was subject to lockdowns, they are extremely - as your Honour is well aware, the circumstances in the Alice Springs Correctional facility have been extremely onerous for some time and he spent a significant amount of time in custody. Over the last two years he has pretty much spent nearly all of that time in gaol, and I do ask your Honour to take all of that into account in assessing orders for totality.[23]

[37] The substance of that submission was that the 'dead time' should be taken into account as part of the appellant's subjective circumstances. In particular, custody on remand included uncomfortable conditions and lockdowns. Ultimately, defence counsel's submission was that those matters, together with the fact that the appellant had been in custody for almost all the previous two years, should be taken into account as part of the totality considerations.

[38] The Local Court made the following determination in its sentencing remarks with specific reference to the question of 'dead time':

You have previously been on remand for another period for a substantial period of time of 362 days before you were acquitted and you were released on 16 of October of last year - that is just 23 days prior to your present offending.

I have been provided with the sentencing remarks of The Queen v Darrel Martin concerning the issue of "dead time". It can be taken into account in relation to a variety of ways but is not to be treated as day for day or to undermine the deterrent elements of sentencing.

Your offending does call for denunciation, general and specific deterrence and particularly around the need for the protection of Aboriginal women and young girls and the integrity of domestic violence orders.

I also take into account the principle of totality.[24]

[39] Leaving aside the questionable adequacy and remarkable economy of those reasons, it is tolerably clear that the Local Court found that 'dead time' could be taken into account in the manner described in the sentencing exercise undertaken by the Supreme Court in 2018. That was the manner in which defence counsel submitted that it should be taken into account, and for the reasons given by the Supreme Court it should be presumed that the Local Court took into account the onerous nature of the appellant's incarceration during that period and took 'dead time' into account 'in an overall sense when considering totality'.[25] It is of note in those respects that the appellant did not press any appeal to this Court on the grounds that the reasons given by the Local Court were inadequate or that the total period of imprisonment and/or the non-parole period were manifestly excessive. The Local Court did not commit any vitiating error of the type now asserted by the appellant, and the Supreme Court did not commit error by dismissing the appeal on the basis that the sentencing judge took the 'dead time' into account as part of the appellant's subjective circumstances.

[40] It may readily be accepted that there is a divergence on the proper treatment of 'dead time' between the New South Wales and Victorian authorities. The Victorian line of authority has been adopted in some decisions of the Queensland, Tasmanian and Australian Capital Territory courts, but with what the respondent describes as 'problematic results'. There is no case decided in the Territory which deals authoritatively with the issue. It is a matter which will no doubt need to be addressed when the appropriate vehicle arises. However, this is not an appropriate vehicle because for the reasons we have described the appellant has not established either that the Local Court committed a vitiating error in the manner it dealt with the 'dead time', or that the Supreme Court's order dismissing the appeal was made in error. For this Court to deal with and determine the issue in those circumstances would be to provide an advisory opinion on a hypothetical issue independently of the resolution of a specific dispute concerning that issue. To do so would fall outside this Court's purview on appeal.

[1] Kenny v Tencate [2026] NTSC 1.

[2] R v Renzella [1997] 2 VR 88 at [98].

[3] In other contexts calling for some moderation of sentence, such as in service of the principle of totality, this has been considered an approach best avoided if possible. That is because it has the tendency to distort the sentence and the potential to confound comparative sentencing exercises.

[4] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123 at [42].

[5] R v Stares [2002] VSCA 70; R v Chimirri [2003] VSCA 45; R v Wade [2005] VSCA 271; R v Solovastru and Evans [2005] VSCA 254; R v Giakoumogianakis [2005] VSCA 156; and R v Rosenow [2007] VSCA 265.

[6] Warwick v The Queen [2010] VSCA 166 at [10]- [11], [17]-[18.

[7] Karpinski v The Queen [2011] VSCA 94 at [60].

[8] Karpinski v The Queen [2011] VSCA 94 at [71].

[9] Karpinski v The Queen [2011] VSCA 94 at [5]- [8].

[10] Kenny v Tencate [2026] NTSC 1 at [74].

[11] R v Niass (Unreported, New South Wales Court of Criminal Appeal, 16 November 1988).

[12] Hampton v The Queen [2014] NSWCCA 131; (2014) 243 A Crim R 193.

[13] Nicholas Hampton v The Queen [2015] HCASL 76 at [5]- [6].

[14] Dib v R [2023] NSWCCA 243 at [52], [81].

[15] In so doing, the Supreme Court did not treat the result in the special leave application as an affirmation of the decision in Hampton: cf Sir Anthony Mason, 'The Use and Abuse of Precedent', Australian Bar Review, August 1988, pp 96-98. Rather, the Supreme Court considered it a matter of some relevance when taken together with the fact that the decision in Hampton was a decision of a five-member bench of the Court of Criminal Appeal specially constituted to consider the issue of the relevance of 'dead time' to sentencing for later offences.

[16] Kenny v Tencate [2026] NTSC 1 at [103]- [104].

[17] Kenny v Tencate [2026] NTSC 1 at [109].

[18] Kenny v Tencate [2026] NTSC 1 at [110].

[19] NB & Ors v SB & Ors [2020] NTCA 2 at [64].

[20] Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174 at [9]- [11]; Phelps v Development Consent Authority & Ors [2012] NTCA 2 at [7].

[21] Lawrie v Lawler [2016] NTCA 3 at [49].

[25] As defence counsel had requested the sentencing judge to do at Appeal Book, p 16.