Bridle v Verity [2011] NTSC 107

 

PARTIES:                                         BRIDLE, Sarah Ann

 

                                                         v

 

                                                         VERITY, Brett Justin

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 11 0f 2011 (21015270)

 

DELIVERED:                                   22 December 2011

 

HEARING DATES:                           27 July, 10 October 2011

 

JUDGMENT OF:                              BLOKLAND J

 

APPEAL FROM:                               Mr Trigg SM

 

CATCHWORDS:

CRIMINAL LAW – MISUSE OF DRUGS – APPEAL - Appeal against findings of guilt and sentence.

 

Findings of Guilt - could the factual findings form the basis of criminal responsibility under the Criminal Code (NT) – regard to the definition of ‘offer to supply’ and ‘agreement to supply’ – offer to supply in the Northern Territory context means the acts comprising the offer must be proven to be intended – given His Honours findings of fact there is no question intention has been proven – must also be proven an accused intends or foresees as a possible consequence that the offeree believes the offer is true – s 31 of Criminal Code (NT) does not add a further element that the intention must be found to include an intention that the substance in reality was a prohibited drug – physical elements are complete at the time of the genuine offer – dismiss ground 5 of the appeal

 

Manifestly Excessive – Appellate court interferes with sentence only if it can be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence – the presumption is that there is no error – had the learned Magistrate taken into account all relevant aggravating and mitigating circumstances – the scenarios described by the learned Magistrate indicate an assessment of the gravity of the offending that is disproportionate to the appellant’s offending – It is concluded that error sufficient to attract appellate intervention has been established – Appeal against sentence allowed.

 

Re-sentencing and conviction – balancing the seriousness of the offending with the personal factors a conviction bond is the appropriate sentence

 

Misuse of Drugs Act (NT) s 5(1), s 5(2), 40(b),

Criminal Code (NT) s 1, s 31, s 103A,

Territory Parks and Conversation Act s 29,

Sentencing Act s 8(1),

 

Dendic & Mazzeo v R (1987) 34 A Crim R 40; R v Tait and Bartley (1979) 46 FLR 386; followed

 

Addison v R (1993) 70 A Crim R 213; Gokel v Gualandi (2011) 11 NTLR 71; Gunn v Howie [2006] NTSC 21; Hales v Adams [2005] NTSC 86; Peirce v The Queen (1994) 90 A Crim R 134; considered

 

Barnes v Westphal (2008) 22 NTLR 236; Director of Public Prosecutions Reference No 1 of 2002 (2002) 12 NTLR 176; Nason v O’Brien (unreported) NTSC 19 June 1991; Pregelj and Wurramura v Manison (1987) 31 A Crim R 383; R v Swan (2003) 140 A Crim R 243; Tran v Scammel (unreported) NTSC No 19 of 1993; referred to

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     Mr M Johnson

    Respondent:                                  Mr D Jones

 

 

 

 

Solicitors:

    Appellant:                                     Mr R Welfare

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       BLO 1116

Number of pages:                             23


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Bridle v Verity [2011] NTSC 107

JA 11 of 2011 (21015270)

 

 

                                                     BETWEEN:

 

                                                     Sarah Ann Bridle

                                                         Appellant

 

                                                     AND:

 

                                                     Brett Justin Verity

                                                         Respondent

 

CORAM:     BLOKLAND J

 

REASONS FOR JUDGMENT

 

(Delivered 22 December 2011)

 

Introduction

 

[1]       This is an appeal against findings of guilt and a sentence imposed by the Court of Summary Jurisdiction on 6 April 2011.  The grounds relevant to the finding of guilt were initially withdrawn on 27 July 2011 but by consent reinstated after consideration of the arguments on the appeal against sentence.

[2]       Neither the original arguments concerning the extent of criminal responsibility before the Court of Summary Jurisdiction, nor the initial arguments in this Court were made with reference to the Criminal Code (NT).

[3]       Although statutory provisions comparable to the Misuse of Drugs Act (NT) were analysed with reference to other jurisdictions, criminal responsibility for the relevant offences is governed by Part II Criminal Code (NT).  This will be discussed further below.

Proceedings before the Court of Summary Jurisdiction

[4]       On 10 February 2011 the appellant pleaded not guilty to three counts of unlawfully supply MDMA, (a dangerous drug as specified in schedule 2), to another person, an Under Cover Police Operative, contrary to section 5 (2)(a)(iv) Misuse of Drugs Act (NT).  The substance ultimately supplied was found not to be MDMA but rather contained components of caffeine.  The date of the first count was 19 March 2011, the second count, 16 April 2011, and the third count 6 May 2011.

[5]       The appellant was found guilty and convicted of all three counts and sentenced to imprisonment for an aggregate period of 5 months.  The sentence was suspended upon the appellant entering into a Home Detention Order for a period of 5 months.

[6]       The learned Magistrate found numerous facts proven beyond reasonable doubt.  The findings material to the resolution of this appeal are as follows:

·     The appellant and her then husband decided to purchase certain herbal capsules over the internet; they both understood these herbal capsules had the effects of ecstasy.

·     The substance ultimately supplied was not an unlawful drug but contained components of caffeine.

·     The appellant decided to sell the capsules, passing them off as ecstasy in order to make money.

·     The appellant did not believe she was committing an offence by her actions.

·     After the capsules were received (on or about December 2009) they were kept at the appellant and her husband’s home.

·     On or about 19 March 2010 the appellant tried to sell some of the capsules by sending out a text message indicating she needed to “get rid of” some ecstasy – the text was brought to the knowledge of the Northern Territory Police and an Under Cover Police Operative (UCPO) became engaged in investigating.

·     Through further texts being sent, a meeting between the appellant and the UCPO was arranged for 19 March 2010; the appellant intended the UCPO to believe she was offering to sell ecstasy to her; at Hungry Jacks the appellant sold 20 capsules to the UCPO for $200; the UCPO believed the appellant’s representations that she was selling ecstasy (Count 1).

·     On 15 April 2010 the UCPO contacted the appellant, wanting to buy more ecstasy; after an exchange of text messages the appellant met the UCPO at Winnellie shops on 16 April 2010.

·     The appellant’s husband attended at Winnellie Shops on 16 April 2010 and placed 20 of the capsules into an empty cigarette packet.

·     In the presence of the appellant, her husband exchanged the capsules with the UCPO for $200 (Count 2).

·     On 4 May 2010 the appellant sent a text to the UCPO offering to sell 100 of the same capsules, again representing them to be ecstasy.

·     After an exchange of texts a meeting was arranged for 6 May 2010 at the Winnellie shops.

·     On this third occasion, the appellant handed 100 capsules to the UCPO and received $1000 cash in exchange. (Count 3)

·     The appellant counted the $1000 and drove off with her husband and both were arrested by police.

[7]       There were significant questions about the extent of the involvement of the appellant’s husband in these dealings however the learned Magistrate found that both the appellant and her husband had been willing participants in the arrangement to offer the pills for supply.[1] 

[8]       The learned Magistrate concluded in his findings of fact that the appellant and her husband were both willing and active participants in the conduct that was the basis for count two.  His Honour made that finding being aware that her husband was dealt with in a separate hearing and apparently was acquitted.[2]  His Honour however rejected evidence given by the appellant at the hearing that her husband was involved in the commencement of the sales in March 2010.[3]

[9]       In the Court of Summary Jurisdiction hearing on 10 February 2011 three certificates of analysis, all dated 12 July 2010 were tendered.  Those certificates identified that all of the drugs sold, purportedly as “E’s”, comprised beige powder containing components of caffeine.    

[10]     The learned Magistrate published comprehensive reasons on 18 March 2011 and was of the view that there was no evidence to suggest that Ms Bridle actually supplied any illegal drug specified in schedule 2 of Misuse of Drugs Act.  His Honour went further to conclude that there was no evidence to suggest that Ms Bridle had ever intended to actually supply any illegal drug specified in schedule 2 of Misuse of Drugs Act, however the prosecution relied upon the extended meaning of the word ‘supply’ in the Misuse of Drugs Act.

[11]     In terms of the state of mind of the appellant, while His Honour made the finding the appellant did not ever intend to supply any illegal drug specified in Schedule 2 Misuse of Drugs Act,[4] His Honour found the appellant had represented to the UCPO she was selling ecstasy and had intended at all times to represent she was selling ecstasy.  On all occasions however, His Honour found the appellant did not intend to sell ecstasy, but intended to sell the substance that was the “XTZ herbal ecstasy”.  His Honour also found the UCPO believed she was negotiating to buy ecstasy (MDMA), a schedule 2 drug under the Misuse of Drugs Act.

Appeal Against Findings of Guilt

[12]     The learned Magistrate’s clear and extensive findings were not challenged on appeal.  The difficulty is that in the argument before His Honour, whether such factual findings could form the basis of criminal responsibility under the Criminal Code (NT) was not argued.  Cases of profound authority in common law jurisdictions were placed before the Court of Summary Jurisdiction.  His Honour accepted that analysis represented the law that governed the hearing.

[13]     Criminal responsibility under Part II Criminal Code is at times not without difficulty.  This is one of those times.  The relevant parts of the Misuse of Drugs Act do not define the mental element for supply; or relevantly here, an “offer” to supply.

[14]     Under s 5(1) Misuse of Drugs Act, “supply”, refers to the supply of a dangerous drug:

S 5(1)          A person who unlawfully supplies, or takes part in the supply of, a dangerous drug to another person, (... (a) ... (b)) is guilty of a crime.

[15]     Under the definitions in s 3(1) Misuse of Drugs Act, supply means:

(a)         give, distribute, sell, administer, transport or supply, whether to not for free, reward or consideration or in expectation of fee, reward or consideration;

(b)        offering to do an act referred to in paragraph (a); or

(c)        Doing or offering to do an act prepatory to, in furtherance of, or for the purpose of, an act referred to in paragraph (a).

[16]     The relevant parts of the Criminal Code governing criminal responsibility for offences against the Misuse of Drugs Act of particular relevance here are as follows:

S 1     act, in relation to an accused person, means the deed alleged to have been done by him. it is not limited to bodily movement and it includes the deed of another caused, induced or adopted by him or done pursuant to a common intention.

S 1     event means the result of an act or omission.

S 31

(1)     A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.

(2)     A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.

[17]     The law governing the mental ingredients of the offence of supply a dangerous drug, (albeit the extended form of that definition that includes offer to supply a dangerous drug), is governed exclusively by Part II Criminal Code.  The common law has no role, save for when the Code employs words and phrases that are conventionally used to express a general common law principle.  It is then permissible to interpret the statutory language in the light of decisions expounding the common law.[5] 

[18]     As has often been acknowledged, s 31 Criminal Code may produce results that differ from other jurisdictions in terms of attribution of criminal responsibility.  For example, on analysis, by applying s 31 to a charge of offensive behaviour, it was held that given the offending of a person, actually or potentially, was an integral element of the prescribed conduct, it was essential that intention to offend or foresight of the possibility of offending be proven.[6]  In relation to the previous statutory formulation of sexual intercourse without consent, s 31 produced a result that differed from all other Australian Codes, yet was similar to the common law.[7]

[19]     In Tran v Scammel,[8] it was held as essential to prove intention and foresight in respect of taking protected animals (turtles) contrary to s 29 Territory Parks and Conversation Act.  Although s 31 was applicable to the offence of intimidate a witness,[9] in Barnes v Westphal,[10] it was held s 103A Criminal Code requires no more than the accused be shown to have intended to menace, intimidate, threaten or cause the alleged detriment.  It was held that s 31 Criminal Code does not require proof that an accused intended to dissuade the person menaced, threatened or intimidated from giving evidence or truthful evidence in a judicial proceeding. 

[20]     Accepting as I must that s 31 Criminal Code excuses a person from criminal responsibility for an unintended and unforeseen act or event constituting the offence, the “act” or “event” comprising the “offer” to supply a dangerous drug must be defined.  The appellant argues it must be proven the appellant not only intended or foresaw offering MDMA but additionally it must be proven she intended or foresaw that MDMA and not an innocent substance was to be supplied.

[21]     In construing “offer”, the learned Magistrate drew on the New South Wales Court of Criminal Appeal decision of Dendic and Mazzeo v R.[11]  Although Dendic and Mazzeo v R cannot with respect answer the question of the mental element required to be proven under the Criminal Code (NT), it does inform the definition of the offence in terms of the meaning of “offer” in the context of “offer to supply a dangerous drug”.  In Dendic and Mazzeo v R Street CJ found for all practical purposes the offence of “offer” is complete when the relevant conversation offering to supply (there) heroin came to an end; it was not relevant that the substance actually to be supplied was (there) Glucodin.

[22]     Following Dendic and Mazzeo v R, in Addison v R[12] Gleeson CJ emphasized it is the agreement, not performance of the agreement that the mental element is applicable to.  Similarly, the Victorian Court of Criminal Appeal in Peirce v The Queen[13] has confirmed the reasoning of Dendic and Addison to the extent that conduct brought within the definition of “offer for sale” is an offer for sale made by someone who intends the offeree will take seriously.  Proof of the completion or performance of the offer is not an element of the offence.

[23]     On invitation to revisit the approach of the Courts with regard to the definition of “offer to supply” and “agreement to supply” in R v Swan,[14] the Court of Criminal Appeal (NSW) declined to do so.  Justice Howie noted an offer or an agreement to supply does not necessarily carry with it an intention on the part of the moving party to fulfil the offer made or the agreement entered into.[15]

[24]     Applying this now well accepted judicial reasoning to the physical elements of an offence of offer to supply drugs in the Northern Territory context means the acts comprising the offer, (here the texts, associated conversations and arrangements), must be proven to be intended.  Given His Honour’s findings of fact there is no question intention in that respect has been proven.  It must also be proven an accused intends or foresees as a possible consequence that the offeree believes the offer is true (in the language of s 31 ‘the event’).  Although s 31 Criminal Code (NT) requires a broad approach to be taken so that unintended and unforeseen acts and their consequences (events) defeat criminal responsibility; it does not apply to add a further element here that the intention must be found to include an intention that the substance in reality was the prohibited drug.  It is comparable to the construction found in Barnes v Westphal discussed above.  The physical elements (acts and their consequences) are complete at the time of the genuine offer.

[25]     I therefore conclude, (although I accept I had some hesitation at the time of hearing the appeal), that although the findings as to the definition of the elements and the mental state required were made without reference to Criminal Code (NT) principles, the findings of fact still result in a conclusion of guilt under the Criminal Code (NT) and Misuse of Drugs Act.  I would reject ground 5 of the further amended ground of appeal.

[26]     A further ground of appeal suggests error occurred as a result of an alleged failure of the learned Magistrate to consider s 40 Misuse of Drugs Act.  Relevantly s 40(b) provides:

In respect of a charge against a person of having committed an offence against this Act:

(b)     that person is liable to be found guilty as charged notwithstanding that the identity of the dangerous drug or precursor to which the charge relates is not proved to the satisfaction of the court that hears the charge if the court is satisfied that the thing to which the charge relates was at the material time a dangerous drug or precursor;

[27]     On behalf of the appellant it is argued this provision requires the Court to be satisfied that at the material times the substance was a prohibited drug under the Misuse of Drugs Act.  As the substance here is not a drug, it is argued the Court cannot be so satisfied and consequentially there can be no finding of guilt.

[28]     Essentially it is submitted the section is an indication that the Misuse of Drugs Act anticipates that offences may only be proven if the substance is a dangerous drug.

[29]     Section 40 is an evidentiary provision, utilized in specific circumstances and indicates the precise identity of the drug is not an element of the offence.  In respect of a charge of “possession” the section operates to establish the offence may be proven, provided the item possessed is a dangerous drug.[16]

[30]     Having accepted the argument that the offence of “offer to supply” is complete upon a genuine offer being made with the intention that the offeree believes it is genuine, the evidentiary aid in s 40(b) Misuse of Drugs Act is irrelevant to the charge in these circumstances.

[31]     The appeal against the finding of guilt is dismissed.

Manifestly Excessive

[32]     The maximum penalty available which applies in respect of all three offences is imprisonment for 5 years and a fine of $10,000.

[33]     An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it can be shown that a sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.[17]  The presumption is that there is no error.

[34]     At the heart of the respondents’ submissions was that the learned Magistrate had taken into account all relevant aggravating and mitigating circumstances in relation to this matter.  In summary the respondent reminded the Court that the learned Magistrate made mention of and subsequently took account of the following: the lost opportunity of a discount that applies to a plea of guilty; that the type of drug being sold by the appellant was less serious than other drugs purported to be sold in similar decisions involving “rip offs”; the low amount of money obtained by the appellant; that the appellant was driven by greed rather than need; the appellant’s age and prior good character, (including the reduction of the account that could be taken of her character as a result of the differing and in part false versions of evidence provided by the appellant); and her future aspirations to join the Navy.  In relation to those consequences His Honour considered they were an unfortunate result of being involved in offending.  His Honour concluded it was not in the best interests of either the appellant or the community that she serve actual gaol time.  His Honour was of the view that a bond or community work would not have been sufficient in relation to the seriousness of this offending.  It was also noted the appellant had found employment.

[35]     The first issue raised by the appellant in relation to the sentence imposed by the learned Magistrate was that while the supply of prohibited drugs in the Territory is a common offence, circumstances such as this, involving a substance that is not a drug, are not common.  It was put that the harm which often flows from offences where prohibited drugs are actually supplied is not the sort which exists in relation to the appellant’s offending.  There is some force in this argument.  It must however be balanced against other relevant factors.  It was submitted the only applicable harm identified by His Honour was the potential harm to the appellant.  His Honour identified that there may be circumstances where an aggrieved purchaser would harm the appellant.

[36]     The appellant further argued that the appellant’s husband’s involvement should have been taken into account in a more significant way.  This was based on the learned Magistrate’s conclusion that there was joint involvement in some of the dealings.  In my view that complaint cannot be made out in the light of His Honour’s findings.  His Honour correctly with respect focussed on the appellant.

[37]     In relation to the question of loss, the appellant submitted that the only loss which flowed was that of the $400 from the first two offences that occurred in March and April as the $1000 given to the appellant in May was retrieved by authorities.

[38]     It was also submitted that the learned Magistrate failed to give sufficient weight to the appellant’s prior good character and her youth, given that she was only 18 at the time of offending and 19 when she appeared in the Court of Summary Jurisdiction.  

[39]     While the appellant accepted that no discount was available by virtue of her pleas of not guilty it was argued that the pleas of not guilty should be considered in light of the offences and the type of defence which was put to the court on the appellant’s behalf.  That is, the pleas of not guilty were entered on the basis that the appellant did not actually supply MDMA as implied by the charges and had no intention of doing so.  In relation to the pleas of not guilty it was further put by the appellant that those pleas in themselves, particularly in light of the moral culpability of the appellant, cannot be taken to automatically imply that the appellant was not remorseful for her actions.

[40]     Other submissions put by the appellant related to her personal circumstances in the lead up to and at the time of the offending.  Several matters in mitigation of sentence were put by the appellant to the learned Magistrate.  Those matters included the relatively young age of the appellant at the time of entering into her marriage; that the appellant became pregnant at a relatively young age and at a very early stage in the marriage; that the appellant experienced illness during the pregnancy; that the appellant was informed during the course of that pregnancy that the foetus was deformed; and that the appellant had to terminate that pregnancy.  Further, the appellant was not in employment and was reliant on her husband’s salary and any assistance given by her parents from time to time.  There were also a number of marital problems which had arisen in respect of money issues, questions of fidelity and disagreements surrounding the termination of the pregnancy.  It was also said that the appellant was suffering from continuing depression.

[41]     The appellant also submitted that the learned Magistrate erred in over emphasising both general and specific deterrence in formulating the sentence. Those submissions were made particularly in relation to the objective seriousness of the offending and the moral culpability of the appellant.

[42]     Ultimately the appellant argued that the sentence imposed by the learned Magistrate was disproportionate to the offending behaviour.

[43]     His Honour was with respect correct to regard any misconduct involving entry into the drug scene, including holding oneself out as being ready to deal with illegal drugs as serious offending.  His Honour correctly identified the sense of community disquiet that may be aroused by this type of offending.

[44]     In my respectful view however, the scenarios described by the learned Magistrate to emphasize the seriousness of the offending are indicative of an assessment of the gravity of the offending that is disproportionate to the appellant’s offending.  His Honour described it as “not an improbable or impossible scenario” that had the appellant sold to an actual drug user.  His Honour said “...that the last thing you need is for people like Ms Bridle to end up floating in a river somewhere because somebody has got sufficiently pissed off with a drug deal gone wrong that they’ve killed someone”.  His Honour also spoke of the trade in ecstasy being “sometimes linked to certain notorious illegal motor cycle gangs, if they believe that somebody was trying to cut into their market they are likely to come down on that with considerable force in threats and are not adverse to using hammers and other weapons on people with quite a devastating effect.  It is a very dangerous game to get involved with”.

[45]     Many of these sentiments are doubtless true in a general sense in serious cases, however the magnitude of the various scenarios described are in my respectful view, disproportionate to both this particular offending and the circumstances of this particular offender.  There was no question of any link between the appellant’s offending and high levels of widespread organised criminal activity.

[46]     His Honour indicated there may be some, but effectively little mitigation shown in cases where an illegal drug is not actually supplied, nor intended to be supplied.  In Gokel v Gualandi[18] the Court of Appeal (NT) indicated that in circumstances where mistaken belief did not exculpate an accused by virtue of mistake as to the identity of a drug, this factor may nevertheless be relevant to the appropriate sentence.[19]  In my view, by way of analogy, particularly given that this was not a large scale operation, the moral culpability of the appellant should have been treated as less than a case of actual supply of MDMA.

[47]     Given other matters of mitigation, particularly the young age of the appellant and the fact of her lack of previous convictions and that this episode of offending was nowhere near the scale as that in cases such as Dendic (cited above), this was an appropriate case to mitigate the penalty from a penalty that may otherwise be imposed for offering to supply MDMA.

[48]     I conclude error sufficient to attract appellate intervention has been established and I proceed to re-sentence the appellant.

Re-Sentencing and the Question of Whether to Impose a Conviction

[49]     At the outset the appellant conceded that the learned Magistrate faced the situation of dealing with conflicting evidence between the initial record of interview which the appellant participated in and the evidence the appellant gave before the Court of Summary Jurisdiction.  It was also conceded that given the two conflicting accounts of the appellant the court was entitled to conclude that such disparities affected the assessment of the appellant’s prior good character.  However, it was further submitted that the personal circumstances of the appellant should have still been taken into account as they were not disputed by the prosecutor.

[50]     As I am involved in a re-sentencing exercise, I consider these matters afresh but based on his Honour’s findings. 

[51]     The appellant does not receive a discount for a plea.  The matters his Honour found were untruthful in her evidence principally concerned evidence about the involvement of her then husband.  A number of other factual matters were non-contentious given the principal dispute was about whether as a matter of law the appellant had committed offences.  Still, the appellant cannot receive the plea discount. 

[52]     At 18 years old with no previous convictions, aside the conduct of the hearing and the offending the appellant had positive antecedents.  A number of health and marriage problems, some of which have been outlined above are of relevance; particularly given there had been a resolution of some of those issues the prospects of rehabilitation are positive.  The appellant originally came from a supportive family.  References before the Court acknowledged her regret and remorse over the mistakes she had made.  Some of that is expressed as being over the choice of her partner, however in an overall sense a review of the material indicates remorse for the offending.  She was not known as someone who would be involved in drugs.  She had strong family attachments to the military and aspired to join the Navy herself.

[53]     The offending is significant, however I do not regard it as objectively as serious as supplying an actual prohibited drug.  Although counts 1 and 2 did not involve large sums of money, count 3, involving $1,000.00 was of a more serious character.  It also showed a preparedness to continue the offending at an escalated level.  This is one reason that I will not accede to the appellant’s counsel’s request to not impose a conviction.

[54]     Counsel for the appellant argued the appellant met the criteria provided under section 8(1) of the Sentencing Act which would justify not recording a conviction in this matter.  It was argued that when multiple criteria as opposed to just one are met under s 8(1), there are strong arguments in favour of not recording a conviction.[20]

[55]     Section 8(1) Sentencing Act (NT) provides:

(1)     In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:

(a)     the character, antecedents, age, health or mental condition of the offender; and

(b)     the extent, if any, to which the offence is of a trivial nature; and

(c)     the extent, if any, to which the offence was committed under extenuating circumstances.

[56]     At the time of sentencing before the learned Magistrate and before this Court it was explained that the appellant had hopes to join the Royal Australian Navy and any recorded conviction may greatly diminish her chances of being accepted into the military.  This court was referred to the case of Gunn v Howie[21] where Olsson AJ said at [30] that:

…It is to be borne in mind that, because the recording of the conviction is a formal act marking disapproval of the defendants wrongdoing, it is to be regarded as a component of the sentence and to be accorded weight in considering whether or not the sentence is proportionate to the relevant offence…It is a relevant consideration to record a conviction against a young person, particularly a young first offender, may stigmatise that person to the rest of his life or blight his possible future career.

[57]     Ultimately it was the submission of the appellant that given all of the circumstances of the offending and her personal circumstances not recording a conviction was appropriate.

[58]     The respondent referred to Hales v Adams[22] where Southwood J relied on the useful summary of the considerations of whether to record a conviction drawn from RG Fox and A Freiberg, Sentencing State and Federal Law in Victoria.[23]  The passage referred to states:

The discretion may be exercised where the defendant has nothing or little by way of previous record, or where the offending related to ill health, or where it would, in itself be a significant additional penalty for a first offender. On the other hand the recording of a conviction may be called for where the offender is of a mature age and the requirements of general and special deterrence are being given weight, especially in relation to breaches of regulatory or social legislation.

[59]     Although the appellant had prior good character, was young and at some stage prior to the offending experienced significant health difficulties, it is unclear to what extent these were present and operative at the time of the commencement of the offending and throughout its course.  For such a young person in an unhappy marriage and given the fraught circumstances of her pregnancy prior to these events, it is reasonable to conclude she experienced a degree of distress.  I am unable to conclude however that they provided extenuating circumstances in the sense of the section; further, the offences were not trivial, particularly the third offence.

 

[60]     It is primarily her age and previous good character that are relevant to the    s 8 criteria, coupled with the fact that she wants to join the Navy and convictions will most likely mean she will be excluded.  Although exclusion of a career path is a significant penalty for a young person, the persistence and escalation of the offending leads me to the conclusion that a disposition of no conviction would not be justified.  In the circumstances however, I would not go beyond a penalty of a conviction and a bond which will have serious consequences for the appellant.

 

[61]     By way of re-sentencing, balancing the seriousness of the offending with the personal factors that have been discussed above, in my view a conviction bond is the appropriate sentence.

 

[62]     The orders will be:

·     the appeal against the findings of guilt is dismissed;

·     the appeal against sentence is allowed and the sentence is quashed;

·     on counts 1, 2 and 3 the appellant is convicted and placed on a good behaviour bond herself in the sum of $1,000.00 own recognisance to be of good behaviour for 12 months.  If she breaches the bond she may be re-sentenced or ordered to forfeit the $1,000.00.

____________________



[1]         Reasons 117.

[2]         Reasons 118.

[3]         Reasons 136.

[4]         [2011] NTMC 6 at [14].

[5]         See discussion in Pregelj and Wurramura v Manison (1987) 31 A Crim R 383 at 393; Director of Public Prosecutions Reference No 1 of 2002 (2002) 12 NTLR 176 at [52]. 

[6]         Pregelj and Wurramura v Manison (above) at 397; directly followed by Gray AJ in Nason v O’Brien (unreported) NTSC, 19 June 1991.

[7]         DPP Reference No 1 of 2002, Bailey J at [50].

[8]         Unreported, No 19 of 1993, 10 January 1994.

[9]         S 103A Criminal Code.

[10]        (2008) 22 NTLR 236.

[11]        (1987) 34 A Crim R 40. The New South Wales legislation considered in Dendic and Mazzeo is substantially the same as the Misuse of Drugs Act (NT).

[12]        (1993) 70 A Crim R 213 at 216-217.

[13]        (1994) 90 A Crim R 134.

[14]        (2003) 140 A Crim R 243.

[15]        R v Swan at 247.

[16]        Gokel v Gualandi (2001) 11 NTLR 71 at [10] – [11].

[17]        R v Tait and Bartley (1979) 46 FLR 386 at 388.

[18]        (2011) NTCA 6.

[19]        Gokel v Gualandi at [18].

[20]        Cobiac v Liddy per Windeyer J at 276

[21]        [2006] NTSC 21.

[22]        [2005] NTSC 86.

[23]        2nd Edition at 190-193.