Kirby v Kellie [2025] NTSC 19

Sentencing Act 1995 (NT), s 52(4)(b), s 53(7)

Judicial Commission of New South Wales, Sentencing Bench Book, para [70] - [100]

Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246; Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304; AMZ v R [2013] NSWCCA 6; Firth v The Queen [2018] NSWCCA 144; CMB v Attorney General for New South Wales (2015) 256 CLR 346; Craft v The Queen [2021] VSCA 66; Cumberland v The Queen [2020] HCA 21; (2020) 94 ALJR 656; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWC 343; [2006] NSWSC 343; 67 NSWLR 402; DL v The Queen [2018] HCA 26; (2018) 266 CLR 1; DPP v Kazarisis (2010) 31 VR 636; DPP v Lombardo [2022] VSCA 204; (2022) 102 MVR 19; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295; Garay v The Queen (No 3) [2023] ACTCA 2; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Heyward v Bishop [2015] ACTCA 58; 73 MVR 426; Horne v Carlon [2007] NTCA 2; House v The King (1936) 55 CLR 499; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; Kochai v R [2023] NSWCCA 116; Lacey v Attorney General of Queensland [2011] HCA 10; (2011) 242 CLR 573; Markarian v The Queen (2005) 228 CLR 357; Miller v R [2023] NSWCCA 267; Peach v Bird [2006] NTCA 7; (2006) 17 NTLR 230; Poidevin v Coutts [2024] ACTSC 91; O'Connell v McMennemin [2014] ACTSC 112; R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66; R v Campbell [2014] NSWCCA 102; R v EG [2022] NTCCA 10; R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451; R v Irwin [2020] NTCCA 3; R v O'Connor [2014] NSWCCA 53; R v Roe [2017] NTCCA 7; (2017) 40 NTLR 187; R v Walker [2023] NSWCCA 219; Semple v Williams (1990) 156 LSJS 40; Splinter v Dunne [2024] NTSC 24; Taylor v R [2020] NSWCCA 46; The King v CH [2024] NTCCA 10; The King v Singar [2025] NTCCA 1; The Queen v Kahu-Leedie [2022] NTCCA 4; Wolter v Broomhall [2023] ACTSC 331; Yeung v R [2018] NSWCCA 52, referred to

Appellant: Office of the Director of Public Prosecutions

Respondent: North Australian Aboriginal Justice Agency

Kirby v Kellie [2025] NTSC 19

• [1] On 6 September 2024, following a contested hearing in the Local Court, the respondent was found guilty of five serious domestic violence offences relating to four separate instances of offending against the same victim. Those offences include choking/strangulation contrary to s 186AA(1) of the Criminal Code (Counts 1 and 4), aggravated assault contrary to s 188(1)-(2) of the Criminal Code (Counts 2 and 3), and recklessly endangering serious harm contrary to s 174D of the Criminal Code (Count 5). The maximum penalty for Count 5 was imprisonment for seven years; the maximum penalty for each of the other offences was imprisonment for five years.

• [2] The trial judge heard sentencing submissions on 6 September 2024 and, following further submissions, on 18 September 2024 sentenced the respondent to an aggregate term of imprisonment for nine months to be served by way of an Intensive Community Correction Order ("ICCO") pursuant to s 45 of the Sentencing Act 1995 (NT) with a condition requiring him to serve four months by way of home-detention (although allowing him to leave his residence for work purposes).
• [3] By notice of appeal filed on 14 October 2024, the Crown appeals against the sentence on two grounds:

Ground 1: The learned sentencing judge erred in failing to provide adequate reasons.

Ground 2: The learned sentencing judge erred in imposing a sentence that was manifestly inadequate in all the circumstances.

• [4] The facts of the offending, as alleged by the Crown were as follows.

The victim and respondent started dating in early 2022 and had an "on and off" relationship for a number of months. At the time of the offending, the respondent was 19 years old and the victim was 18 years old.

The victim and respondent were at Casuarina Beach, where an argument ensued. The respondent grabbed the victim and bent her over the car door. He then used two hands to choke her for about 20 seconds. While he was choking her, he said "l am going to effing kill you". She was unable to breathe and could not scream out for help. Immediately after choking her, the respondent started crying and apologised for choking her. The victim recorded the conversation between them on her phone, in which he said "l don't want to fucking leave. I don't want to be without you. I don't ever want to be the fuck without you. I didn't mean to fucking do that to you, cunt. I didn't fucking mean to choke you. I'm sorry. I'm fucking sorry. I fucking - I did let go, cunt. I did. Just fucking stop."

• 4.3 Count 2 - Aggravated assault on 23 December 2022

The respondent entered the victim's house uninvited while she was asleep. The victim woke up to the respondent in her bedroom being verbally very angry. She could tell by his body language he was angry. The respondent grabbed the victim by her arms. In response, the victim spat on the respondent; he responded in kind. The respondent then pushed the victim to the floor.

4.4 Counts 3 and 4 - Aggravated assault and choking on 1 January 2023

The respondent demanded that the victim pick him up, texting her, "What's the address cunt? Pick me up, I'm in Wulagi. Right now, stop being useless." She asked him to promise that he would not be mad and stay calm, because she was in her father's car. He responded, "Shut up, cunt." The victim replied that she would pick him up and asked for his location. He responded, "Send me his where you picked him up from, you hungry, stupid, ho, slut."

When the victim picked the respondent up, he was "angry and aggressive". He demanded to see the victim's phone and an argument ensued. When she would not give him her phone, the respondent grabbed the victim's left hand which was resting on the gear stick of the car and twisted it. This act caused pain to her fingers, her arm, and her new tattoo on that hand. The respondent grabbed her with force the victim described as "pretty hard, to make me cry".

The respondent got out of the car with the victim's phone and said, "I'm going to fucking smash this. You wait, I'm going to do this to you. I'm going to do this to that." The victim chased the respondent to try and retrieve her phone. The respondent was holding the victim's phone and "playing a game of walking backwards and walking forwards and just laughing the whole time". At one point, he threw the victim on the concrete while laughing in her face. The respondent also head-butted the victim to her body which caused her to become winded, and attempted to do so a further time. The respondent then grabbed the victim by the throat with both hands and choked her up against the shop fence, with enough force that she was lifted off the ground. The victim said the grip was hard enough that she was not able to breathe. The choking left bruising on her neck.

The assault was protracted, lasting between 30 minutes to an hour, or possibly even longer.

The victim attempted to use a nearby payphone to call for help but the respondent went over to her, laughed, and said she was so pathetic and no one's going to answer her. The victim had to leave the scene in the dark without her phone. The respondent then misled her and her father - telling them that the phone was located at different places. When the phone was later returned, it was broken.

4.5 Count 5 - Recklessly endangering serious harm on 19 February 2023

The victim and the respondent had just broken up and the respondent was dropping her back to her residence. The victim said the respondent was calm and they were discussing the return of one of his necklace chains. The victim got out of the car and went to walk towards her house. The respondent said, "Come back," and the victim returned to the car.

The victim leaned into the driver's side window in anticipation of a hug. When she leaned in, the respondent grabbed her by her shirt and necklace and slammed on the accelerator. The victim remembered getting dragged up the road. The victim said the respondent completely just switched to a different person when he accelerated off. The victim recalled rolling along the road as he accelerated, at a speed greater than 15km/hr. The victim was unwillingly dragged up the road for some distance, which an eyewitness estimated to be between 30 and 50 metres, before he let go of the victim. The victim narrowly missed falling under the car and rolled on the road several times. The victim spent a night in hospital and suffered bruising and grazing to her elbow, knees, feet, shins and behind her shoulder.

• [5] In finding the respondent guilty, the trial judge made the following findings.

I have considered the Liberato direction and I am told - tell myself that it's [not a] matter [of] preferring one witness over the other. I must, of course, be satisfied that the defendant - before I convict, the defendant is guilty beyond a reasonable doubt. So count 1 was the choking at Casuarina Beach location. Her evidence in court was consistent and plausible. It's found at pages 16 and 17 of the transcript where she described it in some detail.

It was sometime after the event and so she couldn't remember everything, but there was some particular detail that she gave. She was unshaken in cross examination. Interestingly, she said that the choking went for about 20 seconds. It's rare for a witness to give a time of that shortness. Most witnesses say, "yes, he choked me for five minutes and I couldn't breathe." And it's hard to estimate time, but that statement suggests (1) that the complainant was a better estimate at giving time, perhaps, but also that she wasn't trying to embellish the evidence against the defendant.

Throughout this evidence, I do note that I don't believe her answers in respect of the recent Corolla being aimed at the defendant incident, but not withstanding that doubt on that evidence - and even though I gave her a certificate - I - she declined to answer truthfully on that issue. I, nonetheless, don't hold that against her credibility, given her demeanour and the plausibility of her evidence on this and other charges. She said that straight after the choking down at Casuarina he let go and then started crying and apologises. And not long after that, she started recording on the video and he made admissions on that while - sounds like he was crying at the time. "I did let go," was one of the statements that was followed by an expletive, which I won't repeat. It seems to be - perhaps, a term of endearment in some grotesque way that's evident in another exhibit, I think.

"I did let go," which I take to mean he was holding on, and it's inconsistent with his version of events where he was only defending herself (sic) and pushing her away on his - on his evidence, he wasn't holding on to her at all. He was pushing her away. So her version of events which, I believe, were supported by the admissions made by the defendant in exhibit P1, I find that he choked her for about 20 seconds with two hands.

In other subsequent exhibits, she refers to choking. I think it's the interview at her house with Police Officer Newham(?). And she talks about, "Yeah, he's choked me earlier," and that's possibly this incident. In exhibit P2, she's recorded and she describes the incident (inaudible) over the car and said "that I'm going to kill you," which is consistent with her evidence. And in P7 she also described that incident.

I find the defendant guilty of count 1 and I don't accept his evidence on this topic, that she grabbed his hair, he made contact with her throat. I find that to be implausible, particularly given the admissions that he made at the time, straight after the incident. Count 2, 23 December 2022, the assault at her house. She said in court that she was asleep, he came in angry, grabbed her arm.

She tried to get away, he pushed her on the floor. He opened a water and/or iced tea container and poured it on her. That fact wasn't mentioned on the bodyworn video, the water or the iced tea. But having watched that video, much of the content is talking about a domestic violence order and the police keep wanting to go back and get details. "So what happened tonight?" And she started to go into more detail, but then said, "I don't want anything to happen, I just want a DV."

And she stopped herself from talking in too much detail about the assault and that might explain why she didn't mention the water and iced tea to the officers that day. But ultimately, I'm going to find the defendant guilty of this count 2, but I don't find him guilty of the water and iced tea. She said that he grabbed her and pushed her on to the ground. She admits that she spat on him and that she says that he spat on her.

And I accept her evidence - again, she was not - I didn't find she was challenged in cross-examination, and I found her evidence to be credible and her demeanour suggested that she was telling the truth. And his evidence that he went around there, willingly, but found himself in a situation when he couldn't leave and he had to - again, defend himself because she grabbed him by the hair - I find more than unlikely. I find it to be untrue.

Again, I've got Liberato in mind. I'm not just preferring the evidence of one or the other and I am taking the - giving regarding to the tendency. But I see, as alleged by the prosecution in the tendency notice across these other events - and I'm satisfied beyond a reasonable doubt that the defendant is guilty of count 2. Count 3 and 4 is the Wagaman shops, where we've got that P3 exhibit, the text before this happens, where - on his version, she's aggressive and he's defending herself (sic). But the text from here is:

"What's the address, cunt? Pick me up, I'm in Wulagi. Ring now, stop being useless."

"You won't be mad or anything, right? You'll stay calm, because it's Dad's car, okay?"

I take that to mean she's trying to be compliant and keep him - or get him to a calmer state.

"Send me his where you picked him up from, you hungry stupid ho slut."

So utterly offensive, aggressive behaviour from him and compliant efforts by her to try and calm him down. And that's just before what she alleges then is the assault, where he twisted her hand when she finally gets him - gets to pick him up. She grabbed her phone, she's trying to get her phone back. There was a headbutt and he choked her against the fence. P5 are photographs - is a photograph or video of choke marks - or marks on her neck, I should say, that are consistent with her version of events.

Her father picked her up and it's his evidence, whilst that they were then sent to different addresses, which is not overly relevant but it's consistent with him running them around and, perhaps, more consistent with this attitude in P3 of his aggressive attitude, trying to - I guess, an aggressive or difficult attitude. I don't accept his evidence that she was holding his phone or he was holding the phone - holding the phone? She was holding a phone, holding his hair and holding his shirt.

P7, the Clark(?) body-worn video. She reports this incident. Clark said she could see marks on her neck. I find this event happened. It was a prolonged assault. It was an intention assault and that he choked her and I find counts 3 and [4] proven beyond a reasonable doubt, not withstanding the - essentially, one on one evidence.

Last account is the car outside or near the front of her house. 19 February, she made concessions that he could be nice on some occasions. "Yes," she said - she said he wanted her chain back. She was not willing to give it back. She went to walk away and he grabbed the shirt or the necklace and then broke off, and she was injured. The medical notes are consistent with her version. Equally, they are consistent with his version, i.e., they would be the injuries you would except from someone being dragged by a car. His version is that she grabbed on to the car and her version is, he grabbed on to her.

She said he (sic) thought he was going to hug her, which is a little detail that indicates truth. She said he drove away at speed. Johnston's - the witness Johnston said he drove away at speed and I looked at the CCTV carefully and it does look like - it's not a drag race speed, but it was not the 15 kilometres per hour speed that the defendant said. It looked somewhat faster than that. That's about the only utility I can get from that video, even with zooming in.

You can't see much, you can't see a drink being thrown or not thrown. You can't see who is grabbing who, but the car does drive away at a speed that is a fair bit greater than 15 kilometres per hour. And that speed is consistent with the injuries that are evident from the other exhibits. And so his version is that they were calm beforehand. She said she's seeing someone else, he's calm with that. They both agree the relationship ends, they go to Hungry Jack's and get a frozen coke.

He asks for the bracelet back. She says no, then she threw the drink - which is unusual. They were all calm. And suddenly, she's getting angry and throwing a frozen drink. That's unlikely. She punches him. I find that's unlikely. She - he reaches to defend himself and then she holds on to the car as he's driving away. Why would she hold on to the car? I find this to be implausible. It's an extremely dangerous and silly thing to do.

And I - her evidence was she didn't hold on to the car, he grabbed on to her and drove quickly, his foot on accelerator and drove off with her being unwillingly dragged. And I find that happened beyond a reasonable doubt. I find the defendant guilty of count 5.[1] (emphasis added)

• [6] The respondent gave evidence at the trial in which he denied or downplayed his offending conduct, and/or sought to blame the victim. He suggested on each occasion, that the victim was the primary aggressor and that he was acting in self-defence, indicating, the appellant contends, a total lack of acceptance of responsibility, insight and remorse, which was relevant to the assessment of the respondent's risk of re-offending, and the need for community protection, which are in turn relevant to what the appellant contends is the manifest inadequacy of the sentence imposed.
• [7] The trial judge heard sentencing submissions on 6 September 2024 at which time the respondent's counsel acknowledged that a sentence of actual imprisonment was "very much on the cards" and applied for an adjournment to obtain subjective material and a report pursuant to s 103 of the Act for assessment for an ICCO with home detention. The respondent's counsel submitted that such a sentence would be within range given his youth, prior good character, employment, family support, and prospects of rehabilitation.[2] The matter was adjourned to 18 September 2024, reports were received, further submissions were made, and the trial judge sentenced the respondent on that date.

• [8] The trial judge's remarks on sentencing were as follows:

Yes. A lot should be said about this matter because it is so serious and there are aspects to it which are complicated. No priors in effect, breached bail, very traumatic childhood, exposure to drugs and violence and arrests. Both of his parents have been to gaol at various times and his younger brother's been in detention.

And the offending, of course, a lot could be said about that but I don't have time. So if he pleaded not guilty and he was found guilty to five counts, it's hard to identify which is the more serious: grabbing onto his ex-girlfriend while she's on the outside of a car and accelerating; you would think that would be the most serious. But there are two choking charges as well that I found him guilty of, and there are many studies that show how serious that offence and behaviour is.

So the prosecution is right. Actual imprisonment is within the range and I thought about that, and indeed last time, without trying to be clever and scare the hell out of him - hopefully I did - he was remanded for a few hours after he was found guilty. I asked for a supervision report. I did request an intensive Community Correction report. It's not labelled as that, but I emailed the author and he said, "Yes, that is effectively an Intensive Community Correction order," where he's been found suitable.

He's got a new girlfriend with very supportive parents. They must realise if they work in the industry how much effort it's going to be for them over the next few months. Because I am going to impose an intensive Community Correction order with an element of home detention. And so the girlfriend, the parents, to some degree will be working hard and arguably punished as well as the defendant. And I hope it goes smoothly because it will be testing, and if it fails I can go back to that prosecution option of actual imprisonment.

But the Sentencing Act says that Intensive Community Correction Orders are effectively actual imprisonment as well. There are a number of factors pulling in different directions. The one that stands out is his good record - well, putting aside the very serious offending. Good record, despite his upbringing, and a pretty good record, and I'm not sure if it was designed for this or this eventuality, but he's just recently started an apprenticeship as a plumber. That's a major factor that will hopefully keep him out of trouble.

The sentence is for counts 1 to 5, convictions recorded. 9 months' intensive Community Correction order, including 4 months' home detention. Those orders are in the report - the conditions.[3]

• [9] The appellant contends that these reasons are inadequate in that:

(a) they do not include any findings of fact;

(b) they do not contain any assessment of the objective seriousness of the offending;

(c) they do not refer to relevant sentencing principles including, importantly, the need for community protection and general deterrence and, in particular, the effect of the offending on the victim; and

(d) there has been a failure to specify the sentence that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence as required by s 52(4)(b) of the Sentencing Act.

(a) Findings of fact

• [10] The respondent contends that the sentencing remarks should not be read in isolation; that the trial judge made detailed reference to the facts in finding the respondent guilty; and that these should be read with the sentencing remarks.
• [11] The appellant contends that, to the extent that the trial judge impliedly incorporated the factual findings in his verdict judgment as the factual basis for sentencing, those reasons were inadequate because although, in relation to each offence, his Honour set out the competing evidence of the victim and respondent and any other evidence, before providing a brief conclusion stating that he had found the offence established, his Honour did not say whether he accepted all or only some of the victim's evidence and did not positively identify his factual findings in relation to each offence.
• [12] The respondent submits that the parties understood what facts were found for the purpose of the sentence; that is, the prosecution case was established except for the "iced tea"/"waterboarding" particular to count 2. The statement of alleged facts was provided to Community Corrections for the purpose of the s 103 reports and the Prosecutor stated:

MR MCINDOE: Your Honour has found the Crown case to be made out in respect of all counts, except for count 2 in relation to the water and the iced tea allegation, your Honour.[4]

(b) Assessment of the objective seriousness of the offending

• [13] The respondent contends that the sentencing remarks do contain an admittedly brief statement acknowledging that the offending was objectively serious in the following remarks:

A lot should be said about this matter because it is so serious and there are aspects to it which are complicated.

The one that stands out is his good record - well, putting aside the very serious offending.

... it's hard to identify which is the more serious: grabbing onto his ex-girlfriend while she's on the outside of a car and accelerating; you would think that would be the most serious. But there are two choking charges as well that I found him guilty of, and there are many studies that show how serious that offence and behaviour is.[5]

• [14] The appellant contends that the trial judge was in error because, although the Crown made comprehensive submissions concerning the objective seriousness of each offence, including where the offending fell on a spectrum of objective seriousness, and detailed reasons as to why that was so, his Honour made no reference to those submissions, and failed to set out his findings as to the objective seriousness for each offence (to the extent that he made them), and failed to refer to the factors that led to any conclusions.

• [15] The appellant contends that, on the sentencing hearing, after making submissions on the objective seriousness of each count and in particular the seriousness of Count 1 and Count 4 (the s 186AA choking offences) and Count 5 (s 174D recklessly endangering serious harm), and the significant consequences the offending has had on the victim as reflected in the victim impact statement, the prosecutor acknowledged that there were sentencing principles that pulled in different directions and, while conceding that the respondent's moral culpability had been lowered as a result of his upbringing, asked the court to give weight to the "gravely serious offending" and to the principles of general and specific deterrence and denunciation.[6] However, none of these submissions were mentioned in the sentencing remarks; nor do the sentencing remarks reveal what weight (if any) was given to the different relevant sentencing principles.
• [16] Despite the court receiving a lengthy victim impact statement, and despite detailed submissions by the Crown as to the particular physical and psychological harm suffered by the victim, his Honour made no reference to that harm whatsoever.[7] The appellant submits that it is therefore entirely unclear from his Honour's reasons whether he took that matter into account, and if so, what he made of it.
• [17] The respondent contends that it is not open to the appellant to complain of the trial judge's treatment of the victim impact statement, given the prosecutor's statement to the trial judge:

The victim impact statement doesn't go above and beyond the ordinary inferences that your Honour would be making, based on the charges that your Honour is finding - found him guilty of.[8]

However, this remark was actually made by defence counsel.

(d) Failure to comply with s 52(4)(b) of the Sentencing Act

• [18] The appellant contends that a further deficiency in his Honour's reasons is his failure to set out the indicative sentences. Where an aggregate sentence is imposed, the court is required to indicate each sentence that would have been imposed if separate sentences were imposed instead: Sentencing Act, s 52(4)(b).
• [19] The respondent relies on s 53(7) which provides that a failure to do so does not invalidate the sentence. However, the appellant contends that while a failure to comply with s 52(4)(b) does not, in and of itself, invalidate a sentence, such a failure may nonetheless bear on whether the reasons were inadequate. The basis for the requirement in s 52(4)(b) is to allow the parties to understand how the court arrived at a particular sentence, and how the principles of accumulation and concurrency were applied.
• [20] The appellant contends that his Honour's failure to set out the indicative sentences, together with the failure to set out his factual findings, assessment of objective seriousness, and evaluation of the weight to be ascribed to the varying purposes of sentencing, means that one cannot understand how his Honour arrived at an aggregate imprisonment term of only nine months, to be served by way of an ICCO.

• [21] The task required of a sentencing judge is appropriately described by McHugh J in Markarian v The Queen[9] as:

The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.

1. A sentencing judge is not required to refer to every matter considered when sentencing.[10] Nor is a sentencing judge required to refer to each piece of evidence or every argument made by the parties.[11] Matters which are obvious or not in dispute need not be restated. However, a sentencing judge must engage with and make an assessment of the objective seriousness of the offences.[12] The assessment of the objective seriousness of an offence "is quintessentially one for the sentencing judge and is an essential element of the sentencing process".[13]

• [23] In Yeung v R,[14] McCallum J (Hoeben CJ at CL and Simpson JA agreeing) outlined the requirement to provide reasons and the test for the appellate Court at [30]:

While it may be accepted that a bare recitation of the facts and the objective features of the offence may not, of itself, demonstrate adherence to the requirements of the sentencing task, it must equally be accepted, in my respectful opinion, that the failure to attach a specific label to the objective seriousness of the offence will not necessarily demonstrate a failure to undertake the necessary task of making an assessment of objective seriousness as one of the factors relevant to the value judgment as to what is the appropriate sentence in all the circumstances. The task for the appellate Court is to consider whether. reading the sentencing judgment fairly as a whole, there has been a failure to make that essential assessment.

• [24] The approach in Yeung was endorsed by the Court of Criminal Appeal (Grant CJ, Barr and Huntingford JJ) in The King v CH:[15]

It may be accepted that a bare recitation of the facts constituting the offences and a reference to the objective features of the offending does not satisfy the requirements of sentencing. While it is not necessary to undertake a mathematical or prescriptive approach to sentencing, a sentencing judge must make an assessment of the objective gravity of the offences. One of the reasons for that requirement is to ensure that the offender is adequately punished for the offence. However, in undertaking that task it is unnecessary for a sentencing judge to attach a specific label to the objective seriousness of the offence in terms of where it might sit on a range of the scale.

1. In summary, while it is not necessary for a sentencing judge to attach a label along a scale of objective seriousness, a judge must consider the objective seriousness of the offences, and that assessment must be factored into the sentencing exercise. Whether or not that has occurred "is to be judged in light of the reasons of the sentencing judge as a whole."[16]
2. The extent to which a judge must provide reasons depends upon all the circumstances in the individual case,[17] including what submissions were made by parties at first instance.[18]

• [27] In order to determine whether reasons are adequate, they must be read fairly and particular parts have to be read in the context of the reasons as a whole and the manner in which the parties conducted the trial. Reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[19]
• [28] In DL v The Queen,[20] the Court held that what constitutes adequate reasons is informed by the nature of the jurisdiction which the Court is exercising and the particular matter that is the subject of the decision. The reasons must be sufficient to enable an appellate Court to "discharge its statutory duty on appeal from the decision".[21]
• [29] In Garay v The Queen (No 3),[22] McCallum CJ (with whom Collier J agreed) stated at [138]:

It will be a rare case in which the adequacy of the reasons can be determined by reference to the structure of the judgment alone. The provision is concerned not with the quality of the writing but with the quality of the reasoning, which must necessarily be informed by the issues in the case. The statute does not impose a requirement that the judgment be reasoned beautifully; only that the reasoning process be exposed. It is trite that, in determining whether that has occurred, the appellate court must read the judgment fairly, as a whole.

Where a specific submission is put to the sentencing judge, a failure to engage with that submission may lead to error.[23] In Abbas, it was submitted the sentencing judge erred by failing to make a finding about the applicant's prospects of rehabilitation, which was an issue "squarely raised in submissions, and was thus one of which his Honour must have been aware".[24] In upholding the ground of appeal, Bellew J (with whom Bell P and Walton J agreed) at [230] noted that the duty to provide reasons is a "fundamental component of the judicial process".

• [30] Whilst a sentencing judge is not required to structure reasons as if they are a check list which must be "ticked off"[25] when a particular factor is raised in submissions, "a succinct statement as to the approach adopted on sentence in relation to that factor" is required.[26] In Abbas, Bellew J found that, having regard to the detailed submissions which were made on that specific matter, there was an obligation on the sentencing judge to "engage with those submissions and reach a conclusion".[27]

1. It is well established that reasons of a Local Court judge often occur in the context of a busy list and under pressure.[28] Accordingly, appellate court scrutiny must be concerned with the substance, rather than the form, of the judge's reasons.[29] The remarks of the NTCCA (Martin CJ, Angel and Mildren JJ) in Horne v Carlon[30] are apposite:

As a general observation, it must be said that the reasons of the Magistrate are not entirely satisfactory. They are discursive and, at times, lack precise findings and reasons for those findings which are normally to be expected when written reasons for decisions are given. As has recently been observed, it is inappropriate to dismember extempore reasons of Magistrates or subject them to hypercritical analysis: Peach v Bird. Bearing in mind that Magistrates work under considerable pressure which frequently requires the giving of brief oral ex tempore reasons without significant opportunity for reflection or preparation "it is necessary to take a broad view of [extempore reasons] and ascertain the essential thrust of the reasoning processes applied, without being unduly critical of the precise modes of expression used or according them a degree of definitiveness which was never intended." (citations omitted)

1. In written submissions, the respondent gave details of the trial judge's work load during the relevant period. No application was made to adduce additional evidence on appeal and, in any case, I do not think it necessary or desirable to examine the particular judge's work commitments over the relevant period. It may be accepted that judges in the Local Court operate under the pressure of work loads and time constraints far more onerous than the court hearing appeals from that court. Nevertheless, the test remains whether, making due allowance to those work loads and time constraints, the reasons of the Local Court judge "achieved the minimum acceptable standard, articulating the essential ground or grounds on which the decision rests".[31] That minimum standard requires the reasons to be sufficient to "enable the losing party to understand properly the grounds upon which the case was lost",[32] and also be sufficient to enable an appellate court to "discharge its statutory duty on [any] appeal from the decision."[33] Another way of stating the same requirement is that the judge's reasons must enable the reader/listener to understand how the judge arrived at the decision. That minimum standard does not vary with the actual work load of a particular judge.

• [33] In this case, the sentencing judge said, "And the offending, of course a lot could be said about that but I don't have time." If a judge does not have time to deliver reasons which achieve the minimum standard of enabling the parties and others to know the basis upon which the decision has been reached, the options are to adjourn to a date when the time is available, to adjourn another matter to make time available, or to deliver a decision with reasons to follow. (Obviously, the latter option is not practical in sentencing decisions in which the offender needs to understand the reasons for the sentence as it is pronounced.)
• [34] In my view, this minimum standard has not been met by the trial judge's reasons in the present case.

(a) Although it would have been desirable for the trial judge to have found the facts on which he sentenced the respondent and to have specifically set out those facts (either in the judgment or the sentencing remarks), I agree with the respondent's contention that, reading the judgment on the trial decision in conjunction with the sentencing remarks, one can determine that the trial judge sentenced the respondent on the basis that the facts were essentially as given in evidence by the complainant with one exception which the judge explained.

(b) Likewise, although the references to the objective seriousness are sparse, and it would have been desirable for the reasons to have engaged with the prosecutor's detailed submissions about the objective seriousness of the individual offences, it seems to me that the reasons are sufficient to indicate that the judge was proceeding on the basis that the offending was objectively serious.

(c) However, I agree with the submission of the respondent that the reasons are not sufficient to enable the reader/listener to understand the process of reasoning which led the trial judge to impose a sentence of nine months imprisonment to be served by way of an ICCO.

• The trial judge articulated the considerations he took into account which related to the subjective circumstances of the respondent, but the reasons do not enable the reader/hearer to know whether his Honour took into account the harm to the victim and, if so, what weight he gave that.
• Nor do the reasons enable the reader/hearer to know what weight was given to general deterrence, denunciation and punishment, and community protection, and whether his Honour considered that the Bugmy factors also weighed on the side of increasing the need for community protection, as is sometimes (but not always) the case. All that the reader knows about the weight (if any) given to the various relevant sentencing principles by the sentencing judge is his comment:

There are a number of factors pulling in different directions. The one that stands out is his good record - well, putting aside the very serious offending. Good record, despite his upbringing, and a pretty good record, and I'm not sure if it was designed for this or this eventuality, but he's just recently started an apprenticeship as a plumber. That's a major factor that will hopefully keep him out of trouble.

• Although mere failure to comply with s 52(4)(b) does not invalidate an aggregate sentence, I agree with the submission of the appellant that, in this case, the failure means that it is impossible to discern the reasoning process whereby the judge arrived at a sentence of nine months to be served as an ICCO for five serious domestic violence offences or to understand the degree of accumulation or concurrency involved in the sentences.

• [35] The respondent made a distinction between adequacy of reasons and adequacy of the reasoning process and contended that any defect in the present case lay with the reasoning process rather than the reasons and is therefore more appropriately dealt with as a particular of the manifest inadequacy ground of appeal. I do not agree. For the reasons set out above, in my view the judge's reasons do not meet the minimum necessary standard which would enable the parties and others to understand the basis upon which the judge arrived at the sentence imposed.
• [36] The appeal is allowed on Ground 1.

• [37] A Crown appeal against sentence is governed by the principles enunciated in House v The King.[34] In the event that some error has been made in the exercise of the discretion, such as acting on a wrong principle, taking irrelevant matters into account, acting on a mistaken understanding of the facts or failing to take into account some material consideration, the appellate court may exercise its own discretion in substitution. In circumstances where no specific error is evident, but the sentence imposed is unreasonable or plainly unjust, the appellate court may infer that the sentencing discretion has miscarried even in the absence of discernible error. However, in such a case it must be shown that the sentence was clearly and obviously, and not just arguably, inadequate. Appellate intervention on the ground that the sentence is manifestly inadequate is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases. It must be shown that the sentence is so disproportionate to the seriousness of the offending as to demonstrate error in principle.[35]

1. The assessment of the adequacy of sentence requires consideration of all the matters that are relevant to fixing the sentence, including the circumstances of the offending and the personal circumstances of the offender. The benchmark for manifest inadequacy is a 'stringent one, difficult to make good' and an appellate court will 'be astute to enforce the stringency of these tests'.[36] That is because of the need to preserve the broad discretion of sentencing judges in recognition of the difficulty of having to balance 'incommensurable factors bearing on the exercise of the sentencing discretion, [with] those factors ... pulling in different, conflicting and contradictory directions'.[37]

• [39] Even where manifest inadequacy is found, the appellate court retains a residual discretion as to whether the appeal should be allowed and the respondent resentenced. In the exercise of the residual discretion the Court must not take into account any element of double jeopardy in making the decision whether to allow the appeal or impose another sentence.[38]

• [40] Each of the five offences is objectively serious. Although the chocking in count 1 was fairly brief (around 20 seconds) it was accompanied by a threat to kill; the respondent used two hands to choke the victim; and she was unable to breathe or to scream for help. I consider it to be around the mid-range of seriousness for offences of this nature.
• [41] Count 2 is at the lower end of the range of seriousness. It consisted of the respondent grabbing the victim by her arms, spitting on her after she first spat on him, and then pushing the victim to the floor.
• [42] Counts 3 and 4 took place on the same occasion. Count 3 (the assault) consisted of the respondent grabbing the victim's left hand and twisting it hard enough to make her cry; throwing the victim on the concrete while laughing in her face; head-butting her to her body winding her and trying to do so again. It was accompanied by threats and vile and insulting language as well as taking the victim's phone which was later returned broken. The assault was protracted, lasting between 30 minutes to an hour, or possibly even longer. I consider it to be approaching the mid-range of seriousness.
• [43] Count 4 consisted of the respondent grabbing the victim by the throat with both hands and choking her up against a fence with enough force that she was lifted off the ground. The grip was hard enough that she was not able to breathe and the choking left bruising on her neck. I consider it to be at or slightly above the mid-range of seriousness.
• [44] Count 5 is the most serious. The victim leaned into the driver's side window of the respondent's car in anticipation of a hug. When she did, the respondent grabbed her by her shirt and necklace and slammed on the accelerator, dragging the victim up the road. The victim rolled along the road as the respondent accelerated, at a speed that the judge found to be "a fair bit greater than 15 kilometres per hour". The victim was unwillingly dragged up the road for some distance, estimated to be between 30 and 50 metres, before the respondent let go of her. The victim narrowly missed falling under the car and rolled on the road several times. She spent a night in hospital and suffered bruising and grazing to her elbow, knees, feet, shins and behind her shoulder. I consider this to be above the mid-range of seriousness.

• [45] The victim produced a victim impact statement which showed that the victim had suffered significant, long term physical and emotional harm. She said she had "lifelong scars from the physical damage" [the respondent] has done to her. She also detailed the emotional harm she suffered including, deep depression, anxiety, overwhelming fear and betrayal during the relationship. She said she now suffers from flashbacks from the trauma and has nightmares and difficulty sleeping and she continues to experience, suicidal thoughts. She became isolated during the relationship and now finds it hard to socialise and to concentrate. She is scared to go into public places. The offending has affected her ability to work and study. She concludes:

My life has changed negatively and completely since all this happened. The physical and emotional impact of domestic violence has been devastating. Physically, I experienced injuries and was in hospital. Emotionally I have suffered from trauma, anxiety, sense of hopelessness, and a diminished sense of self-worth, which have significantly affected my daily life and overall well-being. The offender's actions have not only caused immediate harm but have also created long-term challenges that I continue to face.

• [46] The respondent had no prior criminal history when dealt with for this offending and, at least for the first offence in time, must be considered to have been of good character. However, as the appellant pointed out, prior good character is of less weight in a situation of repeated offences over a period of time, than when the offence committed is an isolated one.
• [47] The respondent had a difficult upbringing, being exposed to trauma from a very young age. As a child he was exposed to domestic violence and to the use of prohibited drugs (heroin) inside the household. The respondent's father was imprisoned for domestic violence against his mother and, when he was growing up, his mother and father were both in and out of prison. As a result, he was raised primarily by his grandmother. He recalls being pulled over in the family car by police and his mother being arrested, and his nana having to come and pick him up from the police station at the age of seven.
• [48] He has two siblings.
• [49] He has been actively employed for all of his adult life at various jobs ranging from working at KFC to working at the Mercure bartending, to working on a barge taking goods over to Western Australia, to working as a concreter and then most recently, taking up a plumbing apprenticeship. At the time of sentencing, he was employed as an apprentice plumber.
• [50] At the time of sentencing the respondent had been with his then partner for ten months. It was said to be a very positive, loving relationship.

• [51] Given the serious nature of the offending and the prevalence of this kind of domestic violence in the Northern Territory, denunciation, general deterrence and punishment are important sentencing principles and must be given due weight, as does community protection.
• [52] Given the respondent's dysfunctional and disadvantaged upbringing, the principles in Bugmy apply to lessen his moral culpability for the offending and, given his lack of prior offending, this consideration is not materially counterbalanced by any increased need for community protection. His lack of prior offending also reduces the need for personal deterrence but certainly does not eliminate it, particularly given the repeat nature of this offending.
• [53] The respondent is a young man. The principles that relate to sentencing for young offenders are applicable and due weight must be given to rehabilitation. His prospects of rehabilitation, the defence submitted, were positive. Certainly, employment and a stable relationship are positive factors.
• [54] The respondent pleaded not guilty, as is his right, and is not entitled to any reduction in his sentence for willingness to facilitate the course of justice. Nor can he be said to be remorseful. Despite defence submissions to the effect that the respondent had conceded that some of his behaviour was unreasonable, the fact remains that he pleaded not guilty and gave evidence at the trial essentially attempting to exonerate himself and place the blame for the offending on the victim.

• [55] Given all of these factors, the aggregate sentence of nine months imprisonment to be served as an ICCO with a four months home detention condition is not just arguably, but manifestly inadequate. The sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.

• [56] The respondent submits that even if manifest inadequacy is established, the Court should dismiss the appeal pursuant to the residual discretion.

1. The Crown bears the burden of making out both the ground of appeal and the case for the residual discretion not to be exercised.[39] However, in some cases the respondent may also bear an evidential burden. As the CCA said in R v Singar:[40]

It must also be recognised that there is a distinction between the legal and evidential onus. The legal onus of negating any reason why the discretion should be exercised will remain always on the Crown. In some cases, the facts and circumstances relevant to that issue will be evident from the material already before the appellate court. In other cases, the Crown will have an attendant burden of adducing the evidence necessary to negate any reason for the exercise of the discretion. In some cases, the respondent to such an appeal may, depending upon the preponderance of the evidence, also carry an evidential onus of adducing or pointing to evidence which demonstrates that the discretion should be exercised in his or her favour.

• [58] The respondent relies upon the following matters in response to the Crown's onus to overcome the hurdle of the residual discretion:

(a) the respondent's youth, background of disadvantage and prospects of rehabilitation are submitted to be special and countervailing factors amounting to "special circumstances";

(b) resentencing the respondent would interference with rehabilitation; and

(c) it is submitted that there is no wider point of principle involved on the appeal.

• [59] The respondent relied on the fact that, at the time the appeal was heard, the respondent was employed as an apprentice plumber and contended that his prospects of rehabilitation, remorse and insight provide overwhelming countervailing considerations for the Crown to overcome for the residual discretion not to be exercised.
• [60] I do not accept that the respondent has displayed remorse or insight into his offending given the combination of his not guilty plea and the fact that he gave evidence at the trial positively denying the offending and casting the blame for what occurred on the victim.
• [61] The respondent's continued employment as an apprentice plumber would be a relevant factor in considering the potential exercise of the residual discretion; it would also be a relevant factor on any resentencing exercise. However, the court has been made aware that the respondent lost this employment for reasons which were not specified. He has applied for two other apprenticeships and is employed part time on a casual basis in the meantime.

• [62] The respondent contends that "the effect of resentencing on progress towards the respondent's rehabilitation" is a relevant consideration when considering whether to exercise the residual discretion.[41] So much may be accepted. It may also be accepted that this is of particular relevance to young offenders.[42]
• [63] The respondent contends that he has progressed well on a Home Detention Order since sentencing, "indicating a continuation of the positive trajectory apparent at sentence". The respondent contends that any interference with the respondent's sentence risks extinguishing the motivation that he has shown to date, as well as his ongoing employment.
• [64] Again, these factors would be relevant on a resentencing exercise as well as when considering whether to exercise the residual discretion.

• [65] Finally, the respondent contends that there is no additional point of principle on this appeal other than inadequacy of the sentence and that any necessary guidance to sentencing judges can be achieved by this Court stating that the sentence under appeal was manifestly inadequate but ought not be changed in this case because of the danger of interfering with the respondent's rehabilitation.
• [66] So far as this last submission is concerned, the limiting purpose of Crown appeals to lay down sentencing principles, extends to correcting sentences so disproportionate to the seriousness of the offending as to constitute an error in point of principle.[43] Further, as the New South Wales Court of Criminal Appeal said in R v O'Connor:[44]

Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.

Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative respondents. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen (2005) 228 CLR 357 at [82] per McHugh J. (emphasis added)

• [67] The principles to be applied in considering the exercise of the residual discretion have recently been set out by the CCA in Singar:[45]

Although the category of factors that bear upon the residual discretion are not closed, rarity, the frequency of Crown appeals and the distress and anxiety which the respondent might suffer from being exposed to the possibility of a more severe sentence are no longer relevant considerations following the abolition of double jeopardy. The factors which remain well-recognised as relevant considerations include:[46]

(a) delay by the Crown in lodging the appeal;

(b) where the Crown has conducted the case on appeal on a different basis from that pursued at first instance, and particularly where the Crown requests the appellate court to set aside the sentence on a ground conceded in the court below;

(c) delay in the resolution of the appeal;

(d) the fact a non-custodial sentence was imposed on the offender at first instance;

(e) the fact the non-parole period imposed at first instance has already expired, or the respondent's release on parole is imminent;

(f) the fact the offender has made substantial progress towards rehabilitation and/or any identifiable deleterious effect of resentencing on progress towards the respondent's rehabilitation;

(g) where resentencing would create disparity with a co-offender;

(h) the deteriorating health of the respondent since sentence;

(i) where any increase to the sentence would be so slight as to constitute "tinkering";

(j) where the guidance provided to sentencing judges will be limited, for example, because the proceedings are subject to non-publication orders, and the re-sentence will result in injustice; and

(k) where the general circumstances of the case or the category of offence is unlikely to arise again. (citations omitted)

• [68] There has not been any undue delay in the lodging or resolution of the appeal, and it is not contended that the Crown is arguing the appeal on a basis that was conceded below.
• [69] There is no non-parole period which is due to expire and the respondent is not in custody and due to be released. There is no co-offender and so resentencing would not create any disparity with a co-offender. It is not contended that the respondent is in ill health or that his health is deteriorating.
• [70] It cannot be said that the guidance provided to sentencing judges will be limited: the proceedings are not subject to non-publication orders and, unfortunately, it cannot be said that the category of offence is unlikely to arise again. This kind of domestic violence offending is all too prevalent in the Territory.
• [71] Nor will any increase in sentence amount to tinkering given that the sentence imposed is so far removed from a sentence that would be appropriate for the objective seriousness of the offences.
• [72] The remaining considerations may be said to favour exercising the residual discretion: a non-custodial sentence was imposed by the trial judge and it would appear that the respondent has made progress towards rehabilitation. However, both of these factors are also relevant to the structure of any sentence to be imposed on resentencing.
• [73] The appeal will be allowed on ground 2. The sentence imposed by the Local Court will be set aside. I propose resentencing the respondent.

On count 5, the respondent will be convicted and sentenced to a term of imprisonment for 2 years and 6 months.

On count 4, the respondent will be convicted and sentenced to a term of imprisonment for 2 years.

On count 3, the respondent will be convicted and sentenced to a term of imprisonment for 18 months with 3 months to be served cumulatively upon the sentence for count 4.

(Sentence for counts 3 and 4: 2 years and 3 months)

• [76] 3 months of the sentence for counts 3 and 4 is to be served cumulatively upon the sentence for count 5.

On count 1 the respondent will be convicted and sentenced to a term of imprisonment for 18 months with 3 months to be served cumulatively upon the sentence for counts 3 and 4.

On count 2, the respondent will be convicted and sentenced to a term of imprisonment for 3 months with 2 months to be served cumulatively upon the sentence for count 1.

• [79] The total effective term of imprisonment is 3 years and 2 months.
• [80] I have directed greater concurrency between the sentences than would otherwise be warranted to take into account the totality principle and ensure the final sentence is not crushing.
• [81] I have received a s 103 supervision report which assesses the respondent as suitable for supervision in the community, although noting that his compliance with the Intensive Corrections Order was unsatisfactory due to his numerous failures to report and not providing valid reasons. The author of the report noted that the respondent was reluctant to undertake the Men's Behaviour Change program.
• [82] I agree with the appellant's submission that the objective seriousness of this offending would ordinarily warrant a period of actual imprisonment, not served in the community. However, in view of the time that has passed since the imposition of the original sentence, the fact that the respondent has served four months home detention, and so as not to interrupt the respondent's progress toward rehabilitation, disrupt his employment and jeopardise his chances of obtaining another apprenticeship, I direct that the sentence be wholly suspended on the following terms and conditions:

(1) I fix an operational period of 3 years if the respondent is to avoid being dealt with under s 43 of the Sentencing Act.[47]

(2) During the first 18 months of the operational period, the respondent is to be under the supervision of a probation and parole officer and obey all reasonable directions of a probation and parole officer.

(3) The respondent is to undertake the Men's Behavioural Change program and do nothing to cause his early discharge from that program.

(4) The respondent is to undertake assessment, counselling and/or treatment as directed by a probation and parole officer provided that any such assessment, counselling and/or treatment is not to interfere with his employment if he is employed.

• [83] As well as the factors outlined above, I consider that a lengthy operational period will have the additional benefit of testing the respondent's asserted change of attitude towards women[48] and providing him with an incentive to consolidate that change of attitude over an extended period of time. If he commits another violent offence against a woman in the operational period, the likelihood is that he will have to serve the sentence I have imposed and suspended. Those supervising the respondent should ensure that he reports as and when directed or face breach proceedings.

[6] Transcript of proceedings (06.09.2024) at 26

[7] Transcript of proceedings (06.09.2024) at 21 - 22, 24 and 27

1. [10] R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66 at [63] per Kyrou AJA (Neave and Redlich JA agreeing)
2. [11] Firth v The Queen [2018] NSWCCA 144 at [61] per Wilson J (Simpson AJA and Bellew J agreeing), citing AMZ v R [2013] NSWCCA 6 at [25]
3. [12] The King v CH [2024] NTCCA 10 at [44] (per Grant CJ, Barr and Huntingford AJ).
4. [13] R v Walker [2023] NSWCCA 219 at [52] citing Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; R v Campbell [2014] NSWCCA 102; Yeung v R [2018] NSWCCA 52 ("Yeung"); Kochai v R [2023] NSWCCA 116

[15] [2024] NTCCA 10 at [44]

1. [16] Miller v R [2023] NSWCCA 267 at [24] per Kirk JA (Rothman and N Adams JJ agreeing)
2. [17] Splinter v Dunne [2024] NTSC 24 at [35] (Blokland J) ("Splinter"); Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246 ("Abbas") at [231] (Bellew J with whom Bell P and Walton J agreed)
3. [18] Abbas at [232] (Bellew J with whom Bell P and Walton J agreed)

[19] R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66 at [62]

[20] [2018] HCA 26; (2018) 266 CLR 1

[22] [2023] ACTCA 2

[25] Abbas at [233] citing Taylor v R [2020] NSWCCA 46 at [86] - [87]

[26] Abbas at [233] citing Taylor v R [2020] NSWCAA 46 at [86] - [87]

1. [28] See Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 at 479; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWC 343; [2006] NSWSC 343; 67 NSWLR 402 at 407; Poidevin v Coutts [2024] ACTSC 91 at [88]
2. [29] Wolter v Broomhall [2023] ACTSC 331 at [63] per Baker J, citing Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 at [26], citing Acuthan v Coates (1986) 6 NSWLR 472 at 479

[30] [2007] NTCA 2

1. [31] Poidevin v Coutts [2024] ACTSC 91 at [100] per Taylor J, citing O'Connell v McMennemin [2014] ACTSC 112 at [77]

[33] DL v The Queen [2018] HCA 26; 266 CLR 1 at [32]

[34] (1936) 55 CLR 499

[35] The Queen v Kahu-Leedie [2022] NTCCA 4 at [21]

1. [36] DPP v Kazarisis (2010) 31 VR 636 at [127] - [128]
2. [37] Craft v The Queen [2021] VSCA 66 at [25]

1. [39] CMB v Attorney General for New South Wales (2015) 256 CLR 346 at [33] - [34] (French CJ and Gageler I), see also at [56] (Kiefel, Bell and Keane JJ). See also R v Hernando [2002] NSWCCA 489; (2002) 136 ACrimR 451 at [12] (Heydon JA); Cumberland v The Queen [2020] HCA 21; (2020) 94 ALJR 656 at [33] (the Court); R v EG [2022] NTCCA 10 at [139]

[40] [2025] NTCCA 1 ("Singar") at [63]

[41] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [43] (French CJ). See also R v Roe [2017] NTCCA 7; (2017) 40 NTLR 187 at [114] (Grant CJ and Southwood I); R v Irwin [2020] NTCCA 3 at [24] - [25] (the Court).

[42] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634 at [111] (the Court); DPP v Lombardo [2022] VSCA 204; (2022) 102 MVR 19 at [108(e)] (the Court).

[43] Lacey v Attorney General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [16]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [61] - [62]; The Queen v Kahu-Leedie [2022] NTCCA 4 at [21]; Singar [2025] NTCCA 1 at [59]

[44] R v O'Connor [2014] NSWCCA 53 at [88] - [89] cited in Singar at [65]

[46] Judicial Commission of New South Wales, Sentencing Bench Book, para [70] - [100]

[47] The operational period of three years is shorter than the term of imprisonment which has been suspended because the respondent has completed four months home detention and has been subject to supervision under the sentence imposed by the Local Court, albeit that his compliance has been said to be unsatisfactory.

[48] At the date of hearing of the appeal, the court was told the respondent was in a new relationship that was a stable and loving relationship, a marked contrast to his controlling and abusive attitude towards the victim of these offences.