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The Queen v Day [2004] NTCCA 2

PARTIES: THE QUEEN

v

DAY, Stephen Clifford

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 17 of 2003

DELIVERED: 10 May 2004

HEARING DATES: 31 March 2004

JUDGMENT OF: MARTIN (BR) CJ, MILDREN AND THOMAS JJ

CATCHWORDS:

CRIMINAL LAW - appeal - Crown appeal - whether sentence manifestly inadequate - whether errors of fact made - offences committed after completion of a Home Detention Order - whether appellate court should interfere with sentence

Fox and Freiberg, Sentencing, 2nd ed, par 3.706 and par 3.803

Criminal Appeal Act 1912 (NSW) s 5D; Criminal Code s 414(1)(a); Misuse of Drugs Act (NT), s 5(1), s 5 (2)(a)(iv), s 5(2)(b)(iii), s 37(2) and s 37(3); Sentencing Act s 5(2)(h)

Duthie v Smith (1992) 83 NTR 21 at 28, applied

Everett v The Queen (1994) 181 CLR 295 at 302; Griffiths v The Queen (1976-1977) 137 CLR 293; Leroy (1984) 13 A Crim R 469 at 474; Maynard v O'Brien (1991) 78 NTR 16 at 22; Osenkowski (1982) 5 A Crim R 394; R v Allpass (1993) 72 A Crim R 561; R v Morton (2001) 11 NTLR 97; R v Hernando (2002) 136 A Crim R 451; R v Portolesi (1988) 48 SASR 417; R v Tait and Bartley (1979) 46 FLR 386, 24 ALR 473; Reg v Wilson (1981) 28 SASR 362 at 367-368; Raggett, Douglas and Miller (1990) 50 A Crim R 41, (1990) 101 FLR 323; The Queen v McKaye (1982) 30 SASR 312 at 317,318; The Queen v Palliaer (1984) 35 SASR 569 at 571,573; W v March (1983) 35 SASR 333 at 336; Fejo v Ilett; Wilton v Ilett ((SC) (NT), 26 February 1991, unreported); Ireland (1987) 49 NTR 10, 29 A Crim R 353, referred to

R v Choon Sien Tee (1993) 61 SASR 501 at 505, considered

R v Markarian [2003] NSWCCA 8; BC200300148; The Queen v Le Cerf (1975) 13 SASR 237 at 239-40, followed

REPRESENTATION:

Counsel:
Appellant: WJ Karczewski QC
Respondent: J Lawrence

Solicitors:
Appellant: DPP
Respondent:

Judgment category classification: B
Judgment ID Number:
Number of pages: 27

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Day [2004] NTCCA 2
No. CA 17 of 2003


BETWEEN:

THE QUEEN
Appellant

AND:

STEPHEN CLIFFORD DAY
Respondent

CORAM: B R MARTIN CJ, MILDREN AND THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 10 May 2004)

Martin (BR) CJ:
[1] This is an appeal by the Director of Public Prosecutions ("the Director") against a sentence of two years imprisonment, suspended immediately, imposed for three offences against the Misuse of Drugs Act ("the Act").
[2] The three offences were all committed within a nine day period in February 2003. On each occasion the respondent supplied a quantity of drugs to a registered informant. I gratefully adopt the summary of the facts of the offending set out in the judgment of Mildren J.
[3] The respondent gave evidence before the sentencing Judge about his role in each of the three offences. He said the man who was present at the house during the third offence, Rodney Francis, was the supplier of the drugs. The respondent said he was a friend of both the informant and the supplier and acted as a mere go between. He did not expect a profit other than to be given an ecstasy tablet for his own recreational use which was worth about $40.
[4] The finding of the sentencing Judge as to the role of the respondent was as follows:
One is entitled to be somewhat sceptical about the story told by the accused but in the end I do not think it is of great significance as to the outcome of today's proceedings. I agree with the Crown that even on his version of events, whether or not he profited personally from the particular transactions, he knew those around him were profiting and he was the one who facilitated the transaction. He did not simply introduce the people as Mr Elliott said. He was a true intermediary not just an introducer. Also it is quite clear that it was contemplated at the time that further drugs supplies were in prospect and that these transactions were seen at the time as being part of a continuing relationship.
Count 3 constitutes a not insubstantial wholesale commercial transaction whereby future re-supply was clearly contemplated, a matter that the prisoner demonstrated some reluctance to admit in the witness box. It is inconceivable in my view that the prisoner, given the prospect of an ongoing relationship of supply of drugs of this type and value, would not anticipate some financial return for risks even if that financial return lay in the future, rather than for being for these particular transactions.
[5] Against that background, the Director submitted that the immediate suspension of the sentence amounted to a disposition which was manifestly inadequate and that in a number of respects the sentencing Judge erred.
[6] The maximum penalty for the third offence was imprisonment for 14 years. As a consequence of that maximum penalty, the sentencing Judge was required by s 37(2) and (3) of the Act to impose a sentence that required the respondent to serve a period of imprisonment of not less than 28 days unless, "having regard to the particular circumstances of the offence or the offender", the Judge was "of the opinion that such a penalty should not be imposed". The appellant complains that the sentencing Judge erred in his application of s 37(2) and (3). Counsel submitted that the circumstances of the offence and of the respondent did not qualify as "particular circumstances" for the purposes of s 37(2) and (3).
[7] The sentencing Judge referred to the requirements of s 37, but he did not specifically identify the "particular circumstances" which led him to the opinion that he should not impose a penalty of imprisonment to be served. During his sentencing remarks his Honour identified a number of matters which it is reasonable to assume were the circumstances upon which he relied.
[8] First, his Honour noted that the respondent had co-operated with the police to the extent that, having been remanded in custody overnight, the respondent made a statement implicating Rodney Francis. Ground 2 (d) of the Notice of Appeal complains that his Honour erred in finding that the respondent had co-operated with the police.
[9] It is correct, as argued by the Director, that the respondent disclosed very little that was not already known by the police. In my opinion, however, the respondent was entitled to limited credit for his late co-operation: R v Choon Sien Tee (1993) 61 SASR 501 at 505. The sentencing Judge identified the particular co-operation to which he had regard and he was not in error in doing so.
[10] In the context of "particular circumstances" for the purposes of s 37(2) and (3), the co-operation of the respondent was a relevant circumstance personal to the respondent. But for the reasons mentioned it was worth little weight.
[11] The other matters to which the sentencing Judge had regard can be identified in the following passage from his Honour's remarks:
The prisoner, as I have said, has a criminal history, though not highly relevant.
He is 37 years old and having been born and bred in Darwin. He is the oldest of six children. He was schooled to year 11 having attended some 14 schools during the perambulations of his parents. He spent a good deal of time in Whyalla in South Australia and elsewhere in South Australia. He has not spent the whole of his life by any stretch in the Northern Territory. He has a good work record. He had cleaning contracts with Bi-Lo and Woolworths; those contracts he has lost as a consequence of adverse publicity arising from the present charges.
He normally lives with his fiancé and three young children, the youngest of whom is only 10 weeks old.
As I have said he has received adverse publicity, front page publicity in the local newspapers. I am satisfied that it is unlikely that he will re-offend. He has already suffered the loss of his business of cleaning contracts and in particular he has lost an annual income of $90,000 gross. He has heard the clang of the prison gate. He spent time in custody and I remanded him in custody overnight. He has very good work references and other references. He has a good work record and I regard the present offending as an aberration, albeit a serious aberration.
In the circumstances I am prepared to suspend the sentence from today rather than to require him to do the 28 days in prison.
[12] The Director submitted that when this passage is read with the earlier remarks about the respondent's prior offending, the sentencing Judge erred as to the relevance of the prior offending and in regarding the present offending as an "aberration". The earlier remarks about the prior offending were as follow:
The offender has a criminal record and I have before me the police record in the Territory and the South Australian offender history report. There is nothing of great significance in them save to say that there are a couple of drug possession charges of a minor nature, one in the Territory and one unidentified drug in South Australia, both of which attracted fines. The Northern Territory offence was a cannabis possession charge, some years ago. There were some convictions for dishonesty offences back in the 1980s, but for present purposes he may be treated, I think, as a first offender, certainly of the nature of the crimes with which we are dealing today.
[13] Although the sentencing Judge did not entirely disregard the respondent's prior offending, his Honour substantially disregarded it and essentially treated the respondent as a first offender.
[14] The respondent has a record of prior offending dating back to 1984. In 1985 he was convicted of attempted building breaking and larceny, building breaking and committing a felony and receiving. In respect of the second of those offences a sentence of eight months imprisonment was imposed which was suspended.
[15] In 1987, on the one occasion, the respondent was convicted of three offences of larceny, two of illegal use, two of damaging property and of being unlawfully on the premises. The offences were committed over a two day period. The end result was a sentence of six months imprisonment to be served cumulatively upon the eight months imprisonment to be served by reason of the breach of the previous suspended sentence.
[16] In 1994 the respondent was convicted of possessing a controlled substance and of possessing equipment to administer a controlled substance. The offence was committed on 25 February 1994. A fine of $60 was imposed.
[17] All of the offences to which I have referred were committed in South Australia. In addition, between 1984 and 1996 in that State the respondent was convicted of a number of road traffic type offences.
[18] In 1995 in the Northern Territory the respondent was convicted of possessing cannabis. He was fined $400. In 2001 and 2003 the respondent was convicted of road traffic type offences which included driving a motor vehicle while disqualified from holding or obtaining a driver's licence. A period of home detention for the last mentioned offences expired the day before the first of the offences under consideration was committed.
[19] In my opinion, although the respondent's record of prior offending is not as bad as many that come before this Court, nevertheless the nature and extent of his offending is such that he was not entitled to be treated as a first offender. Persons who have never offended against the law are entitled to credit in mitigation of penalty by reason of that fact. In addition, sometimes a court is able to treat an offender as a first offender notwithstanding prior offending. For example, the prior offending might involve very few minor offences committed many years previously when the offender was a child. The prior offending might only involve minor traffic offences.
[20] There is no inflexible rule as to when a court is entitled to treat a person as a first offender notwithstanding the existence of prior offending. However, underlying this approach is a recognition that persons of previous good character or who have not previously offended other than in limited minor ways are entitled to credit for their previous good character or absence of relevant prior offending. In my opinion, given the nature and extent of the offending to which I have referred, the respondent was not entitled to credit on that basis.
[21] I emphasise that the respondent is not to be punished again for his previous offending. However, by reason of his previous offending he was not entitled to claim credit by way of mitigation of penalty on the basis that he has previously been a person of good character or has not offended against the criminal law. In my view the sentencing Judge erred in essentially treating the respondent as a first offender.
[22] The error by the sentencing Judge as to the relevance of the respondent's prior offending is connected to the Director's complaint that his Honour erred in regarding the present offending as an "aberration". While a number of character references spoke well of the respondent, given the nature and extent of the offending under consideration and the respondent's previous offending, in my opinion it is difficult to justify a categorisation of the present offending as an aberration. The respondent willingly engaged in serious offending on three occasions over a period of nine days. In addition, there were strong indications accepted by the sentencing Judge that the respondent expected that future transactions involving the sale of prohibited drugs would occur.
[23] The other circumstances to which the sentencing Judge referred were the respondent's family commitments, good work record and loss of business because of adverse publicity. These were all relevant matters personal to the respondent, but they were not of substantial weight for the purposes of s 37(2) and (3).
[24] Section 37 of the Act is headed "Penalty Guidelines". The relevant provisions are as follows:
(2) In sentencing a person for an offence against this Act the court shall, in the case of an offence for which the maximum penalty provided by this Act (with or without a fine) is -
(a) 7 years imprisonment or more; or
(b) less than 7 years imprisonment but the offence is accompanied by an aggravating circumstance,
impose a sentence requiring the person to serve a term of actual imprisonment unless, having regard to the particular circumstances of the offence or the offender (including the age of the offender where the offender has not attained the age of 21 years) it is of the opinion that such a penalty should not be imposed.
(3) Where a court imposes a sentence requiring the serving of a period of actual imprisonment for an offence against this Act, it shall not impose a sentence of less than actual imprisonment for 28 days.
(4) Notwithstanding any other law of the Territory, where a person already serving a period of actual imprisonment is sentenced by a court to serve a period of actual imprisonment for an offence against this Act committed by the person while serving the first-mentioned period, the further period of actual imprisonment shall be served consecutively to the period of imprisonment currently being served by the person.
(5) Where, in proceedings for an offence against section 9 (other than an offence in relation to a commercial quantity of a dangerous drug specified in Schedule 1 or 2 or in circumstances referred to in section 9(2)(f)(ii)) it is proved to the satisfaction of the court that the offender is a drug dependent person, that fact shall be taken to be a circumstance of the offender for the purposes of section (2).
[25] The meaning of "particular circumstances" was discussed by Mildren J in Duthie v Smith (1992) 83 NTR 21. In a very helpful judgment his Honour reviewed a number of authorities in which different views as to the meaning of "particular circumstances" had been discussed. His Honour identified what he respectfully called the "narrow view" which required that the circumstances be in the nature of exceptional circumstances. He compared that view with the broader interpretation that s 37(2) intended no more restriction upon the sentencing discretion than to reverse the normal sentencing approach that non-custodial dispositions must first be considered and rejected before a sentence of imprisonment is imposed.
[26] Included in the authorities to which Mildren J referred was the view of Angel J in Maynard v O'Brien (1991) 78 NTR 16 that the expression "particular circumstances" as used in s 37(2):
means circumstances sufficiently noteworthy or out of the ordinary, relative to the prescribed conduct constituting the offence, of the offender, to warrant a non-custodial sentence (22).
[27] Angel J also adopted the remarks of Asche CJ in Fejo v Ilett; Wilton v Ilett (SC) (NT), 26 February 1991, unreported) that "such particular circumstances will be the exception rather than the rule… ".
[28] Mildren J agreed with the view that s 37(2) is designed to reverse the normal approach to sentencing of first discarding non-custodial dispositions. His Honour said (28):
It seems to me that the approach called for by the Legislature is to look at a sentence of actual imprisonment unless the circumstances of the offence or of the offender warrant otherwise. This places an onus on the accused to establish that either of those circumstances exist, and if that onus is not discharged, a 28 day minimum sentence of actual imprisonment must follow.
[29] I agree with those observations.
[30] Mildren J later remarked that some meaning must be given to the word "particular". His Honour rejected the view that "particular" can be equated to "exceptional". I agree with that rejection. The use of words such as "exceptional" or "special" is not unusual and if the Legislature had intended to impose such a stricter test it would have said so.
[31] After reviewing the authorities, Mildren J expressed his conclusion in the following passage (30):
In the end I consider that the preferable interpretation to be given to s 37(2) is, as Angel J concluded in Maynard v O'Brien, that the circumstances must be "sufficiently noteworthy or out of the ordinary, relative to the prescribed conduct constituting the offence, or of the offender, to warrant a non-custodial sentence", but, like Kearney J, I do not consider that the circumstances need to be so noteworthy or out of the ordinary as to convey the meaning that only in rare cases will there be found circumstances that fall within that class. Indeed, it is apparent that Angel J himself could not have intended that consequence given that he found that the fact that the appellant in that case was of exemplary character, a first offender, and intended to use the cannabis for his own use, amounted to "particular circumstances" warranting the imposition of a non-custodial sentence.
[32] That view of s 37(2) has been consistently followed by single Judges of this Court. The alternative view is that the word "particular" was meant only to confine the Court's consideration to circumstances relating to the particular offence and the particular offender rather than setting a standard which the circumstances must meet in order to qualify as "particular circumstances". However, as both the appellant and the respondent accepted that the principles to be applied are accurately set out in Duthie v Smith and no submissions were directed to this issue, this is not the appropriate occasion on which to consider the interpretation of s 37(2). The appeal should be determined on the basis of the principles enunciated in Duthie v Smith.
[33] While the respondent was not to be sentenced as a principal supplier of drugs because he acted as a go-between facilitating the transactions between the principal supplier and the purchaser, nevertheless his offending was serious. As the sentencing Judge correctly found, the respondent did not merely introduce the supplier and purchaser. He facilitated the commission of the crimes. The third transaction was a substantial drug transaction involving a considerable quantity of money. The respondent was aware that the drugs involved in the third transaction were intended for distribution. He contemplated engaging in further transactions. None of the crimes were accompanied by any significant circumstances of mitigation.
[34] The respondent was entitled to credit for his plea of guilty and that plea is a matter relevant to the issue of "particular circumstances" for the purposes of s 37(2). It must be acknowledged, however, that the plea was in the face of an overwhelming Crown case. As to the respondent's personal circumstances, while there were a number of positive features, the respondent's record of prior offending tended to weigh against a finding of "particular circumstances" personal to the respondent.
[35] In my view , neither the circumstances relating to the offence nor those personal to the respondent, either considered in isolation or in their cumulative effect, were capable of qualifying as "particular circumstances" for the purposes of leading to an opinion pursuant to s 37(2) that the respondent should not be required to serve a sentence of imprisonment. Even if s 37(2) achieves no more than a reversal of the usual approach by requiring that that court first consider a custodial sentence unless persuaded by the respondent that a non-custodial sentence was appropriate, the respondent failed to discharge that burden of persuasion.
[36] In my opinion, even if the sentencing process had been unaffected by any apparent errors, and notwithstanding the well known restrictions on Crown appeals discussed in the judgment of the High Court in Everett v The Queen (1994) 181 CLR 295 and other authorities mentioned by Mildren J, this is one of those rare occasions on which the Court is required to interfere. I have identified errors in the sentencing process which resulted in a failure to apply properly ss 37(2) and (3) of the Act. As a result, a manifestly inadequate sentence was imposed. Errors of principle occurred that require correction by this Court.
[37] For these reasons, I would allow the appeal for the purposes of quashing the order immediately suspending the sentence. I agree with Mildren J that as the Court is sentencing following a successful Crown appeal the sentence of two years imprisonment should be suspended after the appellant has served a period of two months. I also agree that the operational period should be three years commencing on 3 October 2003.
Mildren J:
[38] This is an appeal by the Crown against sentence.
[39] The respondent pleaded guilty to three offences against the Misuse of Drugs Act, namely:
(1) supplying methamphetamine (speed) (s 5(1) and s 5(2)(a)(iv));
(2) supplying MDMA (ecstasy) (s 5(1) and s 5(2)(a)(iv)); and
(3) supplying a commercial quantity of MDMA (s 5(1) and s 5(2)(b)(iii)).
[40] In February 2003, the respondent, a 37 year old self-employed cleaner residing at Tiwi, was approached by a registered police informant for the purpose of buying illegal drugs. The respondent indicated that he was able to supply drugs to the informant.
[41] As to count 1, on 13 February 2003, the respondent sent the registered informant a text message as follows: 'Do you want some wiz, if so, how much, it is a pretty good mix.' Arrangements were made for the purchase of an "eight ball" of "speed". An "eight ball" in street talk is an eighth of an ounce.
[42] Later that day, the registered informant and an undercover police officer met with the respondent near the Palmerston bus interchange where the respondent sold an eight ball of methamphetamine to the registered informant for $250. The drugs comprised a quantity of orange coloured powder within a plastic clip seal bag. The money for the purchase was provided to the registered informant by police. Later analysis confirmed that the powdered substance was methamphetamine. It weighed 3.654 grams.
[43] As to count 2, later the registered informant telephoned the respondent and asked to meet him the following day for the purpose of purchasing ecstasy. At about 12:50 pm on that day the respondent met with the registered informant and the undercover police officer at the Moulden shops in Palmerston. The respondent sold 20 ecstasy tablets to the registered informant for the sum of $840. The total weight of the 20 tablets was 4.402 grams. The exchange was effected when the respondent pointed to a packet of cigarettes on the shop display and the registered informant picked it up to find that it contained a small plastic clip seal bag containing 20 tablets bearing the Dexter logo. Later analysis confirmed that the tablets were MDMA otherwise known as ecstasy.
[44] As far as count 3 is concerned, the registered informant had several discussions with the respondent, culminating in an agreement to purchase a larger number of ecstasy tablets. On the afternoon of 22 February 2003 the registered informant telephoned the respondents and finalised arrangements to meet him to purchase 300 ecstasy tablets as well as some amphetamine. The registered informant was told to meet the respondent at his house. As the purchase was in bulk the registered informant was able to negotiate a price of $36 per tablet which was substantially less that the street price of around $70 per tablet.
[45] At about 5.45 pm the registered informant went to an address in Tiwi and spoke with the respondent. Another man was also present. The respondent took the registered informant with him into the kitchen and showed him a plastic lunch bag with something in it. The registered informant went outside the house and obtained $10,800 in cash from an undercover police officer.
[46] He took the money back inside and showed it to the respondent who gave him the MDMA tablets which in fact totalled 299 rather than 300. They were contained in three small plastic bags: two contained 100 tablets and one 99 tablets which were inside a larger plastic bag. The money was then handed over. There was discussion about the prospective supply of some amphetamine. The registered informant then left.
[47] Police immediately raided the premises where they found in the bin in the kitchen, four clip seal bags containing amphetamine weighing 6.3 grams and a further 99 ecstasy tablets. On the floor of the kitchen there lay $10,800 which had been paid over by the registered informant. Sergeant Cameron who executed the warrant saw the other man present during the exchange of drugs in relation to count 3, drop the $10,800 on the floor.
[48] There was found in a knapsack on the lounge room floor, one more ecstasy tablet. That was for the personal use of the respondent. The owner of the amphetamine and of an additional 99 tablets could not be identified by police and no charges have been pursued in respect of those drugs. The total weight of the 299 tablets supplied was 103.2 grams. Later analysis confirmed that they were MDMA tablets.
[49] The respondent was arrested and conveyed to Berrimah Police Station. He was interviewed by police, but declined to answer any questions about the money, the ecstasy tablets or the amphetamine. Police bail was initially refused. That decision was confirmed by a Stipendiary Magistrate. Ultimately bail was granted. As a result the respondent was in custody for three days.
[50] The respondent had prior convictions in both South Australia and the Northern Territory. On 16 January 2003 he had been sentenced to imprisonment for driving whilst disqualified, but the sentence was suspended upon his entry into a home detention order for a period of 4 weeks. That order expired on 12 February 2003, the day before the events giving rise to count 1 on the indictment. The respondent had a total of 25 prior convictions extending from 1984 to 2003. There were only 3 minor prior convictions for drug offending, the last being in 1995. There were 11 priors for dishonesty for which he had received suspended sentences of imprisonment and fines. The last of the dishonesty offences was in 1987. The remaining convictions were for traffic violations.
[51] In relation to counts 1 and 2, the maximum penalties prescribed for the present offending were imprisonment for 5 years or a fine of $10,000; in relation to count 3, the maximum penalty available was imprisonment for 14 years. In relation to count 3, the court was required by s 37(2) and s 37(3) of the Act to impose a sentence requiring the respondent to serve an actual sentence of imprisonment of not less than 28 days "unless, having regard to the particular circumstances of the offence or of the offender… it is of the opinion that such a penalty should not be imposed". It is accepted by the parties that s 37(2) is designed to reverse the normal approach to sentencing of first discarding non-custodial dispositions, and to look at a sentence of actual imprisonment unless the circumstances of the offence or of the offender warrant otherwise, the onus being on the accused to establish that either one of those circumstances exist. It is further not in contention that the accused must establish circumstances sufficiently noteworthy or out of the ordinary, relative to the proscribed conduct constituting the offence or to the circumstances of the offender, to warrant a non-custodial sentence; however, these circumstances do not need to be either rare or exceptional: see Duthie v Smith (1992) 83 NTR 21 at 27-28.
[52] The learned sentencing judge imposed an aggregate sentence of imprisonment of 2 years, suspended forthwith. The sentence was not back-dated to take into account the three days already served on remand.
[53] The grounds of appeal are as follows:
(a) The learned sentencing Judge erred in imposing a sentence which was immediately suspended in that:
(i) He failed to properly apply s 37(2) of the Misuse of Drugs Act which demanded an immediate custodial term of at least 28 days;
(ii) The immediate suspension of the sentence amounted to a disposition which was manifestly inadequate in all the circumstances of the offending and of the offender; and
(iii) There was nothing which was sufficiently noteworthy or out of the ordinary, relative to the proscribed conduct constituting the offence, or of the respondent, to warrant that course.
(b) The learned sentencing Judge erred in treating the respondent as a first offender.
(c) The learned sentencing Judge erred in regarding the offending as an aberration.
(d) The learned sentencing Judge erred in finding that the respondent had cooperated with the police.
(e) The learned sentencing Judge erred in giving insufficient weight to the objective circumstances of offending, and excessive weight to the factors in mitigation in favour of the respondent.
[54] The principles upon which this Court will allow an appeal by the Crown are well-known. Pursuant to s 414(1)(a) of the Criminal Code, an appeal to this Court lies as of right at the instance of the Crown "against any sentence with respect to a crime whether dealt with on indictment or summarily… and the Court may, in its discretion,… vary the sentence and impose such sentence… as the Court thinks proper". This provision is in similar terms to s 5D of the Criminal Appeal Act, 1912 (NSW) when it was considered in Griffiths v The Queen (1976-1977) 137 CLR 293. In this jurisdiction the relevant principles have been discussed on numerous occasions: see for example R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473; Ireland (1987) 49 NTR 10; 29 A Crim R 353; Raggett, Douglas v Miller (1990) 50 A Crim R 41; (1990) 101 FLR 323; R v Morton (2001) 11 NTLR 97. Despite the width of s 414(1)(a), this court will not interfere unless error either of fact or law is shown. Error includes the correction of a manifestly inadequate sentence, even if no particular error can be pointed to. However, the error must lead to the conclusion that the sentence imposed by the trial judge was not just inadequate but so obviously inadequate as to be unreasonable or plainly unjust. Even if error is shown, the court retains a discretion, notwithstanding that the error has lead to a manifestly inadequate sentence, to dismiss the appeal if it would be unjust to interfere. Delay by the Crown in lodging its appeal or bringing its appeal on for hearing or the failure of the prosecutor at first instance to properly assist the sentencing judge to avoid appellable error are well-known instances where the discretion may well be exercised unfavourably to the Crown: see R v Tait and Bartley, supra; Reg v Wilton (1981) 28 SASR 362 at 367-368; Everett v The Queen (1994) 181 CLR 295 at 302; R v Allpass (1993) 72 A Crim R 561; R v Morton, supra; R v Hernando (2002) 136 A Crim R 451.
[55] Turning now to the grounds of appeal, the Crown relies upon a number of alleged specific errors of fact. First it is submitted that the learned sentencing Judge erred in treating the respondent as a first offender. His Honour referred to the appellant's criminal record during his sentencing remarks. It is plain that his Honour thought that the record was "not highly relevant" and that the respondent could be treated as a first offender "certainly of the nature of the crimes with which we are dealing today". Except in one respect I do not think his Honour misunderstood the respondent's prior criminal history, or failed to properly take it into account. The exception to which I refer is that the respondent re-offended immediately after his home detention order had expired. The home detention order was imposed for driving whilst disqualified and not for drug offending. The record showed that the respondent had no convictions for drug offences except of a minor kind some 7 or more years previously, and no offences for dishonesty since 1987. The relevant principles are discussed in Fox and Freiberg, Sentencing, 2nd Ed, para 3.706 (omitting references):
Not every prior conviction or finding or guilt is considered relevant in the exercise of sentencing discretion. Previous offences that are significantly different from the current offence, or are regarded as uncharacteristic of the offender, may be given little or no weight unless, overall, the disparate offences reveal a profound contempt for the law and a deliberate desire to enrich oneself by deliberately embarking on a course of criminality. Crimes committed while a juvenile and dealt with by the Children's Court will be accorded less weight. Similarly, offences that occur after a significant period free of crime will be regarded less seriously. The longer the period without offending the greater the mitigatory effect, even if the previous record was considerable. The gap in the record must be due to the defendant's own efforts at rehabilitation and not merely because the person's law breaking was undetected or because a sentence of imprisonment was being served.
[56] In my opinion the learned sentencing Judge ought to have given more weight to the respondent's criminal record than he did given that the re-offending occurred immediately after the home detention order had expired. However, it was conceded that his Honour's attention was not specifically drawn to that fact. In these circumstances I would not be inclined to interfere on this ground.
[57] Next it was submitted that his Honour erred in finding that the respondent had cooperated with the police. The respondent was called to give evidence, and during the course of cross-examination by the prosecutor he was asked if he was prepared to give evidence against his supplier, a person whom I will call R. The respondent said he was "just a middle man", that he was to get nothing out the sales except a tablet for himself, and that he was prepared to give a statement to the police. The sentencing hearing was adjourned to enable this to happen and the respondent indeed supplied a four page statement implicating R. Counsel for the Crown submitted that the statement said "no more than what's required to support the exonerative evidence he gave yesterday and you might see it as being not a full and frank account of his dealings". The evidence was that R had been arrested at the time of the police raid, had originally been charged, but the charges were subsequently withdrawn through lack of evidence, and therefore, so it was put, the respondent had not given any information that the police did not already have.
[58] Fox and Freiberg, supra at para 3.803, observe:
The criminal law encourages the betrayal of criminals. It is often the case that the only way of detecting offences and obtaining convictions is through obtaining information from other offenders. One of the ways of stimulating others to inform and to destroy the precept that there should be honour among thieves is by making allowances in sentencing for cooperation with law enforcement authorities.
[59] These principles are reflected in s 5(2)(h) of the Sentencing Act.
[60] However, the weight to be given to this factor depends upon the nature and quality of the cooperation given. The information must be useful in the sense that property is recovered, or other offenders are able to be apprehended and prosecuted. The Court is dependent upon the view the prosecutor takes of the usefulness of the information. In R v Portolesi (1988) 48 SASR 217, King CJ said at 219:
I believe that criminal courts have felt obliged to approach questions as to whether an offender has cooperated with the authorities upon a basis which differs from other questions of fact affecting sentence. What merits leniency is not cooperation with the authorities considered in itself, but that cooperation together with the satisfaction of the authorities with it. The courts cannot properly enter upon a fact finding exercise to determine the honesty and the utility of information which is given to the authorities by an offender. There would be many inhibitions upon the ability of the law enforcement authorities to place evidence before the court contradicting an offender's claim of genuine cooperation with them. The privilege which must surround sources of police information would be but one of those inhibitions. For those reasons criminal courts have, I believe, felt obliged to accept the view of the law enforcement authorities expressed through counsel for the prosecution as to whether an offender has genuinely cooperated and provided useful information. I would deprecate any suggestion that criminal courts should act upon the assertion by the offender that he has cooperated with the authorities where that claim is not supported by counsel for the prosecution. The prosecuting authorities have a responsibility to be fair and candid with the court with respect to such matters and the court must rely upon them. That does not imply that courts should allow their hands to be tied. There may be exceptional cases in which the judge, either because he suspects want of good faith on the part of the prosecuting or law enforcement authorities or for some other reason, feels that justice demands some enquiry into the truth of an offender's claims. In general, however, an offender can only expect to obtain leniency of the court on this ground if he has cooperated with the law enforcement authorities and has, in addition, succeeded in satisfying them as to the genuineness and usefulness of his cooperation.
[61] In this case, there was no indication by the prosecutor that the respondent's evidence was of any assistance. Because the authorities did not regard the respondent's account as frank and truthful it must be inferred that the statement given by the respondent was not considered enough to launch a further prosecution against R. In these circumstances, there was no basis for the conclusion of the learned sentencing Judge that the respondent had cooperated with the authorities and the learned sentencing Judge was in error.
[62] There is no complaint about the head sentence imposed, but the Crown further contends that the decision to fully suspend the head sentence was wrong and has led to a manifestly inadequate sentence. The reasons advanced by the learned sentencing judge for taking this course were expressed by his Honour as follows:
In terms of s 37(2) and s 37(3) of the Misuse of Drugs Act, I am required to pass a sentence of actual imprisonment of not less than 28 days, unless I am of the opinion that such a penalty should not be imposed in the circumstances.
The prisoner, as I have said, has a criminal history, though not highly relevant.
He is 37 years old and having been born and bred in Darwin. He is the oldest of six children. He was schooled to Year 11 having attended some 14 schools during the perambulations of his parents. He spent a good deal of time in Whyalla in South Australia and elsewhere in South Australia. He has not spent the whole of his life by any stretch in the Northern Territory. He has a good work record. He had cleaning contracts with Bi-Lo and Woolworths; those contracts he has lost as a consequence of adverse publicity arising from the present charges.
He normally lives with his fiancé and three young children, the youngest of whom is only 10 weeks old.
As I have said he has received adverse publicity, front page publicity in the local newspapers. I am satisfied that it is unlikely that he will re-offend. He has already suffered the loss of his business of cleaning contracts and in particular he has lost an annual income of $90,000 gross. He has heard the clang of the prison gate. He spent time in custody and I remanded him in custody overnight. He has very good work references and other references. He has a good work record and I regard the present offending as an aberration, albeit a serious aberration.
In the circumstances I am prepared to suspend the sentence from today rather than to require him to do the 28 days in prison.
[63] Irrespective of whether or not the respondent had a lack of relevant prior convictions, this did not deserve a significant degree of leniency. Those who participate in the drug trade are often selected by those higher in the chain because of their lack of prior convictions in order to avoid detection, and for this reason the Courts do not extend to first offenders the same degree of leniency as is customary for other offences: see Leroy (1984) 13 A Crim R 469 at 474. In any event, the respondent was not a first offender.
[64] The other grounds for leniency appear to be his good work record and the loss of employment contracts. I am unable to see how any significant weight can be attached to those factors. The respondent may have lost contracts but there is no evidence that he has suffered any significant ongoing financial loss or loss of capacity to earn income as a cleaner. There is no evidence of lost earnings. The respondent's good work record and character references, whilst deserving of some weight, cannot be given the same weight in a case involving drug trafficking for the same reasons that prior lack of convictions is given less weight. It is difficult to be sympathetic to the respondent for the adverse publicity he received. He brought this upon himself by his offending. However, the learned sentencing judge was satisfied that the respondent was unlikely to re-offend and I think his Honour's views on that subject ought to be respected, as he had the advantage of seeing and hearing the respondent give evidence. In this respect, the respondent had pleaded guilty, and his counsel had submitted that he had done so at the very first opportunity. There was also a submission that the respondent knew he was facing a term of imprisonment "and very much regrets the situation he's got himself in". Although his Honour did not refer to these matters at all in his sentencing remarks, they were not disputed by the Crown and must have been in his Honour's contemplation. However, whilst that may justify a partially suspended sentence, it is not enough in a serious case to warrant one which is fully suspended.
[65] As against those matters, there is the serious nature of the offending which began the day after the respondent completed his home detention order. The most serious charge involved 299 ecstasy tablets. The maximum penalty for this offence was imprisonment for 14 years. The learned sentencing judge had found that the respondent was a true intermediary, not an introducer, and whether or not he profited from the transactions, he knew that those around him were profiting, and he was the one who facilitated that transaction. His Honour found that count 3 involved "a not insubstantial wholesale commercial transaction where future re-supply was clearly contemplated" and that it was inconceivable that the respondent did not anticipate some financial returns given the risks involved.
[66] Mr Karczewski QC, for the appellant, drew our attention to the observations of Wells J in The Queen v Le Cerf (1975) 13 SASR 237 at 239-40, a passage cited with approval by Hulme J (Heydon JA and Carruthers AJ concurring) in R v Markarian [2003] NSWCCA 8; BC200300148:
Where evidence discloses that a convicted person is highly placed in an organisation for the importation, distribution, and sale, of drugs, contrary to law, it is, to my mind, obvious that, other things being equal, he must expect condign punishment. Substantial retribution must be exacted from those who deliberately, cynically and greedily seek to profit on a large scale from breaking the law.
But again, assuming all other things are equal, it does not follow that a person less exalted in the organisation can confidently expect that his punishment will be correspondingly less severe. The ambit of his direct responsibility in deliberate law-breaking is, in a sense, less simply because his authority and role are less important to the organisation as a whole, but it remains true that he has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it in only because persons like him are ready, able, and willing, to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middlemen and underlings, there would no top men in an organisation. If an organisation is starved of recruits it must collapse.
It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organisation at any level - I repeat at any level - must expect, and will receive, a heavy penalty. I do not in saying that mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive.
[67] I respectfully agree.
[68] Seen in the light of the gravity of the offending, I do not consider that the factors prayed in aide of mitigation warranted a fully suspended sentence notwithstanding the forceful submission of Mr Lawrence for the respondent. Whilst I accept that there must always be a place for leniency in sentencing (see the observations of King CJ in Osenkowski (1982) 5 A Crim R 394), the decision to extend leniency must be justifiable having regard to the circumstances of the offence and of the offender. Mr Lawrence submitted that the two year head sentence was longer than the head sentences imposed in two similar cases to which his Honour was referred and that his Honour imposed a longer head sentence because he was going to fully suspend the sentence. I do not accept this submission. There is nothing in his Honour's sentencing remarks to support this contention. The "similar cases" did not demonstrate a sentencing range. It would be wrong, in any event, to increase the head sentence because the sentence is to be suspended: W v March (1983) 35 SASR 333 at 336; The Queen v Palliaer (1984) 35 SASR 569 at 571, 573; The Queen v McKaye (1982) 30 SASR 312 at 317-318. In my opinion, his Honour's order has resulted in a sentence which is not merely inadequate, but is plainly unjust.
[69] The question then is whether, notwithstanding that error has been demonstrated, this Court ought to interfere and impose some other lesser sentence. In this case, the respondent has been at liberty since 3 October 2003. To require him to serve an actual sentence of imprisonment now might be considered unjust: see the observations of Muirhead AJ noted in Ireland, supra at 49 NTR 27; 29 A Crim R 370-371. On the other hand, as Kearney J said in Raggett, Douglas and Miller, supra, at 50 A Crim R 44; 101 FLR 327:
Although this jeopardy principle is now well accepted as one basis for a restricted approach to Crown appeals, it appears to me that it may be little more than an argument with the existence of Crown appeals. The extent of "the freedom which is his" is controlled by the particular legal regime; in this case that regime includes a right in the Crown to appeal on sentence. The effect of the jeopardy consideration, in practice, is threefold. First, the appellate court is more reluctant to increase a sentence than to reduce it; a "somewhat stronger case" is required, as Smith J put it in Fortune v Parre (1983) 14 A Crim R 289 at 291. Secondly, as Deane J pointed out in Griffiths v The Queen (1989) 167 CLR 372 at 386, in considering the "aspect of double jeopardy", a sentence imposed by a Court of Criminal Appeal following a successful appeal by the Crown may be "less than would have been appropriate were it not for the fact that it was imposed as an increased sentence by an appellate court". Thirdly, it is relied on to warrant the residual discretion to dismiss a Crown appeal, even though manifest inadequacy is established: see R v Holder [1983] 3 NSWLR 245 at 255-256, per street CJ. There are of course the other factors mentioned by Muirhead AJ in R v Ireland which point to a restricted approach to Crown appeals.
[70] In my opinion, given the importance of general deterrence in cases of this kind, a proper sentence required the respondent to have served at least 10 months imprisonment before the balance of his sentence was suspended. As the respondent has already been on conditional liberty for some time, I do not think it would now be just to simply impose a partially suspended sentence of 10 months. I would allow the appeal and quash the order suspending the sentence imposed on 3 October 2003. In lieu thereof I would order that the sentence be suspended after having served 2 months thereof. I would fix an operational period of 3 years commencing from 3 October 2003.
Thomas J:
[71] I have had the benefit of reading the Draft judgments prepared by Martin CJ and Mildren J. I agree the appeal should be allowed. I agree with the orders proposed by Mildren J.
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