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[2009] NTSC 67
respondent. Appeals dismissed; the sentence of five months imprisonment upheld and the earlier suspended sentence restored and ordered to be served concurrently with the five-month sentence (see [3], [31]).
The appellant, previously given a suspended prison term for large-scale kava possession, joined others on a trip and helped load a small amount of kava into a vehicle; he was later caught with 119 kg of kava, pleaded guilty, and was sentenced to five months. The Magistrate found he breached the suspended sentence, restored the earlier nine-month sentence, and ordered both sentences to be served concurrently. The Supreme Court dismissed the appeal: the five-month term was not manifestly excessive, and statutory policy under s 43(7) supported restoring the suspended sentence because the breach was a further like offence and no circumstances since suspension made restoration unjust.
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1,788 words · generated 27/07/2026
Loni Latu was originally sentenced on 3 November 2008 for possession of a commercial quantity of kava (270 kg). The sentencing Magistrate imposed nine months imprisonment but suspended it after the appellant had served seven days, with an operative suspension period of 18 months from 1 November 2008 ([1]). On 12 May 2009, six months into that suspension, Latu travelled from Darwin to an area south of Katherine with three co-offenders and assisted by placing one bag of kava into a vehicle. Police later found approximately 119 kg of kava in the vehicle; Latu was arrested and charged ([6]–[7]).
No linked legislation citations have been extracted yet.
On 10 July 2009 Latu pleaded guilty to the May offence and was sentenced by Mr Wallace SM to five months imprisonment. The Magistrate also found that Latu had breached the earlier suspended sentence and restored the balance of the nine-month sentence (seven days already served), but ordered that the restored sentence and the five-month sentence be served concurrently ([2]–[3]). Latu appealed, contending that the five-month sentence was manifestly excessive and that restoration of the suspended sentence in full was unjust ([4]). Martin (BR) CJ dismissed both grounds and affirmed the sentencing orders ([31]).
Two central questions determined the outcome:
On the first question the Court examined whether the Magistrate erred in principle or imposed a sentence outside the discretionary range. The Magistrate accepted that Latu played a minimal role, described as "very low and minimally responsible", yet rejected the explanation for involvement as "abjectly inadequate" ([11], [16]). The Supreme Court found no error in the Magistrate's approach: relevant mitigating facts (including the appellant's plea and personal circumstances) had been considered; the fact the Magistrate did not expressly quantify a discount for the plea did not demonstrate error of principle; and a five-month term was within the available sentencing discretion given the circumstances ([12]–[17]). Consequently, the mere fact that the Supreme Court might have sentenced differently was not sufficient to establish manifest excess ([30]).
On the second question the Court turned to s 43(7) of the Sentencing Act, which sets a presumption that a court should restore a suspended sentence on proof of breach unless, having regard to all circumstances since suspension (including facts of any subsequent offence), it would be unjust to do so ([18]). The Court followed and applied the guidance in Bukulaptji v The Queen (NTCCA) which identified a non-exhaustive list of relevant factors such as the nature of the breach, whether it was trivial, whether it demonstrates a disposition to disobey the law, whether the breach was of the same nature as the original offence, the length of time of compliance, and surrounding circumstances ([20]). Here, Latu's breach involved further commission of the same type of kava offence during the suspension; the breach was not trivial; and no post-suspension circumstances made restoration unjust. The Court also noted the practical tempering effect of the Magistrate ordering the sentences to be served concurrently, Latu would not serve additional time for the May offence but would be required to serve the original sentence because he had been offered the opportunity to reform and failed to do so ([21], [23], [25]–[27]). Accordingly restoration was open and not unjust ([27]).
Before this decision, the applicable principles on restoration of suspended sentences under the Sentencing Act and the approach to manifest excess were already articulated in prior Northern Territory authorities, notably Bukulaptji v The Queen which set out relevant considerations under s 43(7) ([18], [20]). The Court in Latu applied and followed Bukulaptji, reinforcing that:
After Latu the law in the Northern Territory as to restoration remains consistent with Bukulaptji: a restoration will be appropriate where the circumstances since suspension do not make restoration unjust, particularly where a breach involves a further like offence and no mitigating circumstances exist that would render enforcement unjust. Latu underscores that restorative orders may be ordered even where the offender's role in the subsequent offending is minimal, provided other factors (knowledge, willingness to participate, timing within suspension) indicate more than a trivial breach ([21]–[24]).
On the sentencing front, Latu reiterates the appellate principle that an appellate court will only intervene for manifest excess where there is error of principle or the sentence lies outside the permissible range; disagreement by the appellate judge with findings of mitigation accepted at first instance does not demonstrate error ([12], [13], [30]).
"the appellant's 'part in the possession' as at a 'very low and minimally responsible level.'" ([11])
"the reason was an 'abjectly inadequate excuse'." ([16])
"Section 43(7) discloses a clear legislative policy that the starting point ... is that the offender should serve the sentence which was suspended." ([18])
"For a court to fail to respond appropriately to breaches would be to undermine the integrity of the sentencing regime ..." ([18])
"In effect, the appellant is not being required to serve any period of custody for the second offence, but ... he is being required to serve the original sentence ..." ([25])
This decision is directly engaged where:
Practitioners should expect Latu to be binding (or highly persuasive) where the breach involves re-offending of the same character as the original offence and where the offender had knowledge of the purpose of the trip or operation even if his physical contribution was small.
Latu itself applies and follows Bukulaptji. In Latu the Court emphasised the statutory presumption in s 43(7) and the importance of not undermining the suspended sentence regime. Subsequent sentencing decisions in the Territory that involve restoration under s 43(7) will look to Latu alongside Bukulaptji for the hierarchy of factors and the central proposition that breaches involving further like offences will ordinarily justify restoration unless compelling circumstances arising after suspension indicate injustice.
Where later courts consider a minimal role in subsequent offending, Latu demonstrates that minimal physical participation does not automatically render the breach trivial: knowledge, travel, and the decision to join a criminal enterprise while under suspension may justify restoration. The decision also illustrates appellate restraint: an appellate court will not substitute its view of mitigation for that of the sentencing judge absent error.
(Readers should consult later Northern Territory authorities for more recent treatment, but the Latu judgment is consistent with the reasoning in Bukulaptji and retains persuasive weight on restoration under s 43(7).)
Degree of minimality required for a breach to be 'trivial': Latu confirms that minimal physical acts can still be non-trivial where knowledge and choice are present. However, delineating the threshold between truly trivial breaches (e.g. technical non-compliance with non-criminal conditions) and non-trivial breaches involving small acts of participation remains fact-dependent, and future cases will further delineate that boundary ([21], [22]).
How comparative sentences for co-offenders may influence a restoration decision: Latu rejected the contention that disparity with a co-offender's outcome established injustice because restoration enforces the original sentence (which was for different, earlier offending). However, where restoration would produce a demonstrably gross disparity in totality of punishment compared with proximate co-offenders, future courts may be asked to consider whether that produces an 'unjust' result within s 43(7). Latu indicates such a submission requires careful framing and is unlikely to succeed simply because sentences differ ([28]–[29]).
Quantification of credit for guilty pleas in Magistrates' sentencing remarks: The Court reiterates that a sentencing judge's failure to identify an explicit numerical allowance for a guilty plea is not automatically an error of principle, provided the plea was considered. Still, appellate practice increasingly encourages explicit allowances and clarity in sentencing remarks; how strictly future courts will enforce such expectations in the Territory remains for later adjudication ([12]).
Interaction between cultural explanations for offending and 'abjectly inadequate' reasoning: Latu rejects a cultural-excuse explanation as inadequate on the facts. The decision signals that cultural pressures will not easily excuse re-offending under suspension, particularly where the offender has clear knowledge of the illegality and the consequences. The degree to which cultural context can mitigate will continue to be a live issue on sentencing.
Conclusion: Latu v McPherson; Latu v Marshall reinforces the statutory presumption in favour of restoring suspended sentences under s 43(7) where breach involves further like offending, confirms the limits of appellate intervention for manifest excess, and clarifies that minimal physical participation does not guarantee triviality when knowledge and choice are present.
Breach of suspended sentence - further offending of similar nature within short period - role in subsequent offending 'minimal' - full restoration of suspended sentence - whether Magistrate erred - whether sentence was manifestly excessive - appeal dismissed.
Kava Management Act 1998 (NT); Sentencing Act 1995 (NT), s 43(7).
Bukulaptji v The Queen [2009] NTCCA 7, discussed.
Lawrie v The Queen (1992) 59 SASR 400; Marston v The Queen (1993) 60 SASR 320; R v Anthony [2007] NTSC 62; (2007) 22 NTLR 36; R v Buckman (1988) 47 SASR 303, referred.
Respondent: Office of the Director of Public Prosecutions
Latu v McPherson; Latu v Marshall [2009] NTSC 67
No. JA 32 of 2009 (20916100); JA 33 of 2009 (20829974)
[1] On 3 November 2008 the appellant pleaded guilty to a charge of possessing a commercial quantity of kava (270kg) between 29 October 2008 and 1 November 2008. A sentence of nine months imprisonment was imposed by Mr Carey SM, suspended after the appellant had served seven days. The operative period of the suspension was 18 months from 1 November 2008.
[2] In breach of the suspended sentence, on 12 May 2009 the appellant committed the offence of possessing a commercial quantity of kava (119kg). On 10 July 2009 the appellant pleaded guilty to that offence and a sentence of five months imprisonment was imposed by Mr Wallace SM.
[3] At the time of sentence on 10 July 2009, the learned stipendiary Magistrate found that the breach of the suspended sentence of 3 November 2008 was proven and restored the balance of the sentence which was seven days less than nine months. His Honour ordered that the restored sentence and the sentence of five months imprisonment for the later offence be served concurrently.
[4] The appellant appeals against the sentence of five months imprisonment on the basis that it is manifestly excessive. The appellant also appeals against the restoration of the previous suspended sentence on the basis that restoration of the entire sentence held in suspense was unjust.
[5] For the reasons that follow, the appeals are dismissed.
[6] The facts in relation to the May offending were presented to the Magistrate by the prosecution in the following terms:
"During the afternoon and evening of 12 May 2009, the [appellant] travelled to a destination south of Katherine with the co-offenders, Filiatu Fe'Nua, Seminu Ha'Villa and Levi Asile, where they retrieved a quantity of kava that had been hidden in bushland previously by persons other than the [appellant].
About 1:55 am on Wednesday, 30 May 2009, the [appellant] and co-offenders returned and were travelling northbound on the Stuart Highway past the Katherine Council Chambers where they were stopped by police. Co-offender, Asile, who was driving, was subjected to a roadside breath test. Asile provided a negative result. After a brief conversation with the co-offenders it was revealed that there was a quantity of kava in the vehicle.
A search of the vehicle revealed two large white feed bags in between the front and rear seats amongst the [appellant] and co-offenders containing kava. Several further large bags of kava were also located in the boot of the vehicle. The [appellant] and co-offenders were arrested and conveyed to the Katherine Police Station where they were lodged in cells until the rest of the investigations [could] take place. The kava was seized and weighed with a total approximate weight of 119 kilograms, 81 of which was divided into about 4000 individual 20 gram deal size bags.
Later the same afternoon, the [appellant] participated in a record of interview during which he made admissions to travelling from Darwin knowing the intention was to pick up kava south of Katherine. The [appellant] further admitted to assisting the co-offender[s]. The [appellant] was later charged and refused bail to appear in court. The entire amount of kava seized was a commercial quantity as defined in the Kava Management Act. The [appellant] is not the holder of a kava licence to import, supply or possess kava."
[7] The facts were agreed by counsel for the appellant with the explanation that the admission to providing assistance was an admission to assisting the co-offenders in loading the kava into the vehicle. Counsel informed the Magistrate that the appellant was asked if he would help load the kava into the vehicle and he picked up one bag and put it in the car.
[8] The appellant is 47 years of age and is of Tongan origin. The Magistrate was told that the appellant came to the Northern Territory for the Arafura Games to meet up with fellow Tongans who were competing in weight lifting. As counsel put it, after meeting "some of the Tongan boys up here", the appellant was invited to join them on a trip to Katherine. He asked why and was told "We're going to get some kava". Although he was aware of the purpose of the trip, counsel put to the Magistrate that the appellant had no idea of the amount of kava that would be involved or the purpose of obtaining it.
[9] Counsel put to the Magistrate that he, counsel, "quizzed" the appellant about the fact that he was on a suspended sentence. The submissions continued:
"[The appellant] said, 'Well, I had nothing to do with it and it's rude for me to not got with them. They would've thought I didn't like them.' So apparently within the Tongan culture and community, it would've been a slight not to go."
[10] As to matters personal to the appellant, counsel informed the Magistrate that the appellant had worked as a truck driver running his own business for many years and was a hard worker. He is married with ten children, some of whom still require support. A number of references were tendered which spoke very highly of the appellant and of his valuable contribution to the Tongan community.
[11] The submissions of counsel were not contested by the prosecutor. The Magistrate accepted the version advanced in submissions and correctly described the appellant's "part in the possession" as at a "very low and minimally responsible level." However, while not rejecting the reason advanced for not refusing to accompany the other persons to Katherine, the Magistrate found that the reason was an "abjectly inadequate excuse".
[12] As to the imposition of the sentence of five months, I am unable to discern any error in the approach of the Magistrate. His Honour had regard to all the relevant facts and specifically mentioned the minimal role played by the appellant. Ground 3 complains that his Honour placed insufficient weight on the plea of guilty and the personal circumstances of the appellant, but in my view that ground is without substance. While the Magistrate did not specifically refer to the plea of guilty, there is no reason to suppose that his Honour overlooked that factor. Although appellate courts have encouraged the identification of a specific allowance in respect of a plea of guilty, a failure to do so is not an error of principle.
[13] In the absence of discernable error, the appeal against the sentence of five months imprisonment can only succeed if error can be inferred. The appellant submitted that error can be inferred because the sentence of five months is manifestly excessive.
[14] On the basis of the facts accepted by the Magistrate, the appellant played a minimal role in connection with the possession of the kava. However, he did so six months into a suspended sentence for a serious offence involving kava. The offence was planned by others in advance and the appellant agreed to become involved by accompanying the co-offenders on a trip from Darwin to Katherine knowing that the others were making the trip for the purpose of obtaining kava.
[15] Counsel submitted that the appellant had no idea of the amount to be obtained and whether it would be of a sufficient quantity to amount to an offence. Given his experience with kava, and given the 600 kilometre round trip involved, at the least the appellant must have appreciated that it was highly unlikely that the others would not be embarking on the trip unless a significant quantity of kava was involved. He must also have realised that it was highly likely to involve committing an offence.
[16] In reality, the appellant had no reason whatsoever to become involved. He had every reason to decline the invitation to travel to Katherine. He was not only on a suspended sentence for an offence involving kava, but it was a suspended sentence imposed in the court of the very town to which he had been invited to travel. The Magistrate accepted the reason advanced, but correctly described it as "abjectly inadequate". If I had been in the position of the Magistrate, I would have gone further and rejected the reason advanced.
[17] On the basis of the facts found by the Magistrate, I am not persuaded that the sentence was manifestly excessive. In my view it was open to the Magistrate to impose a sentence of imprisonment and the period of five months is within the range of the sentencing discretion. It was also open to his Honour to decline to suspend the sentence or part of it.
[18] Section 43(7) of the Sentencing Act directs that the Court shall make an order restoring the sentence held in suspense and order the offender to serve the sentence "unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence ...". This provision in the legislative scheme was discussed by the Court of Criminal Appeal in Bukulaptji v The Queen[1] where emphasis was placed upon the importance of a sentencing court not undermining the integrity of the sentencing regime. Riley J said:[2]
"[33] Section 43(7) discloses a clear legislative policy that the starting point for a court dealing with a breach of a condition of a suspended sentence is that the offender should serve the sentence which was suspended. The fact that the sentence is suspended and hangs over the head of the offender provides an inducement to the offender to comply with the terms of the order and maintain a law-abiding life. The sanction for failure is the restoration of the obligation to serve the suspended term of imprisonment. That being so a court 'will not lightly interfere with the ordinary consequence of a breach'.[3] For a court to fail to respond appropriately to breaches would be to undermine the integrity of the sentencing regime and reduce the deterrent impact of such sentences upon others.[4]"
[19] The decision as to whether it would be unjust to restore the sentence is to be determined by having regard to the "circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence ...". However, those circumstances do not mean that the nature of the original offending is to be ignored. That offending provides the context in which the breach and the potential consequences are considered.[5]
[20] In Bukulaptji Riley J identified a number of the factors to be taken into account:[6]
"(a) the nature and terms of the order suspending the sentence;
(b) the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;
(c) whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(d) whether the breach demonstrates a continuing attitude of disobedience of the law;
(e) whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;
(f) the length of time during which the offender observed the conditions;
(g) the circumstances surrounding or leading to the breach;
(h) whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;
(i) whether the offender had been warned of the consequences of a breach; and
(j) the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach."
[21] In the matter under consideration, while the appellant's role in the offence was minimal, nevertheless he knowingly became involved in a serious offence and the breach cannot be regarded as trivial. This was not a breach of a condition such as failing to comply with directions of a probation officer. The breach involved commission of a further offence of the same type for which the suspended sentence had been imposed.
[22] Counsel submitted that the breach did not evince an intention to disregard the obligation to be of good behaviour nor demonstrate a continuing attitude of disobedience of the law. I do not agree. At the least, the appellant must have realised it was highly likely that an offence involving kava was about to be committed and, without good reason, he was prepared to become involved by accompanying the other persons in a lengthy journey to obtain the Kava.
[23] Counsel submitted that there is a "gross disparity" between the conduct involved in breaching the suspended sentence and the sentence to be restored. At times, this submission verged on a proposition that the appellant was being required to serve almost nine months imprisonment for the minimal role he played in lifting one bag of kava into a car. This submission is to misunderstand the sentencing scheme. The appellant was not being sentenced to nine months imprisonment for his role in May 2009. The sentence of nine months imprisonment was the appropriate sentence for the original offending in November 2008 and suspension of service of that sentence was intended to provide an inducement to reform.[7] Having been given that opportunity, the appellant failed to reform with the consequence that he became liable to serve the sentence which the sentencing court regarded as the appropriate sentence for the offending. The fixing of that original sentence had nothing to do with the subsequent offending in May 2009.
[24] In my opinion, there is no gross disparity between the conduct that amounted to the breach and the sentence of nine months to be restored. The circumstances under consideration are well removed from the circumstances in Bukulaptji where a breach of a condition of suspension would have resulted in service of two years and nine months imprisonment.
[25] The Magistrate exercised leniency in directing that the sentence of five months and the restored period be served concurrently. In effect, the appellant is not being required to serve any period of custody for the second offence, but by virtue of his subsequent offending, he is being required to serve the original sentence that was regarded as the appropriate sentence for his previous offending.
"Mr Latu, suspended sentences are supposed to stop those subject to them being tempted into criminal behaviour again. The community would expect and hope that anybody who is under a suspended sentence for possession of a commercial quantity of kava, would be alarmed, afraid and seriously on guard when the purpose of this trip to Katherine was mentioned, namely, to pick up some kava.
We would expect you, I think, to say, 'what', and to ask your companions whether they knew that kava was illegal - of course, in the circumstances of this offence, it's perfectly clear they knew that well and that's why the kava was hidden in the bush - to point out to your friends that it's a serious offence in the Territory, to tell them that you're under a suspended sentence for kava and that, however rude it may seem, you would have to decline to their invitation because no way in the world were you going to put your neck in the noose and get yourself at risk of breaching that suspended sentence.
I don't think that's a whole lot to expect and the only reason put forward for you not being sensible and looking after yourself is that you would have found it rude, impolite, contrary to Tongan expectations to back out of that trip under the circumstances. Mr Latu, that seems to me to be an abjectly inadequate excuse for getting yourself involved in this offending ..."
[27] The Magistrate concluded that there was "just [no] reason of justice whatsoever" why he should not restore the suspended sentence. In my view, it was open to his Honour to reach that conclusion. The appellant had not identified any circumstances which had arisen since the imposition of the suspended sentence which would make it "unjust" to restore that sentence.
[28] In relation to the question of restoration, ground 5 asserts that the Magistrate "erred in either not considering or placing insufficient weight on the sentence imposed on the co-offender Fe'Nua". In effect, counsel sought to create a case of disparity. Fe'Nua had been sentenced by a different Magistrate in respect of two offences involving kava. For the offence arising out of the circumstances involving the appellant, Fe'Nua received a sentence of eight months imprisonment to be suspended after service of seven weeks. Counsel argued that the appellant was entitled to experience a "legitimate sense of grievance" because, for his role in the offending which was less serious than Fe'Nua's involvement, the appellant was being required to serve eight months and three weeks imprisonment while Fe'Nua would be released after serving seven weeks.
[29] This submission contains the same underlying fallacy identified earlier in these reasons. The appellant did not receive a sentence of eight months and three weeks imprisonment for the offending in May 2009. He received a sentence of five months. The period to be served by the appellant was the appropriate sentence for the offending in 2008. No question of parity or disparity arose.
[30] For these reasons, in my opinion no error has been demonstrated and the orders made by the Magistrate were within the range of his Honour's sentencing discretion. His Honour took a generous view of the appellant's involvement, a view which I would not take if I was called upon to re-sentence the appellant. As I have said, I would reject his reason for accompanying the co-offenders as totally lacking in credibility. The burden being on the appellant to establish a matter of mitigation in connection with sentence, I would not be persuaded on balance that the appellant became involved in the way he described. I would be left in the position of not being able to make a specific finding in that regard. In these circumstances, matters of mitigation accepted by the Magistrate would not form part of the factual basis upon which I would impose sentence and I would not impose a sentence less than the sentence imposed by the Magistrate. Nor would I decline to restore the suspended sentence in full.
[31] For these reasons, both appeals are dismissed.
[2] Bukulaptji [2009] NTCCA 7 at [33]. See also R v Anthony [2007] NTSC 62; (2007) 22 NTLR 36 at [18] - [20].
[3] R v Buckman (1988) 47 SASR 303 per King CJ at 304.
[4] Marston v The Queen (1993) 60 SASR 320 per King CJ at 322; Lawrie v The Queen (1992) 59 SASR 400 per Perry J at 403.
[5] Anthony [2007] NTSC 62; (2007) 22 NTLR 36 at [21] and [22].
[6] Bukulaptji [2009] NTCCA 7 at [35].
[7] Bukulaptji [2009] NTCCA 7 per Riley J at [31].
(1992) 59 SASR 400
(1993) 60 SASR 320
(2007) 22 NTLR 36
(1988) 47 SASR 303
Appeals dismissed; the sentence of five months imprisonment upheld and the earlier suspended sentence restored and ordered to be served concurrently with the five-month sentence (see [3], [31]).
[26] As to the approach of the Magistrate to the question of restoration, his Honour observed that the appellant had not even managed to reach the half way mark of the operative period of suspension before getting himself "mixed up again with kava". His Honour's reasons continued: