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2. On 3 December 1991, the Appellant, following pleas of guilty entered on 5 November 1991, was convicted of the following offences:
3. Unlawful use of a motor vehicle, contrary to s.218 of the Criminal Code.
4. Unlawful trespass on enclosed premises (namely the Port Keats Police Compound) contrary to s.5 of the Trespass Act.
5. On the first count, the Appellant was sentenced to 3 months' detention, to take effect from 4 November 1991; and on the second count, he was sentenced to a further 3 months' detention, cumulative upon the sentence imposed on the first count.
6. The grounds of appeal, as set out in the Notice of Appeal, are: "1. The learned Magistrate erred in not ordering the sentences to be served concurrently.
7. The learned Magistrate failed to have regard to the totality principle.
8. The sentence imposed was manifestly excessive.
9. The Appellant seeks leave to adduce fresh evidence relative to parity."
10. The circumstances of the offences as alleged and accepted by the learned Magistrate were that in the early hours of the morning of Monday, 4 November 1991, the Appellant in company with one other juvenile, A.K., and 3 adults entered the rear of the enclosure of the Port Keats Police Compound and helped push a Toyota Landcruiser motor vehicle out of the compound and onto a public road. One of the persons involved (not the Appellant) started the vehicle, and the Appellant entered it as one of the passengers. The vehicle was not a police vehicle. It had already been "hot-wired" and was stored in the Compound pending being returned to its lawful owner. The vehicle, which had no brakes, was driven around Port Keats at speed, skidding on dirt roads, and was later driven in circles around a house at a creek camp site. Eventually the ignition burnt out and the vehicle was left at the back of the creek camp. Later that day, the Appellant when spoken to by the police, admitted his part in the offences, and stated that his involvement was just for fun.
11. The Appellant and A.K. were arrested on 4 November 1991. Bail was refused. On 15 November, bail was granted to the Appellant until 30 November. At about midday on 3 December, at Port Keats, A.K. pleaded guilty and shortly thereafter he was sentenced by Mr Lowndes SM. At about 2 p.m. on the same day, at Darwin, the Appellant pleaded guilty and shortly thereafter he was sentenced by Mr Gillies SM.
12. At the hearing of this appeal, the Appellant's counsel tendered by consent of the counsel for the Respondent an affidavit by the counsel who had appeared for A.K.. Annexed to this affidavit was a copy of A.K.'s prior record of convictions identical to that provided to Mr Lowndes SM (except for the entries relevant to 3 December 1991) as well as copies of the relevant complaints. A.K. had been charged with another offence of unlawful use of a motor vehicle on 28 July 1991 as well as with the breach of a two year good behaviour bond into which he had entered on 6 March 1991 following his conviction for two counts of stealing and two counts of unlawful entry. On 6 March 1991, A.K. had also been convicted of two counts of unlawful use of a motor vehicle for which he had received a community service order. Also annexed was a copy of a report made available to Mr Lowndes SM by A.K.'s probation and parole officer.
13. I also received, by consent, certificates of conviction for A.K. relating to the sentences imposed upon him on December 3 1991. As well, a computer print-out of the Appellant's prior criminal record, and a copy of a report by the Appellant's probation and parole officer were tendered. This latter information was before Mr Gillies SM when he sentenced the Appellant.
14. A.K. was sentenced as follows:
15. For breach of the bond, 2 months' detention.
16. For unlawful use of a motor vehicle on 28 July 1991, 1 month's detention.
17. For unlawful use of a motor vehicle on November 4, 1991, 1 month's detention.
18. For trespass on enclosed land on 4 November 1991, seven days' detention. Each sentence was ordered to be served concurrently.
19. This material was put to me in order to support the fourth ground of appeal, viz., that the sentences imposed upon the Appellant were disparate from those imposed upon his co-offender.
20. The first issue raised by the reception of this evidence is whether this appeal has now become a hearing de novo. It is common ground (and also apparent from the transcript of proceedings before Mr Gillies SM) that Mr Gillies SM was not made aware of the sentences imposed upon A.K. by Mr Lowndes SM.
21. The question of the nature of an appeal under the Justices Act was determined by a reference to the Full Court of this Court in Messel v. Davern (1981) 54 FLR 376 to be neither an appeal stricto sensu, nor a hearing de novo, but a rehearing in the sense of a new trial and on the issues raised by the Notice of Appeal, using the evidence in the court below, with a discretion to receive further evidence. Since that decision, Part VI of the Justices Act has been substantially amended by the Justices Act Amendment Act 1983. For a time, the general approach by the majority of the justices of this Court was to follow the general approach in Messel v. Davern to appeals from discretionary judgments, including appeals against sentence. However, in 1987, O'Leary CJ held in Seears v. McNulty (1987) 28 A Crim R 121 (which was a Crown appeal against the inadequacy of the sentence), that an appeal under Part VI of the Justices Act may involve the exercise of either original or appellate jurisdiction. His Honour said (pp 127-128) after an extensive review of all of the authorities: "A consideration of Part VI of the Justices Act makes it clear that an appeal to this Court under that Part may take one of two forms, each of which involves the exercise of a quite different kind of jurisdiction. In the first place, it may take the form of a hearing at which further evidence is received pursuant to the provisions of s.176A of the Justices Act. In that case, the Court is exercising original, and not appellate, jurisdiction. Accordingly, the function of the court is to form its own independent opinion of the evidence on the material put before it, and give judgment as if it were sitting as a court of first instance. On the other hand, the hearing may take the form of a hearing only on the evidence tendered in the court below. In that case, the court is exercising truly appellate jurisdiction, and accordingly will interfere in accordance with well recognised principles according to which an appellate court acts as an appeal by way of rehearing from a lower court. If the decision appealed from is the exercise of a discretion, as for example, a sentencing discretion, the court will only interfere if there is some reason for regarding the discretion confided to the court of first instance as having been improperly exercised."
22. The same question was also agitated before Kearney J in Mason v. Pryce [1988] NTSC 28; (1988) 34 A Crim R 1. After an extensive review of the authorities, including Messel v. Davern and Seears v. McNulty, his Honour concluded (at 7): "I consider that the correct approach to an appeal against sentence under the Justices Act is that since the determination of a sentence is a discretionary judgment, this Court should not interfere by substituting its own judgment in a case where fresh evidence is not admitted on appeal, unless it is first satisfied that the magistrate fell into error and improperly exercised his sentencing discretion."
23. The approach taken by all of the Judges of this Court now appears to follow what was said by O'Leary CJ in Seears v. McNulty and by Kearney J in Mason v. Pryce. It was not submitted by either counsel that these authorities were wrong in the light of the Full Court's reasoning in Messel v. Davern.
24. In this appeal, the material to which I have referred relevant to the exercise of the sentencing discretion in the case of A.K. as well as the penalties imposed upon A.K., was admitted by consent pursuant to s.176 of the Justices Act. That section provides: "176. Evidence on Appeal. Subject to section 176A, no evidence shall be received on the hearing of the appeal other than such documents or exhibits as are mentioned in sections 174 and 175 and a record, made by means of sound recording apparatus or shorthand, of the deposition of a witness in the relevant proceeding produced out of the custody of the clerk for the relevant district, except by consent of the parties."
25. Section 176A confers a further power upon this Court to receive evidence otherwise than by consent of the parties, in certain limited circumstances. I do not think that any distinction can be made in this case between evidence received by consent under s.176 and evidence admitted pursuant to s.176A. Prima facie, if the remarks of O'Leary CJ in Seears v. McNulty which I have quoted above are to be taken literally, the reception of this material, if it is 'evidence', has the result that this Court is now called upon to exercise original, and not appellate, jurisdiction, and to form its own independent judgment as if it were a court of first instance.
26. However, it is my view that the remarks of O'Leary CJ are not so to be taken. The mere fact that additional evidence is received does not necessarily have that consequence, although in many cases, it may well do so. In particular, in cases where the Court receives evidence as to the facts and circumstances relevant to the sentence imposed upon a co-offender and the sentence imposed upon a co-offender by a court constituted by a magistrate who was not the same magistrate as the court appealed from, the correct approach to be followed is that laid down by the High Court in Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606. In that case, Lowe pleaded guilty to a charge of armed robbery and was sentenced by Kelly J to 6 years' imprisonment with hard labour with a recommendation that he should be eligible for release upon parole after serving two years. Lowe's co-offender was later sentenced upon a plea of guilty by a different justice of the Supreme Court of Queensland (Thomas J) for the same offence and was admitted to probation for three years and was ordered to perform 200 hours of community service. Thomas J was made aware of the sentence imposed upon Lowe by Kelly J Lowe appealed to the Court of Criminal Appeal which varied his sentence by recommending that he be eligible for parole after serving twelve months. There are two factual differences between that case and the circumstances of this appeal. Firstly, Lowe had been sentenced first, whereas technically the Appellant in this appeal was sentenced after A.K.. Secondly, Thomas J knew of Lowe's sentence, whereas in this case, Mr Gillies SM was not made aware of the sentences imposed by Mr Lowndes SM. In my opinion, neither of these factual differences are of any importance. The High Court considered the question of whether disparity between sentences merely disclosed error, or whether disparity is, in itself, a ground for intervention by an appellate court.

Gibbs CJ said (at 609-610) that the powers of the Court of Appeal were "wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed upon a co-offender" and that "the reason why the court interferes in such a case is that it considers the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal." Mason J (as he was then) said (at 613-614) that the correct principle to be applied was "that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate." Dawson J said (at 623-24) that "the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must