Daniels v The Queen [2007] NTCCA 9

PARTIES: DANIELS, Ronald Naditch

v

THE QUEEN

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

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 1 of 2007 (20627198, 20616174)

DELIVERED: 16 AUGUST 2007

HEARING DATES: 8 AUGUST 2007

JUDGMENT OF: MARTIN (BR) CJ, ANGEL AND RILEY JJ

APPEAL FROM: OLSSON AJ, 18 DECEMBER 2006

CATCHWORDS:

APPEAL – CRIMINAL LAW
Appeal against sentences – offences against Misuse of Drugs Act 1990 (NT) – whether sentence manifestly excessive – whether sufficient weight given to question of totality – commercial drug activities in Aboriginal communities as an aggravating factor – total sentence manifestly excessive – appeal allowed in part – sentence reduced.

Misuse of Drugs Act 1990 (NT)
R v King (1988) 48 SASR 555, applied.
Police v Cadd (1997) 69 SASR 150; R v Greenhalgh (Riley J, 26 June 2003, unreported, SCC 20306945); R v Place (2002) 81 SASR 395; Yardley v Betts (1979) 22 SASR 108; Markarian v The Queen (2005) 79 ALJR 1048; Green v The Queen (2006) 19 NTLR 1; Cranssen v The King (1936) 55 CLR 509, referred to.

REPRESENTATION:

Counsel:
Appellant: J Tippett QC
Respondent: E Armitage

Solicitors:
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: A
Judgment ID Number: Mar0710
Number of pages: 18

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

Daniels v The Queen [2007] NTCCA 9
No. CA1 of 2007 (20627198, 20616174)

BETWEEN:

RONALD NADITCH DANIELS
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, ANGEL AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 16 August 2007)

Martin (BR) CJ and Riley J:
Introduction
[1] This is an appeal against sentences imposed for crimes against the Misuse of Drugs Act (“the Act”). Coupled with the restoration of previously suspended sentences, the total period to be served by the appellant is seven years and 58 days imprisonment in respect of which a non-parole period of four years was fixed.


[2] The crimes were charged in two Indictments. After allowing a reduction of 25 percent in recognition of the appellant’s timely pleas, the learned sentencing Judge imposed the following sentences:

1. Aggravated Unlawful Possession of Cannabis (14 June 2006): two years and three months imprisonment to commence at the expiration of the restored sentences of 58 days.
2. Possession of Property Obtained from the Commission of an Offence (14 June 2006): three years imprisonment to be served concurrently with the sentence imposed for the first offence.
3. Aggravated Unlawful Possession of Cannabis (26 October 2006): four years imprisonment to be served cumulatively upon the sentence imposed for the second offence.


[3] Leave to appeal was granted in respect of six grounds of appeal, but on the hearing of the appeal counsel for the appellant abandoned all but two grounds. In substance counsel submitted that the individual sentences and total period to be served are manifestly excessive and that the learned sentencing Judge failed to give sufficient weight to the question of totality.


[4] The appellant is now 28 years of age. He was born to a woman of the Ngukurr community and his parents separated when he was a young child. He was raised by his mother and aunt. At the age of 17 years the appellant was taken through men’s business by his uncle. After schooling at the Ngukurr community the appellant attended Kormilda College, but left during year 12 following which he obtained employment with the CDEP program learning skills as a brick layer and carpenter. The appellant has also gained experience as a stockman.


[5] The sentencing Judge accepted that the appellant began smoking cannabis in about 1999 as a recreational drug. Counsel informed the Judge that the appellant did not suffer any mental illness or sickness as a consequence of the use of cannabis, but “fell into the drug trade by gradual process” leading ultimately to the purchases of large amounts of the drug on credit on condition that the drugs would be resold by the appellant for the supplier.


[6] The offending under consideration occurred in June and October 2006. They were not the first occasions on which the appellant breached the criminal law. He has a record of prior offending dating back to 1998. A significant percentage of the prior offending relates to driving offences, but the appellant has also committed three offences of assaulting a female and, significantly, has previously offended against the drug laws.


[7] On 8 June 2005 the appellant was convicted of five drug offences committed on 29 May 2004, 6 August 2004 and 30 April 2005. Those offences also concerned small quantities of the drug cannabis and possession of implements for administering drugs. The sentences included periods of 30 and 28 days imprisonment. A total period of 58 days was suspended. The operational period of the bond was two years and the offending under consideration was a breach of that bond.


[8] Against this background, the appellant committed two offences on 14 June 2006. On that day the appellant came into possession of a large quantity of cannabis following which he sold the cannabis to members of the Ngukurr community. Part of the proceeds, $8,700 was placed in a blue pencil case and hidden in a black carry bag in a room at the community occupied by another person. An additional amount of $3,000 was placed in a white sealed plastic bucket which also contained 560 small plastic clip seal bags of cannabis. Late in the afternoon of 14 June 2006, acting on information received from the public, police executed a search warrant at the premises and located the money and cannabis. The total weight of cannabis was 597.6 grams which is a commercial quantity for the purposes of the Misuse of Drugs Act.


[9] The appellant was not at the premises at the time police seized the cash and cannabis. He attended voluntarily at the Ngukurr Police Station on 19 June 2006. In a record of interview he denied any knowledge of the cannabis and money.


[10] The appellant’s conduct on 14 June 2006 formed the basis of the offences of Aggravated Unlawful Possession of Cannabis and Possessing Property, namely $11,700, obtained from the commission of an offence against s 5 of the Act, knowing it to have been so obtained. The maximum penalties for those offences are 14 and 25 years.


[11] The third offence was also Aggravated Unlawful Possession of Cannabis. It was committed on 26 October 2006 while the appellant was on bail for the offences committed in June 2006.


[12] During the afternoon of 26 October 2006 the appellant was at premises in Darwin with his family. He placed a bag containing 54 clip seal bags of cannabis under the rear seat of his mother’s vehicle. The total weight of the cannabis was 1.232 kilograms. The appellant told family members that he would be driving his mother to the Ngukurr community and the family agreed to accompany them. Having left Darwin at about 5pm, the vehicle was stopped by police at Adelaide River where a search revealed the cannabis. Due to the appellant’s tiredness and the complexity of the matter, police did not attempt to interview the appellant that day. The following day the appellant exercised his right to silence.


[13] The quantities of cannabis involved in each drug offence were commercial quantities for the purposes of the Act. The sentencing Judge found that “over time” the appellant “embarked upon major activity as a re-seller of cannabis” for his supplier. His Honour correctly observed that “there is not the slightest doubt” that the appellant was “party to a major drug distribution activity”. Similarly, the sentencing Judge correctly found that the appellant intended to supply the drugs to other persons for commercial gain and that the offending was “towards the more serious end of the range for offences of their types”. His Honour accurately described the third offence as a separate and deliberate crime committed while the appellant was on bail.


[14] As to the circumstances of the offending, the sentencing Judge noted the submission that following arrest for the offences committed in June 2006, the appellant’s supplier held the appellant responsible for the loss of money and drugs and put pressure on the appellant to sell further drugs. Although his Honour did not specifically state that he accepted that submission, the general tenor of his Honour’s remarks suggests that he did so.


[15] Having referred to the fact that the appellant commenced smoking cannabis in about 1999 as a recreational drug, the sentencing Judge said:

“… It seems obvious that you steadily became addicted to it and that you fell into the drug trade by degrees. You purchased cannabis for your own use on credit and then were persuaded by the supplier to sell quantities of cannabis to provide funds with which to feed your habit and pay your debts.”


[16] Counsel for the appellant conceded that the sentencing Judge erred in favour of the appellant in finding that the appellant was addicted to cannabis. The submissions of counsel for the appellant before the sentencing Judge were to the contrary. After putting to the sentencing Judge that initially the appellant smoked cannabis in 1999 as a recreational drug for relaxation, counsel for the appellant advanced the following submission:

“… He’s fortunate enough, your Honour, to tell me that he’s never received any mental illness or sickness from the use of the drug but he fell into the drug trade by gradual process and it is perhaps a very salient lesson for any person who contemplates the use of this drug is that, as I’ve indicated, what started off as a user, then purchasing larger amounts of the drug and then receiving it on tick with conditions obviously of selling that drug and then ending up in respect of this particular offence.”


[17] Contrary to any suggestion of addiction, counsel informed the sentencing Judge that after the appellant had been sentenced in the Court of Summary Jurisdiction on 8 June 2005 and received a suspended sentence, together with his family the appellant “decided to go straight and not to be involved in selling the drugs and also the smoking of drugs”. In addition, as to motivation for committing the offences, having put to the Judge that the appellant had decided not to continue smoking cannabis, counsel for the appellant made the following submission:

“Unfortunately he was contacted in the early part of the year, of this present year and was told that he owed money. The only way out of that debt was to return to selling of drugs. …”


[18] As to the third offence in particular, counsel submitted that the third offence was an act of desperation because the appellant had received a call from the supplier stating that he owed $15,000 in respect of the drugs seized from the first offence.


[19] Leaving aside the question of addiction to which we have referred, there is no error apparent in the approach of the sentencing Judge. His Honour had regard to all relevant facts and plainly gave consideration to matters of mitigation including the motivation for the offending and the appellant’s regret and personal circumstances. His Honour allowed a reduction of 25 percent in recognition of the appellant’s pleas of guilty and that was an appropriate reduction.


[20] In our view there is no basis for criticising the individual sentences. They are toward the upper end of the range of the sentencing discretion, but well within that range. The question is whether, notwithstanding that the Judge had regard to the totality principle, the end result is manifestly excessive and outside the proper range of the sentencing discretion. In this regard, it is to be borne in mind that to reach a period of seven years after a 25 percent reduction for the pleas, his Honour’s starting point must have been nine years and four months. The critical question is whether the period of nine years and four months is outside the proper range of a sentencing discretion having regard to the gravity of the total criminal conduct and all other relevant circumstances.


[21] The appellant was actively involved in what the Judge correctly described as a “major drug distribution activity”. Large quantities of cannabis and money were involved. The offending took place in breach of a suspended sentence previously given in respect of drug offences. The third offence was committed while the appellant was on bail in respect of the two offences committed four months earlier and involved a particularly large quantity of cannabis being approximately double the quantity involved in the first offence.


[22] Although the appellant was not in the position commonly referred to as a “principal”, nevertheless he played an important and essential role in the commercial distribution. He did so for profit. The circumstances in which the appellant came into possession of the cannabis in June 2006 are known only to the appellant, but in October 2006 the appellant did not merely wait in the community of Ngukurr to receive the cannabis. He obtained the cannabis in Darwin for the purposes of conveying the cannabis to the community of Ngukurr and selling it within that community.


[23] As we have mentioned, the appellant grew up in the community of Ngukurr. Within that community he committed the offences for which he was sentenced on 8 June 2005. Notwithstanding the lesson of being caught and the extension of leniency through the suspension of the sentences imposed in June 2005, after 12 months the appellant re-offended in the same community and the gravity of his offending escalated. That escalation continued in October 2006 notwithstanding that the appellant had been arrested in June 2006 and granted bail.


[24] It is a significantly aggravating feature of the appellant’s criminal conduct that he was engaged in the drug trade within an Aboriginal community. In reality, the appellant chose targets for his criminal conduct that were particularly vulnerable, namely, members of the Aboriginal community in which he grew up. The Ngukurr community is a small Aboriginal community comprised of less than 2,000 people. In June 2006, having sold sufficient cannabis within that community to amass proceeds in the order of $11,700, the appellant was left in possession of 560 small plastic clip seal bags containing a total weight of cannabis of 597.6 grams. If the 1.232 kilograms of cannabis in the possession of the appellant in October 2006 was similarly divided into plastic clip seal bags, approximately 1,100 such bags would have been involved and available for sale within that small community.


[25] The criminal courts of the Northern Territory are all too familiar with the devastating effects of cannabis within Aboriginal communities across the Territory. It is not correct to view such offending as victimless. There are countless victims. They are the users of cannabis within the Aboriginal communities and others in those communities who are adversely affected by the devastating impacts upon the users. In particular, the children of heavy users suffer dreadfully.


[26] Over many years, sentencing Judges and this Court have repeatedly emphasised the gravity of the criminal conduct involved in the distribution of cannabis within Aboriginal communities. Offenders have been on notice that significant terms of imprisonment will be imposed for such offending. In R v Greenhalgh (Riley J, 26 June 2003, unreported, SCC 20306945), the sentencing Judge expressed the view that the current trend of sentences appeared to be low and issued an explicit warning that in future cases his Honour intended to increase penalties.


[27] Notwithstanding the continued emphasis on the gravity of offending and the warning given in 2003, counsel for the appellant submitted that the individual sentences were too long and that the total period to be served is so out of line with current sentencing standards or trends as to demonstrate that the total period is manifestly excessive. As we have said, in our view the individual sentences were well within the range of the sentencing discretion. However, the total length of the sentence to be served has given us cause for serious concern.


[28] In support of his contention that the total period to be served is manifestly excessive, counsel for the appellant referred to a number of individual sentences from which he submitted the Court should conclude that the total period under consideration is well outside the upper end of sentencing standards established by those decisions for offences of the type under consideration. It was common ground that the researches of counsel have been unable to identify a previous decision in which the total period to be served was as long as seven years after allowance for a plea of guilty. But it must also be recognised that none of the previous decisions involved the combination of aggravating factors to which we have referred.


[29] The role of sentencing standards must be properly understood. They do not amount to a fixed tariff, departure from which will inevitably found a good ground of appeal. We respectfully agree with the observations of Cox J in R v King (1988) 48 SASR 555 as to the proper role of sentencing standards (557):
“… In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. … It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same. …”


[30] The observations of Cox J were subsequently cited with approval by Doyle CJ in Police v Cadd (1997) 69 SASR 150 at 165. Two other members of the Court generally agreed with the judgment of Doyle CJ and the approach of all Judges was consistent with the views expressed by Cox J. The observations of Cox J were also cited with approval by the Court of Criminal Appeal comprised of five Judges in R v Place (2002) 81 SASR 395.


[31] The combination of aggravating features of the appellant’s offending to which we have referred removes that offending from the “ordinary” or “run of the mill” offending against the drug laws. For this reason, the previous sentences to which counsel drew our attention are of limited value. However, a general sentencing range is apparent and, although the circumstances of the appellant’s offending plainly require a sentence outside the average range, we have reached the view that the gravity of the appellant’s total criminal conduct does not justify a total period to be served that is as far outside the general sentencing range as seven years. For these reasons we have concluded that the total period to be served is manifestly excessive.


[32] We would not interfere with the individual sentences. We would allow the appeal for the limited purpose of setting aside the order that the sentence of four years imprisonment imposed for the third offence be served cumulatively upon the sentence of three years imposed for the second offence. In our view, having regard to the allowance of 25% to reflect the pleas of guilty, the appropriate total period to be served is five years and nine months. In order to reach that total period we would direct that of the four years imposed for the third offence, two years and nine months be served cumulatively upon the sentence of three years imposed for the second offence. We would fix a non-parole period of three years and six months.


[33] In arriving at the total period of five years and nine months, we recognise that the period is toward the upper end of the current range of the sentencing discretion. However, in our opinion that period is proportionate to the gravity of the appellant’s total criminal conduct and is not crushing.


[34] Notwithstanding the seriousness of the appellant’s criminal conduct, we have felt compelled to interfere because of current sentencing standards. Had it not been for those standards, we would not have interfered with the sentence. In our view the current standards are too low and should be increased. We now set out our reasons for that view.


[35] The use of cannabis in remote Aboriginal communities is part of a widespread problem arising out of substance abuse of many kinds in those communities. The substance most commonly abused is alcohol, but cannabis and other drugs have a significant impact.


[36] The recently published report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse included a finding that (161):
“… alcohol and other drugs are having a massive negative impact on the social fabric of Aboriginal communities and contribute greatly to family and cultural breakdown. …”


[37] The report went on to note that extreme alcohol abuse has become normal in Aboriginal communities in the Northern Territory and the devastating effects of such abuse are rapidly increasing. Similar observations apply to the use of cannabis. As with alcohol, it seems that the use and abuse of cannabis has become a way of life for many Aboriginal people. The effect is to contribute significantly to the severe dysfunction found in many communities and within families in those communities. The negative effects of the consumption of cannabis not only impact upon the individuals immediately concerned, but upon the community as a whole.


[38] Research referred to in the report identified a number of individual “community harms” linked to the abuse of cannabis. The identified harms reflect the experience of the Court. Those harms include increased suicide and self-harm, friction and disputes stemming from users seeking money for drug use, young people making demands for money to purchase cannabis and threatening violence or self-harm if money is withheld and a negative impact on participation by users in work, school, sports, culture and other aspects of community life. Cannabis use has led to mental health problems and to the compounding of harms associated with excessive drinking, kava consumption and inhalant abuse.


[39] The price paid for cannabis (substantially greater in remote communities than in Darwin) means there is a reduced amount of money available to purchase food and other necessities. The report identified child neglect as a recurring issue in households where one or more of the occupants divert money for cannabis use or other addictions. It is readily apparent that substantial amounts of money are being taken from communities by way of payment for cannabis, resulting in money that would otherwise be spent for the benefit of members of the community being lost to the community. In the present case the appellant sought to introduce into the relatively small community of Ngukurr a substantial quantity of cannabis in June 2006 and was returning with 1.232 kilograms of cannabis in October 2006. Had he been successful the potential for an overwhelmingly negative impact upon the community in financial terms and, indeed, in all aspects of community life, was obvious.


[40] It is clear that users of cannabis, non-users of cannabis and the children of users of cannabis are all victims of the illegal trade. The abuse of cannabis continues to cause tremendous damage within Aboriginal communities. It leads to misery and dysfunction within those communities.


[41] Courts in the Northern Territory have for some time been expressing increasing concern as to the consequences of offending of this kind. Research conducted by the Northern Territory Department of Health and Community Services supports the view that cannabis is in widespread use in remote communities and the use is increasing. A snapshot of cannabis use undertaken in April 2002 by the Department revealed an increase in use and identified cannabis use in males as young as 10. Use of cannabis in the Arnhem region of the Northern Territory, where this matter arose, was described as increasing at an “alarming rate”.


[42] It is plain that the problem must be addressed by the wider community and by diverse strategies. It is not a problem which will be resolved within the criminal justice system alone. Insofar as the courts of the Northern Territory are concerned it is apparent that the sentences that have been imposed in the past have failed to provide an adequate deterrent and have failed to stem the flow of cannabis into such communities. Commercial drug offending within Aboriginal communities has remained far too prevalent. As we have said it is time for penalties to be increased in order to reflect the need for greater general deterrence. Those who engage in drug offending related to Aboriginal communities, particularly commercial drug activities, are on notice that in future longer terms of imprisonment will be imposed.


Angel J:
[43] As the Chief Justice and Riley J have said, there is no basis for criticising the individual sentences which are well within the sentencing discretion. Nor is there any error apparent in the experienced sentencing judge’s reasons for sentence.


[44] In my opinion the net sentence of 7 years imprisonment is not excessive having regard to all the circumstances of the case, let alone manifestly so. I am unable to discern any reason for regarding the sentencing discretion as having been improperly exercised.


[45] The appellant committed – in breach of a suspended sentence imposed with respect to his previous drug offending – two drug offences carrying maximum penalties of 14 years imprisonment and 25 years imprisonment respectively. Whilst on bail with respect of those offences he then committed a further drug offence carrying a maximum penalty of 14 years imprisonment. All those offences were committed in the course of what was found by the learned sentencing judge to be a “major drug distribution activity” to an Aboriginal community in the Roper River region.


[46] The other members of the Court consider “current sentencing standards” require this Court to interfere in the present case. I do not agree.


[47] We were referred to no comparable cases which in my opinion demonstrated some striking disparity in sentencing standards. In any event, like King CJ in Yardley v Betts (1979) 22 SASR 108 at 114, I “am firmly of the view that an offender has no cause for complaint, if he receives a sentence which is within the legal maximum and is fair and reasonable having regard to all the circumstances of the case, simply because courts have been in the habit hitherto of imposing somewhat lighter sentences”.


[48] As the High Court emphasised in Markarian v The Queen (2005) 79 ALJR 1048 at 1055 [27], there is no single correct sentence and sentencing judges “are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.


[49] Using the prescribed maximum penalties as a yard stick and basis for comparison of the present case with the worst possible case, Markarian, at 1056 [31], Green v The Queen (2006) 19 NTLR 1 at 38 [96], it can not be said that seven years imprisonment is unreasonable or plainly unjust or “out of all proportion to any view of the seriousness of the offence(s) which could reasonably be taken”: Cranssen v The King (1936) 55 CLR 509 at 520.


[50] I would dismiss this appeal by leave against sentence.
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