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[2026] NTSC 6
General information, not legal advice.
Supreme Court of the NT
2026-01-21
Blokland J
Original judgment source is linked above.
APPEAL - whether Local Court in error by imposing a conviction being part
of a regulatory regime - whether sentence manifestly excessive - appeal
Fox and Freiburg Freiberg, Arie, Fox and Freiberg's Sentencing, State and
Federal Law in Victoria 3rd Edition (Thomson Reuters, 2014)
Barbaro v The Queen; [2014] HCA 2; 253 CLR 58; Barlow v Rural City of
Murray Bridge [2018] SASC 88; Barnett v Spectrum Transport Pty Ltd
[2009] SAIRC 72; Damday Pty Ltd v Work Health Authority [2014] NTSC 7;
Director of Public Prosecutions v Hazelwood Pacific Pty Ltd & Ors [2020]
VSC 279; Glover v Zourandis (1990) 54 SASR 200; Gould v Austral Tree &
Stump Services Pty Ltd & Anor (No 2) [2008] SASC 149; H Stanke & Sons
Pty Ltd v Parkes [2010] SASC 263; Hales v Adams [2005] NTSC 86;
Ingram v Littman; Ingram v Verity [2009] NTSC 70; Jenkin v Police [2023]
SASC 46_; Karimi v Verity_ [2014] NTSC 50; Liddy v Cobiac (1969) SASR 6;
Norris v Sanderson & Ors [2007] NTSC 1; Ostojic v Threlfo [2016] NTCA 1
Piva v Brinkworth [1992] SASC 3629; (1992) 59 SASR 468; Rigby v Benfell
[2020] NTCA 9; Walker v Eves(1976) 13 SASR 349; Watson v Cassidy
[2011] NTSC 80; Zirilli v The Queen [2021] VSCA 305; cases referred to.
Respondent: Department of Industry, Tourism and Trade
Raptis Nominees Pty Ltd v Department of Industry,
Tourism and Trade [2026] NTSC 6
[1] Raptis Nominees Pty Ltd ('Raptis') appealed against sentence, in particular a conviction imposed on it by the Local Court. Raptis had entered a plea of guilty to a single charge, namely that between 17 September 2022 and 3 November 2023, it carried on business as a real estate agent without being licensed to do so, contrary to section 17(1) of the Agents Licensing Act 1979 (NT) ('the Act').
[2] The maximum penalty for the offence when committed by a body corporate at the time was 2500 penalty units or $462,500 (at the time of offending one penalty unit was equal to $185).
[3] The Local Court Judge imposed a conviction and a fine of $15,000 on Raptis.
[4] Raptis had submitted that no conviction should be recorded. On appeal Raptis argued the imposition of the conviction was an error and the sentence was manifestly excessive. This Court was told there was capacity to pay the fine. The appeal is against the fine in combination with the conviction in the sense that it is said to be manifestly excessive.
[5] The facts largely agreed by the parties were as follows:
(i) As at 30 June 2023, the Raptis trust account held a balance of $8,000 comprised of rent monies and rental bonds held in trust.
(ii) Trust account statements to September 2023 confirmed the account was being used to receive rental monies from tenants for properties it was managing, and to distribute those rental monies for various purposes including the payment of utility bills, payment to tradespersons, payment to landlords and payments of the Raptis commission fees.
[6] While not contained in the agreed facts, in oral submissions before the Local Court, counsel for the Department accepted that Raptis profited less than $2500 as a result of the offending. That submission may also be understood to mean there was no evidence to counter the submission that Raptis profited $2,500 as a result of the offending. In any event, regardless of the different understandings of the significance of this factor, the result was that Raptis was to be taken as profiting to the extent of $2,500.
[7] A further relevant fact is that despite the trust account audit which was submitted to the Department on 29 September 2023, Raptis continued to advertise properties for sale in the Katherine region on social media accounts (with some posts remaining active as at 23 March 2024). Raptis admitted through a legal representative that it was managing six properties as at 3 November 2023.
[8] For further context, it was accepted that Mr Raptis, as sole director of Raptis, did not carry out business as a sole trader but only carried out business on behalf of Raptis.
[9] A further relevant matter was some acceptance that the application process was not difficult. Such a submission was made on behalf of the Department below which was not challenged. [1]
[10] Senior counsel for Raptis emphasized the offence is a summary offence subject to the ordinary sentencing considerations under Part 2 of the Sentencing Act.
[11] The maximum penalty was 2500 penalty units. The offending took place over a period of approximately 13 ½ months.
[12] Raptis had been sent a reminder by the Department to renew the business licence. Counsel for the Department pointed out this was not the only attempt made by the Department to assist Raptis with compliance. The renewal reminder was sent a month before the licence expired. The Department forwarded the application form to Raptis on both 28 September 2022 and 7 October 2022, shortly after the expiration of the licence. The Local Court was also told the Department had replied to an email sent by Raptis to explain why its licence had not been loaded to the online portal and that renewal was no longer possible. As above the Department also submitted there was nothing arduous or difficult about the application process, a matter which appeared to be accepted by the Local Court.[2]
[13] On behalf of Raptis and accepted by both the Department and the Local Court, the plea of guilty was entered at an early opportunity.
[14] It was accepted that Raptis had no prior offending history. While that was the case and was acknowledged to be so by the Department, it was also pointed out it could not be ignored that Raptis was unlicensed for an extended period.
[15] Both in the Local Court and on appeal it was submitted the offending was at the low end of the scale for an offence of this kind. It was emphasized that the profit during the offending period was less than $2500. Raptis dealt with only one vendor/ landlord and up to six tenants. No property was sold by Raptis during the relevant period.
[16] A submission was made in the Local Court to the effect that Mr Raptis who was the sole director, remained licensed for almost the entirety of the offending period so that in their dealings with Raptis, vendors, prospective purchasers, landlords and tenants were dealing with an individual who was the holder of a licence under the Act. The effect of this submission was largely diminished by the fact that while Mr Raptis remained licensed as an individual, he did not carry out business as a sole trader and only carried out business on behalf of Raptis. Mr Raptis was the business manager and was a licensed agent as required by s 11OA(1) of the Act. In that position he was prohibited by s 11DA(4)(b) from carrying on business on his own account. Consequently Mr Raptis could not be regarded as carrying on the business of a real estate agent on his own account.
[17] The agreed facts also disclose Mr Raptis was receiving monies into a trust account from tenants and distributing those monies for various purposes, including taking commissions and making payments of bills and invoices. Trust accounts are regulated under Part V of the Act. The account must be opened in the name of the agent. The agreed facts acknowledge the relevant trust account receiving moneys was in the name of Raptis, not Mr Raptis.[3]
[18] In terms of compliance and cooperation after the event, Raptis self-disclosed the offending to the Department when submitting its trust audit report in compliance with the regulatory scheme in the knowledge that the Auditor had highlighted the breach of the Act. Raptis thereafter made admissions to the offending during the course of the Department's investigation.
[19] As sole director Mr Raptis provided some explanation through counsel to the Local Court for the offending and expressed his embarrassment and an apology. Counsel for Raptis explained in the Local Court that Mr Raptis did not have a sales or administrative team. He found it difficult at times to separate himself from the corporate entity and that he could have sought sole trader status which would have allowed him to continue to operate in the Northern Territory. It was submitted on his behalf that all he had done was "really, didn't submit the form."[4] Nevertheless counsel told the Local Court Mr Raptis accepted there was no excuse given he was sent a reminder: "And he is very embarrassed and has expressed, in my presence, that he is very apologetic about it."[5]
[20] To the extent that there was a slight suggestion of an irregularity in the Department not permitting a late application for renewal there is noting in s 32 of the Act which would permit a late application to be received or processed.
[21] The Local Court was informed Raptis had already suffered some detriment as its application for a new business licence was ultimately rejected. Neither Raptis nor Mr Raptis continued to operate in the Northern Territory.
[22] Before the Local Court, counsel for the Department submitted the case called for general deterrence "to send a message to the industry that there needs to be proper licenses and licensing in place" and that the regulatory regime was an important safeguard for the protection of everyone.[6] Counsel for the Department submitted on the importance of compliance with a regulatory scheme, hence general deterrence was paramount. Reliance was placed on Hales v Adams[7] which essentially stands for that proposition. The Local Court was also informed that the case may have been the first prosecution for such an offence in the Northern Territory. In terms of comparable cases the Local Court was told of an interstate case where the fine imposed was "essentially the profits they made".
[23] In support of the Court not imposing a conviction, Raptis submitted the relevant factors were:
(a) The low-level objective seriousness of the offending.
(b) The early guilty plea and prior good character (to the extent Raptis had no prior convictions).
(c) The "punishment" already suffered by Raptis by virtue of the subsequent rejection of its business licence application.
(d) The significant impact of a conviction on Raptis given the impact of the same on the fitness and propriety tests relevant to its ongoing business in other jurisdictions.
(e) Such offending was not prevalent.
(f) A fine amounting to the profit accrued as a result of the offending was an appropriate penalty.
[24] In terms of the point sought to be made in mitigation, that Mr Raptis had a personal licence and therefore consumers had a form of protection, counsel for the Department pointed out that the licence expired on 4 September 2023. Mr Raptis did not hold a personal licence for the balance of the period of offending. The potential negative consequences for insurance and therefore compensation if there was defaulting or an untoward event remained. It was pointed out on appeal that the Fidelity Fund established under Part XII of the Act protects persons from the misappropriation of trust funds. Under s 96 of the Act, persons affected may be denied relief from loss during the unlicensed period. The failure of Raptis to pay renewal fees also deprived the Fidelity Fund of its contributions to the Fund.
[25] Counsel for the Department submitted Raptis continued to trade and did not have a licence "for a very long period of time"[8]. It followed in the Department's submission, that general deterrence was required to be the principal sentencing factor in support of compliance with the regulatory regime.
[26] As the sentencing remarks are brief, I will set them out in full:
HIS HONOUR: Okay. All right, well, this is an early guilty plea for Raptis Nominees Proprietary Limited. It's a plea of guilty for between 17 September 2022 and 3 November 2023 at various places in the Northern Territory, carrying on business or holding itself out as a real estate agent without being licenced to do so under Agents Licensing Act 1979, contrary to 17(1) of the Agents Licensing Act.
And true it is that Raptis Nominees Proprietary Limited is unknown and has no criminal antecedents and it's [only] plea entered [Note: this may be a transcription error. It is likely to have been "it's early plea"]. It's also right that this is a - it's unusual offending but it's a regulatory regime and the defendant received reminders. It's not suggested this was inadvertent. This is a regulatory regime. This is not an inadvertent breach and - but seemed to be an important factor, as regards - some of the decisions, as I recall, about regulatory offences and non-convictions.
This was advertent conduct. But that's not the end of the matter, of course. The submission is that this should be a non-conviction. It's just the straightforward process of applying s 8 of the Sentencing Act. The three disjunctive limbs. I've heard nothing about character, age, antecedence in the first limb. The second limb occurring in - not mitigating, what's the - what's the word used in the second?
MS CHALMERS: The second limb is - and sorry, I've decided not to descend into detail to save some time. The second limb is the extent to which it - the offence is trivial and we have made submissions - - -
HIS HONOUR: I thought that was the third, but anyway, it's not - --
MS CHALMERS: And then the last one is the extenuating circumstances.
HIS HONOUR: Extenuating circumstances. It's not trivial. And extenuating circumstances, well, he received a reminder. Not so much. So I'm not - I can't see in just as a fairly standard application of s 8, where a non-conviction can be made out. Although, I have some sympathy for someone extending their business and plying their trade and trying to make money, the reality is if they'd done it and despite a reminder, have failed to comply with the regulatory regime.
Nonetheless, there's been no mischief committed during that time by the defendant. It's not suggested they've done anything untoward, other than fill out the form and pay the money, which they were asked to do so. There were difficulties, of course. There always are. Administrivia is an absolute nightmare when you're in business for yourself. But the fine is huge, the potential maximum fine. I keep a sense of proportion. It's over $400,000.
I can see that it would only be appropriate to convict, and I convict the defendant, and I fine the defendant $15,000 and a victim assistance levy of $1000 which is required because it's a body corporate. Thank you. Thank you for the submissions.
Grounds 1(A), 1(B) and 1(C): took into account an irrelevant consideration namely that no submissions had been made about the background of the appellant; failure to give proper weight to the prior good character of the appellant; incorrectly found that the matter fell outside the provisions of s 8 of the Sentencing Act****.[9]
[27] On appeal it was emphasized Raptis was a corporate defendant with no prior convictions. It was submitted this fact enlivened the discretion under s 8(1) of the Sentencing Act through s 8(1)(a): 'the character, antecedents, age, health or mental condition of the offender'.
[28] It was non-contentious before the Local Court that Raptis had no previous convictions.
[29] It was submitted error was manifest by the Judge's statement: "I've heard nothing about character, age, antecedents in the first limb". This showed, it was said, the Judge proceeded to deal with, and reject, any application of the remaining parts of s 8(1) when he concluded "I can't see in just a fairly standard application of s 8 where a non-conviction can be made out."
[30] The error asserted was that the Judge had received information about the character and antecedents of Raptis and the parties were ad idem in this regard. It was said to be an error to proceed on the basis that the discretion was not enlivened because of lack of material about character and antecedents.
[31] On the basis of this asserted erroneous conclusion about the character and antecedents, Raptis was submitted the Judge must have failed to accord those factors due weight in the sentencing exercise. Consequently, specific error was said to have been made out and Raptis should be re-sentenced on appeal.
[32] This ground is not made out. The only material about Raptis's character and antecedents was that Raptis had no previous convictions or court matters. The sentencing Judge was aware of that matter. It was a favourable point for Raptis, but not necessarily persuasive towards the exercise of the discretion.
[33] As can be seen from the extracted transcript above, the Judge also said:
And true it is that Raptis Nominees Proprietary Limited is unknown and has no criminal antecedents and it's only [early] plea entered...
[34] The sentencing Judge was clearly aware Raptis had no criminal antecedents. When the remarks are read in full, it is clear no error of the kind asserted is disclosed.
[35] In a given case, lack of previous convictions or even convictions of a different type or historical matters may go some way towards a favourable exercise of the discretion not to impose a conviction. Aside a lack of previous convictions there was no material pointing to the positive good corporate character of Raptis or its behaviour as a positive contributor to the community. Although not at all fully determinative, the lack of previous convictions as the only factor under s 8(1)(a) was not particularly persuasive in favour of not imposing a conviction.
[36] The sentencing Judge also noted that he could not see "where a non-conviction can be made out".[10] In context, the sentencing Judge was making it clear that a conviction was warranted based on the conduct which was found to be advertent, where Raptis had received a reminder and had nonetheless failed to comply with the regulatory regime for some time. The quality of the conduct weighed more heavily with the Judge than the lack of previous convictions. He was entitled to form such a view. The only favourable matter in regard to character and antecedents was lack of previous convictions. There was nothing else to assist Raptis in terms of s 8(1)(a).
[37] As the Court of Appeal stated in Rigby v Benfell[11] even where character and antecedents might militate in favour of a 'non-conviction' disposition, the recording of a conviction may be necessary where the offender is of mature age and deterrence is being given weight, especially in relation to breaches of regulatory or social legislation.
[38] Even if the Judge overlooked the lack of previous convictions there was little or nothing else relevant to character and antecedents. There was no specific error as alleged. The Judge was obliged to consider the offending conduct overall which he did.
Ground 1(D) and 1(F): Gave undue weight to the fact that the offence was in breach of a regulatory regime; failed to identify and thereby consider where on the scale of objective seriousness the offending sat in order to arrive at an appropriate sentence. Ground 2: The sentence was manifestly excessive.
[40] Given the overlap of factors relevant to these grounds, they will largely be dealt with together.
[41] Raptis submitted the Judge wrongly directed himself that an inadvertent breach was required, or was at least important, before the discretion not to impose a conviction could be favourably exercised, and did not properly consider the specific regime that applied, which was not a regime requiring a conviction or was contingent up on a conviction. Knowledge of wrongdoing or non-compliance, advertence or other mental states have some significance in cases of this kind.
[42] Raptis complains the Court made no finding at all as to where the offending sat in terms of objective seriousness for the particular offence. It is not necessary for a sentencing court on every occasion to articulate precisely where on the scale of gravity the particular offending lies. Raptis submitted the Judge's view on gravity could not be ascertained from the reasons.
[43] It should be noted the Judge commented on the maximum fine, stating that it was "enormous", and that he directed himself he should keep a sense of proportion. While this remark did not take the matter much further, maximum penalties are an important consideration with respect to assessing the gravity of the offending. They are a sign post. It is clear from the sentencing remarks the Judge thought this was offending of some significance given the reminder from the Department and non-compliance following the reminder. The Judge was also aware of the length of time over which the offending took place.
[44] On appeal Raptis pointed out that the parties had both submitted that profits received were indicative of the appropriate fine. The Judge did not include a discussion of that submission in his remarks. That does not mean the submission was not considered. As above the Department advised the Court that such an approach had been used in one interstate case. There was no information before the Court as to the parameters of the interstate case. A sentencing Court is not obliged to accept an agreed position on the appropriate sentence. Indeed in some circumstances such an approach may amount to error when a prosecutor gives a range of sentences to a Court.[12] It was therefore understandable that such a submission was not influential. Raptis pointed out that the fine was substantial especially when considering the combined effect of the fine and the recording of a conviction. It represents six-times the profit made by Raptis and, it was argued, did not take into account that at least some of that profit should in fact have been nominally attributable to the work of Mr Raptis who personally performed the work that generated the profits and did so lawfully under licence. As above, under the regime, Mr Raptis could not have lawfully carried out business on behalf of Raptis during the period that Raptis was unlicensed. There is little or no merit in this submission.
[45] It was submitted that the lack of reasons underpinning the quantum of the fine imposed gives an impression that the amount of the fine had been "plucked from thin air".
[46] Neither the grounds of appeal, nor argument in this Court suggested inadequate reasons as a matter of law. Further, brief sentencing remarks will often suffice given the circumstances and pressures under which Local Court matters are heard.
[47] To illustrate the overall circumstances of the day that the case was heard, this Court was told there was only one Judge sitting in the Local Court at Darwin on 27 August 2024. The sentencing Judge was not only required to preside over all the matters that would normally be before 'Court 1', but also matters that had been listed for hearing and the domestic and family violence list that is usually presided over by the Judicial Registrar. The Department submitted the busyness of the particular day provides a further explanation for the brevity of submissions and sentencing remarks. In my view, although brief, the ex tempore reasons which immediately followed submissions are sufficient to understand why the particular sentence was passed.
[48] The facts were clear. Raptis did not comply for over one year. The reasons are brief, but sufficient. For this type of offending, what type of conduct would amount to serious as opposed to a low-level breach is difficult to imagine: perhaps non-compliance for longer than here, which was reasonably significant or perhaps the case of a repeat offender.
[49] Given the maximum penalty and given the length of the period of advertent non-compliance, Raptis is hard pressed to make the argument that the fine could not be arrived at under usual principles. As above this Court was told it is the combined effect of the conviction and fine that is under appeal, the imposition of the conviction is the main point of contention. In my view the approach taken by the sentencing Judge does not disclose error by failing to classify the offending at a particular level.
[50] Senior counsel for Raptis accepts sentencing courts have a broad discretion which should not be interfered with on appeal unless specific error is shown, or on grounds of manifest excess or inadequacy. Further, even where error is shown, the sentence should not be disturbed if it was the correct sentence.[13] Additionally, an appellate court is entitled to proceed on the basis that the Court below has considered all matters which are necessarily implicit in the conclusion reached, including sentencing options. It should not be inferred material was not considered merely because it was not mentioned.[14]
[51] In as much a ground 1(F) alleges specific error, that ground is rejected.
[52] In terms of the manifestly excess ground, the principles relevant are well known. An appellate court will not interfere unless it is shown that the sentencing court erred by applying a wrong principle, by misunderstanding or wrongly assessing salient facts or where the sentence itself is so excessive as to manifest error. The presumption is that there is no error. The sentence must be demonstrated by an appellant to be obviously rather than arguably excessive. To succeed on this ground, it is incumbent on an appellant to show that the sentence was obviously excessive.
The discretion to record (or not record) a conviction
[53] As above the exercise of the relevant discretion is provided in s 8 of the Sentencing Act. Senior counsel for Raptis drew attention to the summary of principles drawn from various cases in Karimi v Verity:[15]
Where a Court finds a person to be guilty of an offence, it may make an order without recording a conviction, pursuant to s 7 of the Sentencing Act. Any one of the factors referred to in s 8(1) of the Sentencing Act, or any combination of those factors, may provide a sufficient ground for the exercise of the discretion. This includes the character, antecedents, age, health or mental condition of the offender; the extent to which the offence was trivial in nature; and the extent to which the offence was committed under extenuating circumstances.
The Court is not obliged to apportion particular weight to any one of the factors enumerated, provided that each factor, and the overall circumstances of the case, are given due consideration when determining whether the discretion should be exercised. All relevant circumstances must be taken into account by the sentencing Court. The Court is not constrained solely by the matters enumerated in s 8 of the Sentencing Act.
The recording of a conviction is to be regarded as a component of the sentence, to be accorded weight in considering whether or not the sentence is proportionate to the offence. As expressed in Fox and Freiburg's 'Sentencing', the recording of a criminal conviction is a "significant act of legal and social censure". It is, "a judicial act by which a person's legal status... is officially and - subject to any provisions relating to expungement - irretrievably altered". (footnotes omitted)
[54] Counsel for Raptis set out the helpful extract from Fox and Freiburg which is referred to in that decision. The learned authors state the various matters that may be relevant to the exercise of the discretion.[16] In terms of weighing against the recording of a conviction:
(a) Where a crime is 'victimless'.
(b) Youth.
(c) An older person with no prior convictions for whom a conviction may cause severe stress/ anxiety.
(d) A defendant with little or no previous record.
(e) Where offending is related to ill health.
(f) Where conviction would be a significant additional penalty for a first offender.
(g) Impact of conviction on offender's ability to travel, earn a livelihood, future employment prospects (especially in relation to regulated occupation / professions that require persons to be of good character).
(h) Where there is a statutory consequence of conviction:
[55] In terms of favouring the recording of a conviction:
(i) Where a crime is serious or blatant.
(j) Where the offender is of mature age and the requirements of general and special deterrence are being given weight especially in relation to breaches of regulatory or social legislation.
(k) Cases where there is a possibility that provisions of dangerous offender legislation might be invoked (and a conviction is required).
(l) The victim may not feel vindicated without a conviction being recorded.
[56] Raptis submitted there was over reliance by the sentencing Judge on the factors stated in (j) above: that the requirements of general and special deterrence be met 'especially in relation to breaches of regulatory or social legislation'. Further, in an interesting tour of authorities from other jurisdictions, some which were relied on by Southwood J in Hales v Adams,[17] Raptis argued the sentencing Judge was in error by imposing a conviction relying on the offence being part of a regulatory regime and that Hales v Adams itself does not reflect the statutory provision, namely s 8 of the Sentencing Act.
[57] Raptis referred to the following remarks of the sentencing Judge:
It's unusual offending but it's a regulatory regime and the defendant received reminders. It's not suggested this was inadvertent. This is a regulatory regime. This is not an inadvertent breach and - but seemed to be an important factor - some of the decisions as I recall about regulatory offences and non-convictions.[18]
[58] In Hales v Adams Southwood J summarised the general principles in relation to the discretion not to impose a conviction.[19]
[59] Raptis submitted that constraints on the exercise of the discretion which appear in Hales v Adams are wrong or ought not be applied. It was pointed out that Piva v Brinkworth[20] was the sole case cited by Fox & Frieberg in support of the proposition that provisions such as s 8(1) have restricted application with respect to regulatory legislation and that Southwood J relied on Piva in Hales v Adams.[21] As acknowledged by counsel for Raptis the 'restricted application' discussed in Hales v Adams was applied by the Court of Appeal in Rigby v Benfell.[22] Rigby v Benfell involved the Traffic Act, which may be regarded as regulatory or social legislation, particularly drink driving as was the subject in Rigby.
[60] Counsel for Raptis pointed out that the Supreme Court of South Australia in Piva cited Bray CJ in Liddy v Cobiac.[23] Both Piva and Cobiac were dealing with cases involving s 4(1) of the Offenders Probation Act which then provided for a no conviction dismissal of a charge on grounds similar to those provided for in s 8(1). The provision generated controversy in South Australia leading to the High Court dealing with the question of statutory construction between s 4(1) and the provisions of historic SA traffic legislation, the Road Traffic Act 1961-67 (SA).
[61] Raptis asks this Court to note the following about the Cobiac case:
(a) Firstly, neither the Full Court nor the High Court applied or endorsed the principle calling for a particular approach to the exercise to the discretion in cases of regulatory breach.
(b) Secondly, Bray CJ's statement in Cobiac was made in a very specific context in which a strict penalty regime in historic SA traffic legislation provisions relating to minimum penalties (including imprisonment) for repeat drink driving offences, which were conditional upon a conviction having been ordered. One part of that regime provided for a partial exception for first offenders where evidence on oath satisfied the court that the offence was trifling. The Full Court and High Court appeals largely centred on the question of statutory construction between s 4(1) and the historic SA traffic legislation provisions. The secondary issue on the various appeals was whether the dismissal order was appropriate in the particular facts of the case having regard to the three enumerated grounds provided for in s 4(1). The Magistrate at first instance had ordered a no-conviction dismissal in respect of an offence that would, in the event of a conviction, have sent the elderly defendant to prison for 1 month.
[62] It was against that background that Bray CJ stated that the presence of the exception provision in the historic SA traffic legislation "should have a very powerful influence upon the court's discretion in the exercise of the power (to make a no-conviction dismissal order under _Offenders Probation Ac_t)." The discretion was one which resulted in dismissal rather than, for example, a no-conviction fine or bond.
[63] In that context Bray CJ said of the s 4(1) power to dismiss in the Liddy matter:
Its application, it seems to me, generally speaking, should be less ready when the charge relates to breach of social legislation, where the preventative and deterrent aspects of punishment assume greater prominence, though I am far from denying that there are cases of this kind to which the section can properly be applied.
[64] His Honour went on to say that in the case of drink driving the provision would only be likely to be invoked in rare and exceptional cases.
[65] In Hales v Adams, Southwood J said:[24]
The deterrent aspect of punishment is paramount when an offender is being sentenced for breaches of regulatory legislation and in those circumstances, there must be good reasons for refusing to record a conviction. It should be at least demonstrated there was a real effort to ensure that the law was complied with.
[66] The "requirement" to demonstrate "a real effort to ensure the law is complied with" was said by Raptis not to be taken from Cobiac, but rather an interpretation of a series of cases from South Australia which, primarily involved breaches of fisheries legislation. That legislation contained a highly specific, severe penalty regime with the objective of protecting the South Australian fishery. The regime prescribed (inter alia) for a penalty five times the wholesale value of the catch as well as forfeiture of the boat and equipment used.[25] Further, Walker v Eves[26] which was cited in Hales v Adams, involved birds illegally taken where the legislation also provided for a penalty calculated according to the number of birds taken, designed to quash a lucrative illegal trade in birds.
[67] It is a fair characterisation emphasized on behalf of Raptis that penalties of this type were contingent on a conviction being ordered, and that the concern of the South Australia courts in such cases was that Magistrates should (generally) not be using no-conviction orders to avoid imposing these particular penalties.[27]
[68] Contrary to the approach taken by the sentencing Judge, Raptis submitted that there is no requirement in the case of regulatory breaches in the Northern Territory for a defendant to demonstrate "good reasons for refusing to record a conviction", or "a real effort to ensure the law was complied with" or that a breach is inadvertent. Further, that Judges ought not to be constrained in the exercise of the discretion under s 8(1) of the Sentencing Act. The South Australian cases are to be distinguished as they were determined in circumstances where minimum penalties were contingent on the recording of a conviction and were not intended to fetter a sentencing court's discretion in all cases of breaches of social or regulatory legislation.
[69] Raptis is hard pressed to challenge the principles in this jurisdiction derived from Hales v Adams. Those principles have been referred to with approval on numerous occasions by this Court and the Court of Appeal. As Raptis acknowledges, in Rigby v Benfell[28] the Court of Appeal accepted that the recording of a conviction may be necessary where deterrence is being given weight, especially in relation to breaches of regulatory or social legislation, citing Hales v Adams.
[70] In Watson v Cassidy[29] Mildren J directly applied Hales v Adams. His Honour accepted that s 8(1) of the Sentencing Act had restricted application in respect of offences against regulatory and social legislation, that the deterrent aspect of punishment was paramount and, in those circumstances, there must be good reasons for refusing to record a conviction; it should be at least demonstrated there was a real effort to ensure that the law was complied with.
[71] In Ostojic v Threlfo[30] the Court of Appeal accepted that a conviction may be necessary where the offender is of mature age and deterrence is being given weight, citing Hales v Adams.
[72] The reasoning of Southwood J in Hales v Adams has been approved on many occasions since it was decided in 2005. It is appreciated the historical South Australian cases were determined in a particular context. Nevertheless it is hardly contentious that regulatory regimes set up to protect the public from such things as defalcation need to be applied in a manner which ensures compliance. The imposition of penalties, including conviction is generally to be expected. It does not overly constrain the sentencing discretion which in a given case may well be exercised favourably depending on the circumstances.
[73] Similarly, it is hardly contentious that general deterrence is the paramount or primary sentencing consideration for breaches of regulatory and/or social legislation. The various cases provided by counsel for the Department illustrate the point in addition to those cases already discussed:[31]
(a) Director of Public Prosecutions v Hazelwood Pacific Pty Ltd & Ors[32]. Given the "social nature" of the legislation under consideration in that case, general deterrence was said to be of "particular importance".[33]
(b) Damday Pty Ltd v Work Health Authority (Supreme Court - Southwood J). The Court found it was "well established that general deterrence is a paramount consideration in sentencing offenders for regulatory offences particularly in the area of work safety". Southwood J did note that, even for regulatory offences, deterrence must give way to proportion. This principle was expressly acknowledged by the sentencing Judge in the present case who said he was keeping "a sense of proportion".
(c) Norris v Sanderson & Ors[34] (Supreme Court - Riley J) the Court considered that the Domestic Violence Act was important social legislation and issues of personal and general deterrence are of importance when a breach of a domestic violence order occurs.[35]
(d) Barnett v Spectrum Transport Pty Ltd[36] (Magistrates Court of SA - Industrial Offences) it was noted that general deterrence is "paramount for breaches of regulatory legislation".[37]
[74] In its submissions on appeal the Department recognises that it is not the case that s 8(1) can never have application to breaches of regulatory or social legislation.
[75] That is clearly the case. The Courts have developed principles which in a shorthand way might be described as 'restrictions' but nevertheless are well recognised principles which include the type of legislation creating the offence, the purpose of the legislation which is often protective, such as consumer legislation.
[76] Even though the earlier South Australian cases were determined in a particular statutory context, on appeal counsel for the Department has provided a series of relatively recent South Australian cases which adhere a similar principle as set out in Hales v Adams:[38]
(a) Barlow v Rural City of Murray Bridge[39] - the Court recognised that the "general approach to contraventions of regulatory offences found in social legislation is that convictions should be imposed because of the importance of considerations of deterrence".[40]
(b) Jenkin v Police[41] - the Court accepted that the discretion not to impose a conviction will be "infrequently exercised" in the case of regulatory offences.[42] The Court went on to say that the discretion has "limited application in relation to regulatory offences".[43]
[77] Further, in H Stanke & Sons Pty Ltd v Parkes[44] the Supreme Court of South Australia considered the application of the discretion not to record convictions in the case of regulatory offences. There was some caution expressed to the effect that earlier decisions indicating that the discretion should only be invoked "rarely" should not be taken too literally. However, it was held that for the Court to find a good reason to invoke the discretion, proper regard must be had to the purpose and effect of the recording of convictions, particularly in achieving personal and general deterrence and the importance of regulatory offences in (among other things) the maintenance of proper occupational standards.
[78] The guiding principles for exercising the discretion in s 8 and comparable provisions acknowledge there may be cases which call for the discretion to be exercised favourably. Caution is also expressed in various ways in the cases. Regard to the type of legislation is a relevant factor, whether that be expressed as 'restriction' or otherwise. The authorities are overwhelming in that there are particular considerations with social or regulatory legislation.
[79] The state of mind of the offender, whether the conduct was deliberate, whether non-compliance was due to oversight or negligence is also relevant.
Particularly where the offence is committed knowingly, that is a strong consideration in favour of recording a conviction. General and personal deterrence are also vital considerations, especially for blatant regulatory offences.
[81] It was not an error for the sentencing Judge to put weight on Raptis's advertent conduct. Whether such offending is deliberate or negligent or whether there was an attempt to comply are all relevant factors. There was no suggestion Raptis attempted to comply.
[82] I see no error in the sentencing Judge's approach in the exercise of the relevant discretion. General deterrence remained the paramount sentencing consideration. The offending was not inadvertent. Raptis received a reminder notice and was later told that its registration had been cancelled and a new application was required to be submitted. Raptis continued to engage in the activities of a real estate agent whilst being unlicenced for over one year. It was appropriate for the sentencing Judge to apply the reasoning evident in Hales v Adams to the case.
[83] Although not raised in the Notice of Appeal, Raptis gave notice in its submissions of an additional matter for consideration.
[84] Brief submissions were made in the Local Court that for Raptis and Mr Raptis the recording of a conviction would significantly impact Raptis because licences held interstate were impacted by fitness and propriety considerations. This was not disputed. It was pointed out that real estate agents are a regulated profession, and it could safely be accepted there would be flow on effects from a conviction.
[85] Raptis acknowledged that the effects of a conviction were not specified and that no evidence was tendered to show how other regulatory bodies would regard a conviction for such a charge in the Northern Territory. While it is agreed here that certain detriments to a defendant upon the recording of a conviction may be relevant to the exercise of the discretion, the material available did not give the Judge any indication of what may take place interstate. There was no information about that subject, notwithstanding there was no submission to the contrary.
[86] It is accepted that a disproportionate additional penalty or detrimental impact that would operate against a defendant may be a factor taken into account in the exercise of the discretion. The onus was on Raptis to show that impact. As above, Raptis asserted a possibility that a conviction may cause it to face regulator 'action' interstate. There was no submission indicating how an interstate regulator may differentiate a conviction from a finding of guilt without conviction. In my view the material was not persuasive to show that Raptis would suffer additional punishment.
[87] Although this was not the subject of argument below, on appeal the Department pointed out that a body corporate does not receive the same 'benefit' as an individual if no conviction is recorded. To illustrate the point, counsel for the Department drew attention to the Criminal Records (Spent Convictions) Act 1992 (NT).
[88] Section 3(1) - provides a definition of "spent record" which includes (relevantly) a "spent conviction". The phrase "spent conviction" is also defined as a "criminal record" which is "spent" in accordance with Part 2 of the Act; section 5(b) - confirms that the phrase "criminal record" in Part 2 does not include the criminal record of an offence committed by a body corporate. Section 7(1) sets out the usual position that, where a person has been convicted of an offence but has been discharged without the recording of a conviction, the "criminal record" of the conviction becomes a "spent conviction" immediately. Given section 5(b), this provision does not apply to a body corporate, only natural persons. The criminal record of a body corporate never becomes a "spent conviction". Section 11 provides protections to persons in relation to a "spent record". Given a body corporate never receives the 'benefit' of a "spent conviction", these protections do not apply.
[89] The result is that whether or not a conviction was recorded, the finding of guilt would not have become a "spent conviction" and Raptis could not have taken advantage of the protections afforded by s 11 of the Criminal Records (Spent Convictions) Act 1992.
[90] It is of interest but not necessary to rule on the correctness of that construction under the Spent Convictions legislation. In my view there was simply not sufficient material before the sentencing Judge to make an evaluation on whether Raptis would suffer extra curial punishment or whether the conviction would operate as a disproportionate penalty by virtue of actions in another forum.
[91] Even if there are deficiencies in the reasons, in my view the sentence is the correct sentence. The penalty is not manifestly excessive when all of the circumstances are considered and the appeal must fail.
[1] Transcript, Local Court, 27 August 2024 at 8.
[2] Transcript, Local Court, 27 August 2024 at 8.
[3] Transcript, Local Court, 27 August 2024 at 3.
[6] Transcript, Local Court, 27 August 2024 at 4.
[8] Transcript, Local Court, 27 August 2024 at 8.
[9] Ground 1(E) was not pressed given it was closely related to the other grounds.
[10] Transcript, Local Court, 27 August 2024 at 10.
[11] [2020] NTCA 9 at [18].
[12] Barbaro v The Queen [2014] HCA 2; 253 CLR 58; Zirilli v The Queen [2021] VSCA 305.
[14] Ingram v Littman; Ingram v Verity [2009] NTSC 70 at [13].
[15] [2014] NTSC 50 at [23]- [25].
[16] Freiberg, Arie, Fox and Freiberg's Sentencing, State and Federal Law in Victoria 3rd Edition (Thomson Reuters, 2014), at 89-91.
[18] Transcript, Local Court, 27 August 2024 at 10.
[19] Citing Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257; and Toohey v Peach [2003] NTCA 17; (2003) 141 A Crim R 437 and the factors listed by Fox & Freiburg (above)].
[21] [2005] NTSC 36 at [18].
[22] [2020] NTCA 9 at [13] to [18].
[24] [2005] NTSC 86 at [18].
[25] For example Hemming v Neave [1989] SASC 1660; (1989) 51 SASR 427; Walker v Eves (1976) 13 SASR 349.
[27] Glover v Zourandis (1990) 54 SASR 200, per Jacobs J.
[31] Set out in Respondent's Outline of Submissions, 12 February 25 at [28].
[38] Respondent's Outline of Submissions, 12 February 2025 at [29].
Raptis Nominees Pty Ltd
Department of Industry, Tourism and Trade [2026] NTSC 6
(1990) 54 SASR 200
(1992) 59 SASR 468
(1976) 13 SASR 349
(1969) 119 CLR 257
(1989) 51 SASR 427