Satour-Brown v Cartmill & Anor [2025] NTSC 75

• [2] On 9 January 2021, the appellant committed the offences of burglary and aggravated robbery. On 7 February 2021, he was arrested and remanded for this offending on file 22104712.
• [3] On 30 June 2022, the appellant was sentenced to a total effective sentence of two years and seven months, backdated to 7 February 2021. The sentence was suspended with effect from 1 July 2022 (after just under five months had been served), with various conditions including supervision, abstinence from drug use with testing, and a requirement to notify of any change of address. An operational period of two years from release was imposed during which the appellant was not to commit further offending punishable by imprisonment.
• [4] On 3 October 2022, the appellant was found to have breached the suspended sentence by testing positive to cannabis. The Supreme Court found the breach proven and took no further action.

• [5] On 26 and 27 November 2022, the appellant committed the offences of theft and assault. On 13 December 2022, he was arrested and remanded on file 22238177 after handing himself in to Police.

Further breach of the suspended sentence on file 22104712

• [6] On 4 May 2023, the appellant was found to have breached the suspended sentence by failing to engage in supervision and failing to notify his change of address on 30 November 2022. The Supreme Court found the breaches proven and restored five months of the sentence, backdated to 13 December 2022. The restored period of imprisonment expired on 12 May 2023.

• [7] On 16 June 2023, the appellant was granted bail on file 22238177 on various conditions. He was thereupon again subject to the conditions of the suspended sentence on file 22104712. The conditions of bail were varied on 18 September 2023 and 14 March 2024.
• [8] On 18 October 2024, the appellant was sentenced by the Local Court for the offending on file 22238177. That offending was against his then domestic partner, on and off, of six years. They were living together at the time of the offending. The appellant came home and demanded money from the victim. She was scared of the appellant and handed him her bank card following which he withdrew $580 from her account. That was the offence of stealing. Later that night, the victim went out drinking, leaving the appellant to care for the victim's two year old son. When she got home in the morning, the appellant yelled angrily at her asking where she was and what she had been doing. She felt scared and walked away. The appellant followed her in a car and told her to get in. The child was also in the car. The victim got into the car and the appellant slapped her once to the face and punched her once to the back of the head while she was holding the child and unable to defend herself. Back at home a verbal argument continued. A witness drove past and the victim went towards the car. The appellant grabbed her shirtsleeve and it tore off. She ran towards the car, still holding the child. The appellant drove away. The victim suffered pain and bumps to her head. She went to the hospital for treatment.
• [9] The sentence imposed was imprisonment for 10 months, backdated to 16 April 2024. The sentence was suspended immediately (after having served almost six months), with conditions and an operational period of 12 months from release during which the appellant was not to commit further offending punishable by imprisonment.

• [10] On 2 November 2024, the appellant committed the offences of recklessly endangering serious harm and possessing a controlled weapon. He was arrested and remanded on file 22430549.

The restoration of the suspended sentence on file 22104712

• [11] On 6 December 2024, the Supreme Court dealt with the appellant's breach of the suspended sentence on file 22104712 by way of the offending on file 22238177. The unserved portion of the suspended sentence, comprising 281 days (just over nine months), was restored, backdated to 2 November 2024.

• [12] On 11 December 2024, the appellant pleaded guilty in the Local Court to the following offences on file 22430549:

(a) Engaging in conduct that gave rise to a danger of serious harm to CW and was reckless as to the danger of serious harm arising from that conduct, contrary to ss 174D and 174G of the Criminal Code; and

(b) Possessing a controlled weapon, namely a machete, in a public place, contrary to s 7(1) of the Weapons Control Act.

• [13] On 15 January 2025, the appellant was sentenced to a total effective sentence of imprisonment for three years and eight months, backdated to 1 April 2024, with a non-parole period of one year and 10 months, comprised of:

(a) three years and six months for the offence of endangering serious harm;

(b) six months for the offence of possessing a controlled weapon, to be served concurrently with the above; and

(c) a full restoration of the unserved portion of the suspended sentence on file 22238177, which was to be cumulative as to two months with the sentences on file 22430549.

• [14] Pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT), the appellant appealed against the sentence on the following grounds:

(a) that the sentence was manifestly excessive;

(b) that the Local Court failed to properly consider the principle of totality; and

(c) that the Local Court failed to give proper weight to the appellant's early guilty plea.

• [15] The facts agreed on the plea were that the appellant was 39 years old. The victim, CW, was his 33 year old domestic partner. They had been in a relationship for around one year. She was five months pregnant with twins. The appellant and CW lived together in Tennant Creek. They had separated around three days before the offending, with the appellant moving out of their home.
• [16] Between 9pm and 10.30pm, the victim and a female witness, PB, were socialising with other people at the home. During this period, the appellant kept CW under his surveillance by driving past the home around six times. At around 12.30am, the appellant went to the home and had a verbal argument with CW, asking her what people were doing at her house. He forcefully kicked her to her upper leg, causing her to feel fear and experience pain. He stepped closer to her and drew a 40cm machete from behind his back. He held it above his head in a threatening manner. He then struck CW once to the top of her head with the machete, causing immense fear, pain and apprehension. She suffered a cut to the top of her head measuring 4-5 cm in length. The appellant walked to an outdoor glass topped table in the front yard and struck it once with the machete, causing the glass to shatter. An unknown person walked past. In an aggressive tone, the appellant yelled out: 'What are you looking at? I'll come hit you too!' He then walked away from the home. PB called 000. CW was taken to the hospital and received treatment for her injuries. The appellant was later located and arrested. He declined to participate in a recorded interview.

Appellant's circumstances and submissions to the Local Court

• [17] The appellant was 39 years old at the time of sentencing. He had a prior criminal record comprised of:

(a) two convictions for aggravated robbery, the most recent committed in January 2021 (the offending the subject of file 22104712);

(b) 12 convictions for assault or aggravated assault, including by causing harm to a female, the most recent being the offending on file 22238177;

(c) one conviction for possessing a controlled weapon at night, committed in June 2020;

(d) four convictions for breaching a domestic violence order, committed in November 2009; and

(e) various other convictions for property offences, drug offences, disorderly conduct offences and traffic offences.

• [18] The appellant also had some 10 instances of breaching the conditions of bail or a suspended sentence.
• [19] Photographs of CW's injuries and the smashed table were received by the Local Court, as were a number of character references for the appellant, including from former employers, and letters of support from the appellant's counsellor, indicating he had participated in numerous counselling sessions, demonstrated a strong desire for change and recovery from drug addiction and described childhood trauma involving personal experience of drunken violence at the hands of his stepfather and a childhood of deprivation and dysfunction, and had described symptoms consistent with a complex Post Traumatic Stress Disorder diagnosis. Compliance reports were also received from Community Corrections about the appellant's performance under supervision.

• [20] As regards the objective seriousness of the offending on file 22430549, the Local Court referred to the appellant's 'clear headed coherent pursuit' of CW over the hours of his surveillance of CW preceding the offending and a premeditated act in going to the home armed with the weapon. The appellant's conduct was controlling and frightening to CW, including going to her home after the people who had been there had left and demanding to know what she had been doing. The victim would have feared for her unborn children as well as herself. The weapon, a machete, was capable of causing serious injury and instilling extreme fear, the appellant kicked the victim and struck her to the head with a machete, causing immense fear, pain and an injury to the victim, and a machete to the head with the blade carries a significant risk of serious harm.
• [21] The Local Court characterised the offending to be at the lower end of the mid-range of seriousness for such offences.

• [22] It is uncontroversial that an appeal against sentence under s 163 of the Local Court (Criminal Procedure) Act 1928 (NT) is an appeal from the exercise of a judicial discretion governed by the well-established principles set out in House v The King.[1] Those principles are that:

(a) It is not enough that the appeal court considers that, if they had been in the position of the sentencing Judge, they would have taken a different course.

(b) There must be some error in the exercise of the sentencing discretion.

(c) The errors may be acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the exercise of the discretion, mistaking the facts, or not taking into account some material consideration. This is the nature of the appeal grounds asserting specific error.

(d) Alternatively, the error may be that the sentence is manifestly excessive or manifestly inadequate. This is the nature of the other appeal ground.

• [23] In Mitchell v Gibson,[2] Kelly J also noted the following principles applicable to an appeal against sentence from the then Magistrates Court (now the Local Court):

(a) It is not to be assumed that the failure to mention a sentencing principle means that it has been overlooked.[3]

(b) Local Court Judges are working under pressures which mean they are unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[4]

(c) An appellate court is entitled to assume that a Local Court Judge has considered all matters which are necessarily implicit in any conclusions reached.[5]

• [24] The appellant did not challenge the original sentence on file 22238177, nor the decision to restore the outstanding portion of the suspended sentence upon the breach of that suspended sentence by the offending the subject of file 22430549.
• [25] The appellant argued that the sentence for the endanger serious harm offence of three years and six months was manifestly excessive, as was the sentence for the possession of a controlled weapon. The appellant argued that the total effective sentence of three years and eight months was also manifestly excessive.

• [26] The principles applicable to an appeal against sentence on the ground of manifest excess are well-settled and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]) and Edmond v The Queen [2017] NTCCA 9 (at [4]). Those principles are:

(a) The sentence is not to be disturbed on appeal unless error is shown.

(b) The presumption is that there is no error.

(c) Appellate intervention is not justified simply because the sentence is markedly different from other sentences imposed in other cases.

(d) Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.

(e) Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.

(f) It must be shown that the sentence was clearly, not just arguably, excessive.

(g) There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.

• [27] Matters to be considered in such an appeal are the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[6]
• [28] The appellant submitted that there were several key features of the sentence that ought to be reviewed by this Court 'to determine whether the process of instinctive synthesis has correctly balanced the objective seriousness of the offending against the relevant subjective factors'. These matters were the Local Court's failure to differentiate between the offences the subject of the appellant's criminal history, including that many were not for domestic violence offences, the appellant's diagnosis of PTSD, its impact by making his time in custody more onerous and his engagement with treatment, and the Local Court's characterisation of this offending as at the lower end of the mid-range, with which the appellant did not take issue. The appellant submitted that, taking into account these matters, the instinctive synthesis 'would not support a head sentence of three years and eight months' imprisonment.
• [29] This submission did not address the principles applicable to appeals on the ground of manifest excess. It appeared to simply invite this Court to undertake the sentencing process again and arrive at a different conclusion to the Local Court. That is not the proper approach to such a ground of appeal. No reference was made to the range of sentences imposed for this offence, let alone whether this sentence was markedly different from other sentences, or how it was that the difference is such that in all the circumstances this Court should conclude that there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
• [30] The maximum penalty for the endanger serious harm offence is imprisonment for 10 years.
• [31] The Local Court did not specify the amount of the discount afforded for the appellant's guilty plea. However, the Local Court expressly noted both the full utility of the plea and the appellant's remorse as demonstrated by his desire to express his apology to CW and his concerns for her welfare and the impact of his actions on her. This makes it highly likely that a discount of 25% was applied, that being the discount commonly applied for an early plea with genuine remorse.
• [32] On that basis, the starting point for the sentence on this count was imprisonment for four years and eight months. Taking into account the appellant's personal circumstances, both positive and negative, the latter of which include his significant prior history of violent offences, including domestic violence, and the fact that this offending was committed only weeks after the appellant was sentenced for the offending on file 22238177 involving domestic violence against another partner, a starting point of four years and eight months for an offence at the lower end of the mid-range of seriousness is not manifestly excessive.
• [33] As to the appellant's complaint of manifest excess in relation to the sentence of imprisonment for six months for the offence of possessing a controlled weapon, the maximum penalty for this offence is imprisonment for one year. Even accepting the appellant's submission that this charge (of possession in a public place) must relate to the appellant's possession of the machete as he entered and exited the home of CW, that conduct involved taking the machete, concealed by the appellant, to the home of the victim, whom he had been coercively controlling by watching her across a period of hours, and which machete he subsequently used against her in the commission of the other offence. The appellant had a prior conviction for a similar offence and offences for violence involving the use of weapons. Again, the appellant made no reference to any comparative sentences and appeared to invite this Court to engage in the sentencing process itself to arrive at a different sentence. In any event, the sentence was made wholly concurrent with the sentence for the endanger serious harm offence, so any order identifying error in it (if one were established) would have no utility whatsoever.
• [34] Finally, the complaint that the additional two months added to the sentence to reflect the four months outstanding on the suspended sentence which was fully restored does not render the total effective sentence manifestly excessive. The appellant's arguments about this aspect are better dealt with under appeal ground 2.
• [35] For the above reasons, this ground is not made out.

Ground 2 - Misapplication of the principle of totality

• [36] The appellant submitted that the starting point of any sentence of imprisonment 'ought to be concurrent unless otherwise ordered', citing s 50 of the Sentencing Act 1995 (NT).
• [37] In Carroll v The Queen,[7] the Court of Criminal Appeal observed as follows:

The following principles are well established. First, s 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court 'otherwise orders'. There is no fetter on the discretion exercised by the Court and the prima facie rule can be displaced by a positive decision. Secondly, it is both impractical and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or cumulatively. Reasonable minds might differ as to the need for cumulation. Often there will be no clearly correct answer. Thirdly, an offender should not be sentenced simply and indiscriminately for each crime he is convicted of but for what can be characterised as his criminal conduct. The sentences for the individual offences and the total sentence imposed must be proportionate to the criminality in each case.

However, the overriding 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 gave rise to the offender's convictions are so closely related and interdependent. What is necessarily required in every case is a sound discretionary judgment as to whether there should be cumulation or concurrency.

• [38] The considerations which operate in the assessment of nexus, interdependency and sentence were set out by the Court of Criminal Appeal in Thomas v The Queen[8] and need not be repeated here.
• [39] The appellant argued that the principle of totality required a greater degree of concurrency between the sentences for the offending on file 22430549 and the restored suspended sentence on file 22104712 because the commission of the offending was the source of the breach and was crucial in the decision to fully restore the sentence. In The King v Satour-Brown,[9] Reeves J held (at [21]) that the appellant's 'recent re-offending' (i.e. the offending on file 22430549: at [15]-[16]) had 'essentially destroyed' the appellant's laudable initiatives over the previous 18 months to achieve his rehabilitation, and (at [22]) when those initiatives were set aside and the other relevant circumstances were considered, including the offending on file 22238177 and the recent re-offending, there was no injustice in restoring the suspended sentence in full.
• [40] The Local Court expressly referred to the principle of totality and held that there would be concurrency between the two sentences on file 22430549 to avoid an overly crushing sentence and there would be some concurrency with the restored sentence, but not full concurrency because of the need to reflect that the appellant made choices and there were different victims.
• [41] There were four months of a 10 month sentence unserved on the suspended sentence. To add two months of those four months to the two wholly concurrent sentences imposed for the offending on file 22430549 demonstrates a sound discretionary judgment as to whether there should be cumulation or concurrency.
• [42] For the above reasons, this ground is not made out.

Ground 3 - Insufficient weight to the early guilty plea

• [43] The appellant sought to make out this ground on the basis of a calculation of the initial head sentence that would, if there had been a discount of 25%, have yielded a sentence of three years and eight months. That initial head sentence would have been four years, 10 months and 15 days. It was then argued that the initial head sentence would have been manifestly excessive and, it followed, that insufficient weight was given to the early plea and the appellant's remorse.
• [44] That approach is obviously flawed when the total effective sentence included two months of a restored suspended sentence, to which any discount for the guilty plea would not have applied.
• [45] It is also flawed when the initial head sentence for the offending on file 22430549 was not manifestly excessive, for the reasons set out above.
• [46] The Local Court expressly referred to both the utilitarian value of the early guilty plea which meant that CW did not have to give evidence, and to the appellant's remorse for the effects of his offending on her. There is no warrant for an assumption that the Local Court gave these matters insufficient weight.
• [47] This ground of appeal is not made out.

• [48] None of the appellant's grounds of appeal have been made out.
• [49] The appeal is dismissed.

[1] House v The King (1936) 55 CLR 499 at 504-505.

[2] Mitchell v Gibson [2014] NTSC 59 at [12].

[3] Citing Van Toorenburg v Westphal [2011] NTSC 31 at [23] Blokland J.

[4] Citing Jambajimba v Dredge (1985) 33 NTR 19 at 22 per Muirhead ACJ.

[5] Citing Bartusevics v Fisher (1973) 8 SASR 601.

[6] Edmond v The Queen [2017] NTCCA 9 at [30] per Grant CJ and Hiley J, citing Phan v Western Australia [2014] WASCA 144 at [19] per Mazza JA (Martin CJ and Buss JA agreeing).

[7] Carroll v The Queen [2011] NTCCA 6; (2011) 29 NTLR 106 at [42], [44] per ???? JJ, cited in Thomas v The Queen [2017] NTCCA 4 at [34] per Grant CJ, Southwood and Riley JJ.

[8] Thomas v The Queen [2017] NTCCA 4 at [35] per Grant CJ, Southwood and Riley JJ.

[9] The King v Satour-Brown [2024] NTSC 102.