McDonogh v The Queen  NTCCA 12
PARTIES: MARLEY McDONOGH
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO: CA 4 of 2011 (21007532)
DELIVERED: 2 NOVEMBER 2011
HEARING DATES: 2 NOVEMBER 2011
JUDGMENT OF: RILEY CJ, MILDREN & MARTIN (BR) JJ
APPEAL FROM: SOUTHWOOD J
APPEAL AGAINST SENTENCE – that the learned sentencing Judge erred in applying the principle of parity – appeal dismissed.
Misuse of Drugs Act
R v MacGowan (1988) 42 SASR 580, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; Knight v The Queen  NTCCA 4, followed.
Appellant: I Rowbottam (Pro bono)
Respondent: W J Karczewski QC
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Mar1102
Number of pages: 18
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
McDonogh v The Queen  NTCCA 12
CORAM: RILEY CJ, MILDREN & MARTIN (BR) JJ
REASONS FOR JUDGMENT
(Delivered 2 November 2011)
 I agree that the application should be dismissed for the reasons provided by Justice Martin.
 I also agree.
Martin (BR) J:
 This is an appeal against a sentence of four years and six months imprisonment, suspended after two years with conditions, imposed following pleas of guilty to three offences against the Misuse of Drugs Act. Those offences were:
(i) Count 1 – Unlawfully supplying a dangerous drug, namely MDMA, in the circumstance of aggravation that the amount of the dangerous drug was a commercial quantity, namely an unknown quantity in excess of a commercial quantity (ss 5(1)and (2)(b)(iii) of the Misuse of Drugs Act (“the Act”)).
(ii) Count 2 – Unlawfully supplying a dangerous drug, namely LSD, in the circumstance of aggravation that the amount of the dangerous drug was a commercial quantity, namely an unknown quantity in excess of a commercial quantity (ss 5(1)and (2)(b)(iA) of the Act).
(iii) Count 4 – Possessing property, namely $2,300, obtained directly or indirectly from the commission of an offence against s 5 of the Misuse of Drugs Act, knowing the property to have been so obtained (s 6(1)(a) of the Act).
 The appellant’s offending occurred in the course of an ongoing criminal enterprise which involved co-offenders importing the drugs into the Northern Territory and supplying them to the appellant who then supplied the drugs to a network of dealers for distribution within the Territory. The co-offenders, Tristan Ferguson and Trudy Ferguson (“the Fergusons”) were sentenced by the same Judge approximately four weeks before the appellant was sentenced following their pleas of guilty to eight offences against the Act. Both were sentenced to an aggregate sentence of four years and nine months imprisonment, suspended on conditions after service of two years and six months imprisonment.
 The offences to which the Fergusons pleaded guilty were as follows:
(i) Count 1 – Unlawfully supplying a dangerous drug, namely MDMA, to the appellant in the circumstance of aggravation that the amount of the dangerous drug was a commercial quantity, namely 3975 grams (ss 5(1) and (2)(b)(iii) of the Act.)
(ii) Count 2 – Unlawfully supplying a dangerous drug, namely LSD, to the appellant in the circumstance of aggravation that the amount of the drug was a commercial quantity, namely 0.5 grams (ss 5(1) and (2)(b)(iA) of the Act).
(iii) Count 3 – Unlawfully possessing a dangerous drug, namely LSD, in the circumstance of aggravation that the amount of the drug was a commercial quantity, namely 0.204 grams (ss 9(1) and (2)(a) of the Act).
(iv) Count 4 – Unlawfully possessing a dangerous drug, namely cocaine, in the circumstance of aggravation that the amount of the drug was a trafficable quantity, namely 13.862 grams (ss 9(1) and (2)(b)(ii) of the Act).
(v) Count 5 – Unlawfully possessing a dangerous drug, namely MDMA, in the circumstance of aggravation that the amount of the drug was a commercial quantity, namely 260.671 grams (ss 9(1) and (2)(d) of the Act).
(vi) Count 6 – Unlawfully possessing a dangerous drug, namely MDA, in the circumstance of aggravation that the amount of the drug was a commercial quantity, namely 1,700.4 grams (ss 9(1) and (2)(d) of the Act).
(vii) Count 7 – Unlawfully possessing a dangerous drug, namely, cannabis plant material (ss 9(1) and (2)(f)(ii) of the Act).
(viii) Count 8 – Possessing property, namely, $3,250 and objects obtained directly or indirectly from the commission of an offence against s 5 of the Act, knowing the property to have been so obtained (s 6(1)(a) of the Act).
 The total value of the tainted property which was the subject of Count 8 was between $21,650 and $30,200.
 The appellant’s aggregate sentence was three months less than the sentence imposed upon the Fergusons, and the appellant’s sentence was suspended after two years whereas the sentence imposed upon the Fergusons was suspended after two years and six months. The sole ground of appeal is that the learned sentencing Judge erred in failing to apply properly the principle of parity as it operated between the appellant and the Fergusons.
 The Fergusons have lived in the Northern Territory since mid-2008. The sentencing Judge found that prior to 20 November 2009 the Fergusons commenced a criminal enterprise involving the importation and distribution of commercial quantities of MDMA and, to a “much lesser extent”, LSD. The drugs were obtained from NSW on credit.
 The sentencing Judge described the criminal enterprise as “primarily” revolving around the supply of MDMA and LSD to the appellant who “engaged a network of drug dealers to distribute the dangerous drugs within the Darwin area”. His Honour described the criminal conduct of the appellant in the following terms:
“The offender supplied the drugs obtained from his suppliers to his lower level street dealers after adding a profit margin to the purchase price. The offender supplied the drugs to his dealers on credit and received cash payment from them upon the sale of the drugs. The offender took a profit margin from the sales and returned the outstanding cash to his suppliers in order to obtain further drugs.”
 In respect of Counts 1 and 2 for both the appellant and the Fergusons, between 20 November 2009 and 3 March 2010 the Fergusons supplied the appellant with a total of 7,950 MDMA tablets for $22 each on credit. Thirteen separate occasions of supply were involved. The total cost to the appellant of the tablets was $162,900.
 The appellant supplied the MDMA tablets to his dealers who sold the tablets and paid cash to the appellant after the sales. The appellant then paid the Fergusons and, at the time of his arrest, had paid them a total of $155,944. The sentencing Judge found that the majority of the proceeds received by the Fergusons was forwarded to their source of drugs in NSW to repay their debts for drugs supplied to them.
 Count 2 related to the supply of 100 LSD tablets by the Fergusons to the appellant on credit for $10 each. The appellant supplied those tablets to his regular customers.
 The third offence to which the appellant pleaded guilty was based upon the amount of $2,300 cash found in the appellant’s motor vehicle when police executed a search warrant at his premises on 2 March 2010. The vehicle had been used to obtain and distribute the MDMA. The sentencing Judge ordered that both the cash and the motor vehicle be forfeited to the Crown.
 In addition to the two counts in common with the appellant, the Fergusons pleaded guilty to five additional offences of possessing a dangerous drug. The offences were charged in counts 3 to 7 of the Ferguson indictment and the facts were summarised by the sentencing Judge as follows:
“The facts of counts 3 to 7 on the indictment are as follows.
On Monday 11 January 2010 the first and second offenders returned to Darwin on a commercial aircraft from Sydney with a commercial quantity of LSD tabs in their possession. 100 of the LSD tabs were supplied to McDonogh on about 16 January 2010.
At some time in January 2010 the first and second offenders conspired to organise the purchase and supply of a large commercial quantity of MDA and cocaine from Sydney to the Northern Territory.
On Saturday 30 January 2010 the second offender took possession of $19,000 previously collected from the sale of drugs and personally took the money to Sydney on a Qantas flight. Once in Sydney she provided the money to her drug supplier.
Upon her return to Darwin on Saturday 6 February 2010, the first and second offenders made arrangements for their recently purchased maroon Volvo 850 sedan to be transported from Sydney to Darwin through the Adelaide Car Express Company. The vehicle was purchased specifically to be used to bring dangerous drugs into the Northern Territory. On Saturday 13 February 2010 the second offender once again travelled to Sydney on a Qantas flight. There she assisted their Sydney drug supplier in concealing the MDA tablets and $8000 worth of cocaine in a 10-litre Repco diesel engine oil drum. The oil drum was then placed into the boot of the maroon Volvo sedan. On Monday 15 February 2010 the second offender dropped the vehicle off at the Sydney airport depot of Adelaide Car Express and she returned to Darwin on 16 February 2010.
During the morning of 2 March 2010 the second offender was notified by Adelaide Car Express that the maroon Volvo sedan had arrived in Darwin. At 9.56 am the first offender attended Shell Truck City on the corner of Berrimah Road and the Stuart Highway and took possession of the Volvo sedan, driving it to their neighbour’s residence at 120 Lagoon Road, Berrimah. The first offender unloaded the oil drum from the motor vehicle and returned it to their address at Knuckey Lagoon where he proceeded to remove the drugs.
At 4.05pm on 2 March 2010 a search warrant was executed at 90 Lagoon Road, Knuckey Lagoon. As a result of the search the following drug items were located and seized: 70 clipseal bags containing 7003 MDA pills weighing 1700.4 grams; 6 clipseal bags containing 511 MDMA capsules; 1 clipseal bag containing MDMA solid material weighing a total of 260.67 grams; 2 clipseal bags containing 6 LSD tabs weighing 0.204 grams; 1 clipseal bag containing 2 blocks of cocaine weighing 13.862 grams; and 2 clipseal bags containing cannabis plant material weighing 18.386 grams.”
 The Fergusons also pleaded guilty to an offence involving tainted property. As mentioned, the appellant’s tainted property was the amount of $2,300 in cash found in his motor vehicle. The tainted property that was the subject of count 8 on the Ferguson indictment involved $3,250 cash, a LG 80cm flat screen TV, a Panasonic surround sound system and speakers, a Nintendo Wii console, games and accessories, a 40 hp Yamaha outboard motor, a Volvo sedan and a Mitsubishi Lancer sedan. The total value of the cash and goods was between $21,650 and $30,200. The Judge ordered that the cash and all goods be forfeited to the Crown.
 As to personal circumstances, the appellant was aged 23 at the time of the offending. The sentencing Judge summarised matters personal to the appellant in the following terms:
“The offender completed year 12 of High School at Casuarina Secondary College and he also obtained Certificates I and II in Tourism. He obtained a tertiary entrance rank of 72. After completing high school he enrolled in a communications degree at Charles Darwin University. He has completed the first year of this degree.
Since leaving home at the age of 17 years the offender has worked as an aged carer, a gardener and a personal carer. His most recent employment was with Regina’s Construction Cleaning Services. The company is prepared to provide the offender with employment in the future.
The offender had an extremely deprived and dysfunctional childhood with significant traumatic events including violence between his father and other males, domestic violence between his father and mother and severe beatings that he and his siblings received from their father. On one occasion the offender’s father drove a motor vehicle into him and he sustained injuries.
The offender suffers from a number of psychiatric conditions. A report from a psychologist was tendered in evidence. In the report Ms Keightley states that it appears that the offender meets the diagnostic criteria for Major Depressive Disorder and Post Traumatic Stress Disorder. In the past the offender has made a number of attempts at committing suicide.
The offender has been misusing illicit substances for a number of years prior to being arrested. The offender started using illicit substances at the age of 14 years. He told the senior probation and parole officer who prepared the presentence report that there are not a lot of drugs he has not tried. His drug of choice is ecstasy and before he was arrested he was consuming in excess of 20 ecstasy tablets a week. He was also using cocaine, amphetamines and illegally acquired prescription medication. The report from Ms Keightly stated that the offender was abusing MDA, benzodiazepines, anti-depressants and cocaine.
The offender has a criminal record. He has no relevant prior convictions. In the past he has been convicted of driving with medium range blood alcohol content, unlawful damage to property and of being armed with an offensive weapon.”
 As to the Fergusons, the sentencing Judge described matters personal to them as follows:
“The first offender was born at Manly in New South Wales on 10 June 1977. He is 33 years of age. He attended Balgowlah and Manly West Primary Schools and went on to complete his high school certificate at Balgowlah High School. Immediately upon leaving school he began work as an apprentice motor mechanic. He completed his apprenticeship in four years. While undertaking his apprenticeship he studied at the Brookvale Technical College.
Instead of going into the motor trade, he began his own gardening business which he operated for two years. However, he is a very keen fisherman. His passion for fishing led him to obtain employment with a company by the name of Pure Fishing. He began his employment at the very bottom of the pecking order as a roustabout in the warehouse. From there he worked his way up to become the New South Wales sales manager for the company, a position he held for five years. He only ceased that employment to follow his then girlfriend, the second offender, to the United Kingdom where she had gone to work. He spent 10 months there. The couple then returned to Australia to get married.
After his marriage the first offender obtained employment as a sales representative for approximately two years with Juro Fishing Company in Melbourne. He and the second offender then returned to New South Wales where the first offender gained employment with a company that operated a business by the name of Fire Stopping – Passive Fire Protection. He worked in that business from April 2005 to November 2008.
The first offender left his employment with Fire Stopping – Passive Fire Protection to embark on a fishing/working holiday around Australia. He travelled with a boat and trailer in tow to various places up the east coast of Australia. The first and second offenders spent nine weeks in Mission Beach where they worked and saved for the next leg of the journey. Their trip then took them to Darwin via Mt Isa. Darwin was chosen because of the barramundi fishing. Initially things looked good. When they arrived in Darwin they resided in a caravan park and the first offender got some work as a salesman at Got One, a fishing store. The work did not last and for about eight to ten months prior to being arrested, the first offender was unemployed.
The first offender has a history of poly-substance misuse. The first offender reported to the psychologist who undertook his assessment for the CREDIT NT Program that he considered his substance misuse was a massive problem which had ruined his life. He said that he did not notice it at first but his use of various substances just built up. Over the years the first offender has used cannabis, alcohol, MDMA, cocaine and LSD. The first offender was 15 years old when he first smoked cannabis on an experimental basis, having been introduced to it by older friends. By the time he was 17 years old, he was smoking cannabis on a daily basis. His use of cannabis has varied over time depending upon his work and personal circumstances. His only periods of abstinence have been when he was not able to obtain cannabis and this was usually only for a period of a couple of days to a couple of weeks. During the 12 months prior to his offending, the first offender’s lifestyle revolved around the use of cannabis. He was smoking around 30 cones of cannabis per day.
The first offender first consumed alcohol at high risk levels at the age of 17 years when he would binge drink on weekends. Over time his alcohol intake gradually increased and by 22 years of age he was drinking on a daily basis. His level of alcohol consumption varies depending on his work situation and personal circumstances. Over the 12 months prior to his arrest, he was consuming up to 30 full strength beers a day. If he was feeling particularly anxious, he would consume alcohol until he fell asleep.
The first offender commenced using MDMA as a recreational drug on weekend s when he was around 17 years of age. Over time his use of MDMA escalated to two or three times per week, taking up to two capsules at a time. Over the 12 months prior to his arrest, he used MDMA at least five days per week and he would consume up to 10 capsules at a time. The first offender would also use cocaine and LSD if those drugs were available.
Prior to his arrest, the first offender had not obtained any drug or alcohol treatment or rehabilitation.
The first offender also has a history of suffering from anxiety and, on occasion, severe depression. About 10 years prior to his offending he was diagnosed with anxiety problems by a general practitioner specialising in anxiety and depression management. The first offender was provided with education on anxiety management techniques which he utilised at the time. He advised that he has not had any further treatment. The first offender stated to the court clinician that his use of substances was a form of self-medication.
The offender has no relevant prior convictions. Prior to committing these offences the first offender had only been convicted of a number of driving offences.
Prior to committing the crimes for which he is to be sentenced today, the first offender had a positively good reputation. A number of character references were tendered in evidence. The substance of the comments made by the offender’s referees is as follows. During his employment the first offender was always punctual, respectful and exhibited no signs that he was involved in any way with the use or supply of drugs. He was always first to put his hand up to help friends. He has always exhibited good behaviour and has shown a good sense of community. He has helped others in times of need and catastrophe. He has a fantastic work ethic. His dedication to work and his fellow employees is beyond reproach. He tackles any task that is asked of him.
The first offender’s referees stated that they were shocked when they were informed of the crimes that had been committed by the first offender. In their opinion the offending is completely out of character.
The second offender was born on 21 June 1978. She is 32 years of age. She completed Year 12 of high school. After high school she completed further studies which qualified her to work as a paralegal.
The second offender also has a good employment history. She has been employed as a legal secretary for much of her working life. During the second half of 2009 she was employed as a relief receptionist at Danila Dilba Health Services in Darwin. She has also been employed by Regina’s Cleaning Service and Drake Management as a temporary placement employee. Just prior to committing these offences she secured a job with Daiwa Fishing in Sydney who she had previously been employed with. The employment required her to travel to Sydney once a month for approximately five days with the balance of her work being done in Darwin.
The second offender also has a history of poly-substance misuse. During the 12 months prior to her arrest she was using 4 grams of cocaine a week. She first consumed alcohol at the age of 14 years. Prior to her arrest she would consume a four-litre cask of wine, a bottle of red wine, and a bottle of vodka on a weekly basis. She would drink alcohol by herself. The second offender started using cannabis at the age of 14 years. She gave up the use of cannabis after a period of time. She was also an MDMA user, but she gave up MDMA after she started using cocaine.
The second offender was also of positively good reputation prior to committing the crimes for which she is to be sentenced by this Court. Her referees made comments to the following effect. Her work ethic is first rate. She has been a valuable employee. She is an honest person who is a very hard worker. The second offender was worth her weight in gold. She was extremely efficient. She was punctual and very hard working; a real team player.
Her referees also stated that her offending is out of character and their first response to being informed of the offences committed by the second offender was one of disbelief. She is a first offender.”
Approach by sentencing Judge
 In respect of the appellant, during detailed sentencing remarks delivered on 8 March 2011, the sentencing Judge did not refer to the sentences imposed upon the Fergusons on 3 February 2011, but the issue of their offending in comparison with the appellant’s criminal conduct had been the subject of submissions and his Honour compared the respective offending:
“The offender was not the principal offender so far as the supply of these drugs in the Northern Territory is concerned. However he was a high level intermediary. His role in the distribution of drugs was at a similar level to that of his suppliers, the Fergusons. He was an important sub-contractor.
 Although his Honour did not mention the question of parity or disparity in sentences, I am satisfied that his Honour did not overlook this principle.
 The written submissions of the appellant urge that in view of the “very significant differences” between the charges faced by the appellant and those relating to the Fergusons, and bearing in mind the minimal difference of three months in head sentences and six months in the periods to be served before suspension, it is apparent that the sentencing Judge “failed to properly apply the principle of parity (or, here, disparity)”.
 The respondent contended that although the Fergusons were convicted of five more offences than the appellant, the difference in number is not as significant as it might be in other circumstances because the Fergusons and the appellant were jointly involved in an ongoing criminal enterprise. The Crown also submitted that the differing value of the tainted property is “not a factor deserving of great weight” as it demonstrates no more than that the Fergusons and the appellant “chose to spend their ill-gotten gains differently.”
 The general principle to be applied by the sentencing Judge is not in doubt. In respect of offenders sentenced by the same Judge or Magistrate, the principle was succinctly and helpfully explained by King CJ, with whose judgment Mohr and von Doussa JJ agreed, in R v MacGowan:
“Where two or more persons are sentenced by the same Judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing Judge.”
 As always when a sentencing discretion is involved, there is no mathematical formula by which an appropriate disparity between sentences on co-offenders is to be determined. It is a matter of comparing the totality of the circumstances and inevitably there is a range of disparity within which it cannot be said that the sentencing discretion miscarried.
 The sentencing Judge was well aware of the respective criminality and personal matters and his Honour had regard to the relevant principle. There is no apparent error in his Honour’s approach. In these circumstances the appellant faces the task of demonstrating that the exercise of the sentencing discretion must have miscarried because the lack of sufficient disparity between the sentences is such as to “give rise to a justifiable sense of grievance” or to “give the appearance that justice has not been done”. In Postiglione v R, Gummow J summarised the principle in the following terms:
“The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.”
 The sentence imposed upon the appellant was a moderate sentence. His criminal conduct was a serious example of sustained offending against the drug laws at the level of a principal in the distribution of drugs within the Territory. While the appellant was not a principal importer of drugs into the Territory, I agree with the observations of the sentencing Judge that the appellant was a “high level intermediary” and his role in the distribution of drugs was at a “similar level” to that of the Fergusons.
 The appellant has no basis for a complaint about the length of his sentence, or the period to be served, other than by way of comparison with the sentence imposed upon the Fergusons. Absent that comparison, the appellant received a fair and just sentence. The question to be determined is whether, notwithstanding the imposition of a fair and just sentence, there is such a manifestly inadequate disparity as to engender a justified sense of grievance and give the appearance that justice has not been done. In my opinion there is not such an unjustified and manifestly inadequate disparity.
 As the Crown has pointed out, although the Fergusons pleaded guilty to additional offences, those offences were also committed in the course of the ongoing criminal enterprise with the appellant. Significantly, because of the relationship between the appellant and the Fergusons within the criminal enterprise, and in view of their respective roles, there was not a significant difference in terms of moral culpability.
 As to matters personal, the appellant is younger than the Fergusons, but he had previously offended and there was no evidence of positive good character. By way of contrast, neither of the Fergusons had previously offended and the sentencing Judge accepted that they possessed positive good reputations prior to their offending and that their offending was out of character. All offenders had a history of drug abuse. The appellant was denied the opportunity of participating in the CREDIT NT rehabilitation course because he was refused bail, but he successfully completed the alcohol and other drugs prison IN-REACH program at the Darwin Correctional Centre. To the advantage of the Fergusons, they were able to undertake the CREDIT NT rehabilitation program and both successfully completed the program with very positive reports as to their progress toward rehabilitation. It appears that the sentencing Judge gave considerable weight to this aspect. Unlike the Fergusons, the appellant had experienced an extremely deprived and dysfunctional childhood and suffered from a number of psychiatric conditions.
 Having regard to the relevant features of the offending and matters personal to the appellant and the Fergusons, if I had been sentencing at first instance I would have marked the differences with a greater disparity between the sentences. However, I would not have imposed a lesser sentence in respect of the appellant. I would have imposed a longer aggregate sentence and period to be served upon the Fergusons.
 Notwithstanding that I would have fixed sentences that created a greater degree of disparity, in my opinion the result is not unjust to the appellant. In the particular circumstances the light sentence imposed upon the Fergusons does not create such a manifestly inadequate degree of disparity as to engender in the appellant a justified sense of grievance. Nor does it give the appearance that justice has not been done. The appellant is fortunate that he received a moderate sentence. His criminal conduct would have justified a significantly longer sentence. To reduce either the head sentence or the period to be served before suspension would result in an inadequate sentence.
 I would dismiss the appeal.