Mirniyowan v Rahman [2026] NTSC 11

Respondent: Office of the Director of Public Prosecutions

Mirniyowan v Rahman [2026] NTSC 11

[1] This is an appeal against sentences imposed by the Local Court for the following offences:

Count 1: Assault GM with circumstances of aggravation. The circumstances of aggravation were that GM suffered harm; she is female and was threatened with an offensive weapon, namely a knife.

Count 2: Breach a domestic violence order in circumstances where the conduct involved harm to the victim.

Count 3: With intent to cause fear, threaten to kill a person, namely GM, and the threat is of such a nature as to cause fear to any person of reasonable firmness and courage.

[2] All offences were committed contemporaneously on 27 September 2024.

Count 1: Assault with circumstances of aggravation, two years and six months imprisonment.

Count 2: Breach of a domestic violence order, four months imprisonment, two months of which is to be served cumulatively with the sentence on count 1.

Count 3: Threat to kill, three years imprisonment, with one year and 10 months to be served cumulatively on counts 2 and 3.

[4] The total effective term was four years and six months imprisonment. A non-parole period of two years and three months was fixed.

Ground 1: The sentence was manifestly excessive

[5] As is well appreciated, to establish this ground an appellant must show that the alleged excessive nature of the sentence is "plainly apparent", "unreasonable or plainly unjust".[1] To determine whether the sentence lies outside of the permissible range, all relevant circumstances must be considered: the objective circumstances, the relative gravity of the offending including any aggravating and mitigating circumstances and relevant subjective matters.[2]

[6] In this Court and before the Local Court, counsel for Mr Mirniyowan acknowledged that the offending was inherently serious: an assault involving a knife, inflicting injury which amounted to harm. Attention was drawn to the principle that notwithstanding the gravity of the offending, the sentence must still be proportionate in the sense of Veen v The Queen (No 2).[3] Proportionality is the principle which restrains excessive and arbitrary punishment.

[7] In terms of the facts of the offending, both Mr Mirniyowan and GM were in a long-term relationship. Both were forty years old at the time of the offending. They have two children, one adult daughter and a 12-year-old son.

[8] From 26 June 2023, Mr Mirniyowan was the defendant in a police domestic violence order and GM was the protected person. The conditions included not approaching or being in the company of GM when consuming alcohol or when under the influence of alcohol or drugs, submitting to breath tests, and not to cause harm, threaten to harm or intimidate or harass GM. The police domestic violence order was confirmed by the Local Court on 17 January 2024 for 12 months, to expire on 16 January 2025.

[9] On the day of the offending, the 27 September 2024, GM was sitting down outside an address in Katherine East. Mr Mirniyowan arrived, intoxicated. They both entered the property and argued. Mr Mirniyowan took out a large knife from his bag and ran towards GM. He assaulted her with the knife which resulted in one slash wound to her back. While he did this, he yelled "I'm going to kill you".

[10] As a result, GM became dizzy, scared and feared for her life. Mr Mirniyowan left the scene. A cousin sister called the police and ambulance. Police arrived and found GM sleeping. Police made an assessment of her injuries. She was too intoxicated to give a statement. There is no indication in the facts on whether she was admitted to hospital beyond an ambulance attending or what treatment she received, although it is reasonable to infer she would have received treatment for such a wound.

[11] Mr Mirniyowan was arrested for the offending on 9 January 2025.

[12] Before the Local Court and this Court is a photograph of the laceration to GM's back.

[13] Mr Mirniyowan has extensive previous convictions. The sentencing Judge noted that the Information for Courts was 13 pages. Of particular relevance are the following: a conviction and sentence for aggravated assault on 12 December 2021; a conviction and sentence for two counts of assault with a weapon and one of recklessly endangering serious harm on 13 November 2019; going armed in public and make a threat to kill a person on 15 February 2017; aggravated assault on 4 October 2010; aggravated assault on 10 March 2008; do an act causing danger on 31 March 2004 and do an act causing danger on 28 March 2003. For most of the previous offences Mr Mirniyowan was sentenced to brief periods of imprisonment. He also had numerous convictions for breaches of orders, traffic offences, property offences and summary weapons charges.

[14] The sentencing Judge also dealt with an earlier breach of the domestic violence order, a prohibition on contacting the protected persons when intoxicated. The sentence for that breach, which was one month imprisonment concurrent on File ending in 7229, is not the subject of appeal.

[15] In reference to that matter, File ending in 7229, the sentencing Judge was told that Mr Mirniyowan was drinking with GM, thus was in breach of the order. On that occasion Mr Mirniyowan saw police at the bottle shop and asked them to arrest him, knowing that relations between himself and GM would deteriorate which he wanted to avoid.

[16] In relation to the far more serious matter which is under appeal, the sentencing Judge was told that GM was drinking at the residence noted in the facts. Mr Mirniyowan had also been drinking but in another place. He came home to have food, the trouble started, and he offended in the manner set out in the facts. He had taken responsibility for the offending and regretted his actions, he was sorry for hurting GM and now realised how frightened she must have been and that his conduct was not acceptable.

[17] In terms of Mr Mirniyowan's personal circumstances, the Court was told that he was 41 years old and from Numbulwar where he had spent most of his life. He had also spent a significant amount of time working in Umbakumba and for the Land Council in Alyangula. His work entailed repairing houses for old people, mowing and gardening and previously he had worked as a groundsman at the Alyangula school. The sentencing Judge was told that employment would still be available when he is released.

[18] Mr Mirniyowan and GM had been in a relationship for 25 years. GM was the complainant in the previous aggravated assaults in 2010 and 2008 mentioned above. Through his Counsel Mr Mirniyowan said that he was sorry for the way he had treated GM and sorry that he was not present to support their family.

[19] The plea of guilty was entered after representations had been made on Mr Mirniyowan's behalf on the facts. He had been remanded in custody since 9 January 2025. There was an error in the sentence backdating, which was to Mr Mirniyowan's advantage, and as will be discussed, should be corrected.

[20] In terms of the individual sentences, it is concluded here that the individual sentences are not manifestly excessive. The maximum penalty for Count 1 is five years imprisonment. Counsel for Mr Mirniyowan pointed out that the sentencing Judge did not specify the reduction for the plea of guilty, although he did state that the "full discount" would be applied. If the reduction was 25 per cent, the starting point would have been around six years imprisonment.

[21] In terms of considerations of proportionality, counsel for Mr Mirniyowan drew attention to the wound inflicted on the victim, as depicted in the photo exhibit before the Court.[4] It was submitted that the injury was not an example of 'an extremely serious knife wound', but rather a superficial wound. It was suggested that it could be inferred that it was not a particularly deep wound given the lack of bleeding. Attention was also drawn to the sentencing Judge's remarks that he "kept a sense of proportion, having seen the photograph". Counsel commented that the meaning of that remark could not be ascertained. It seems to me that the sentencing Judge was simply being mindful of the principle of proportionality. The aggravated assault was a serious example of offending of that kind. Combined with the threat to kill, the offending would have been terrifying for the victim.

[22] Counsel for Mr Mirniyowan submitted that the sentencing Judge placed substantial or too much weight on the photograph of the injury. That photograph is also before this Court. The wound depicted is said not to be extremely serious but rather relatively superficial. The photograph was evidently taken shortly after the wound was inflicted. The wound does not appear to be bleeding in the image. Overall, it was submitted that this was not a sustained assault. It involved only one single relatively superficial laceration. It was also submitted that the slash wound was not on a particularly vulnerable part of the body and there was no evidence on the facts of extensive medical interventions being required.

[23] The submissions made on the behalf of Mr Mirniyowan on the assessment of the gravity of the offending is rejected. The nature, extent or degree of the harm caused which itself is circumstance of aggravation is not the only factor which comprises the assessment of the gravity of the offending. The use of a 40 centimetre knife to slash the victim's back is a serious feature of the offending. The photograph depicts a wound which cuts diagonally across GM's back. It may not have been a deep cut, but it was over a reasonably lengthy portion of her back. Contrary to the above submission, the wound inflicted was dangerous and risked further penetration; it is fortunate that it did not.

[24] There could be no mitigation for prior good character. Mr Mirniyowan was subject to a domestic violence order at the time. His previous offences were before the Court. A sentence proportionate to the gravity of the offending was all that could be expected.

[25] The sentencing Judge may not have awarded a 25 per cent reduction for the guilty plea. The reduction may have been less given the only indications of remorse were apologies, or feeling sorry as conveyed from the bar table. Assuming a reduction of 20-25 per cent, in my view the starting point of 5-6 years, was at the outer limits of the exercise of the discretion, bearing in mind that the maximum penalty is 5 years. There was no victim impact statement or other evidence bearing on the significance of the injury or recovery but obviously such offending would be extremely frightening to the victim, especially given the assault was coupled with the threat to kill in Count 3.

[26] In terms of Count 3, the threat to kill, the maximum penalty is seven years imprisonment. The sentencing Judge, after applying the reduction for the plea of guilty (likely to be around 20-25 per cent) fixed a term of three years. To impose a sentence of that length, the sentencing Judge must have considered the threat in conjunction with the offending in Count 1. He was entitled to assess the gravity of the offending in Count 3 in all of its context which included the dangerous offending comprising Count 1 as described above. The threat was the kind that could have readily been acted on given the weapon and its use as described.

[27] The combination of an assault with a weapon causing harm while at the same time threatening to kill elevates the gravity of the offending in Count 3 such that a sentence of three years imprisonment, while towards the outer limits of the discretion, does not, in my view, exceed it.

[28] The sentencing Judge no doubt was concerned with general and specific deterrence, both principles were required to be fully engaged. This is yet another case of serious domestic violence being perpetrated on an Aboriginal woman by her husband for at least the third time.

[30] While ground one is not made out, there is in my view a reasonable case made in respect of Ground 2 given the aggravating features of each count which overlap with each other.

Ground 2: That the learned Judge erred in the manner in which he accumulated the component sentences resulting in sentences that were not justly proportionate to the appellant's criminal conduct

[31] The relevant principle is set out in Pearce v The Queen:[5]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

[32] It is appreciated that the offending does not contain overlapping legal elements, rather the facts comprising each offence clearly impact the assessment of the gravity of the others.

[33] As counsel for the respondent submitted, for the breach of the domestic violence order, the sentence was made concurrent by 50 per cent with Count 1. For the threat to kill, 45 per cent concurrently with the other sentences. Although that is the case, mathematical calculations rarely reflect the true extent of conduct forming the basis of a number of charges in closely connected circumstances such as these.

[34] While the Court of Criminal Appeal in Carroll v The Queen[6] stated the relevant discretion to impose cumulative sentences was always a matter of fact and degree on which reasonable minds may differ, reflecting what was said in Pearce v The Queen, the Court went on to state[7]:

However, the over-riding concern is that the sentences for the individual offences and the total sentence imposed be proportionate to the criminality of each case. Concurrency may be appropriate because the crimes which give rise to the offender's convictions are so closely related and interdependent. What is necessarily required in every case is a sound discretionary judgement as to whether there should be cumulation or concurrency.

[35] In Thomas v The Queen[8] the Court of Criminal Appeal allowed an appeal against sentence in circumstances of insufficient concurrency of sentences. Notwithstanding that the relevant offending involved separate victims and, accordingly, separate invasions of the persons of the victims and the community's right to peace and order[9], the Court determined that the common features of the offending and the totality of the criminality which they encompassed required a greater level of concurrency that was allowed by the sentencing Judge. Those common features included the contemporaneity of each offence; the common nature of each offence being impulsive, opportunistic and unsophisticated; and the appellant's psychological profile indicating the offence as having the single cause.

[36] In this matter, there were common features across all three offences in terms of time, location and circumstances. All counts arose from the single impulsive act of aggression by use of the knife and simultaneously making the threat to kill. The assault with the knife and the spoken threat to kill took place simultaneously. All offences involved Mr Mirniyowan possessing the same state of mind during the course of the offending and the offending was directed at the same victim.

[37] In my view, the cumulation of 1 year and 10 months on count 3 represents either a non-application of the principles derived from Pearce[10], or there has not been regard to the principle of totality. Little or nothing was said of this aspect by the sentencing Judge, although it is appreciated that the pressures of sentencing in the Local Court means that reasons will often be brief. The conclusion reached here is no criticism of the sentencing Judge in that regard.

[38] The sentence for count 2 was a short sentence and the offence involved additional legal elements given it was a breach of an order. Still, the fact remains that it was the same conduct which formed the basis of all offences. The accumulation of sentences may sometimes result in a manifestly excessive sentence when the component sentences imposed are at the upper end of the range.[11]

[39] Given the individual sentences were at the uppermost limits of the exercise of the sentencing discretion and given the commonality as described between the behaviours constituting the offending for each offence, the sentences should have been ordered to be served substantially concurrently.

[41] As a result of an error in the Court below on the back dating of the sentence, I would have re-opened the proceedings to correct the error under s 111 of the Sentencing Act[12], even if the appeal had not been successful. However, given ground 2 is made out, the sentence will be varied by ordering greater concurrency. The correct commencement date is 9 January 2025. In the Local Court the sentence was backdated to 27 September 2024, the date of the offending. Mr Mirniyowan was treated as having served 8 months and 3 days custody when he had served 4 months and 21 days.

1. The appeal is allowed in part.
2. The individual sentences are confirmed and the overall sentence is varied as follows:

Count 1: Convicted and sentence to 2 years and 6 months imprisonment.

Count 2: Convicted and sentenced to 4 months imprisonment of which 2 months will be served concurrently with count 1. (Total for counts 1 and 2, 2 years, 8 months).

Count 3: Convicted and sentenced to 3 years imprisonment, to commence after the service of 18 months on count 1.

1. The sentence is to commence on 9 January 2025.
2. A non-parole period of 18 months is fixed.
3. These Reasons are to be published and forwarded to counsel.

[1] Dinsdale v The Queen [2000] HCA [54] at [6]; [2000] HCA 54; 202 CLR 321; Hampton v The Queen (2006) [NTCA] 48.

[2] R v Olbrich [1999] HCA 54; 199 CLR 270.

[5] Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40].

[6] Carroll v The Queen [2011] NTCCA 6; [2011] 29 NTLR 106.

[8] Thomas v The Queen [2017] NTCCA 4; (2017) 40 NTLR 70.

[10] Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40].

[11] Thomas v The Queen [2017] NTCCA 4; [2017] 40 NTLR 70 at [39]; Retchford v Rigby [2024] NTSC 39.

[12] Sentencing Act 1995 (NT) s 111.