The Queen v Renwick & Johnston [2013] NTCCA 3

 

PARTIES:                                         THE QUEEN

 

                                                         v

 

                                                         RENWICK, Michael Edwin David

 

                                                         and

 

                                                         JOHNSTON, Trevor John

 

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

 

JURISDICTION:                              CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                         CA 2 of 2013 (21220667) & (21220665) and CA 3 of 2013 (21237231)

 

DELIVERED:                                   21 FEBRUARY 2013

 

HEARING DATES:                          5 FEBRUARY 2013

 

JUDGMENT OF:                              MILDREN ACJ, KELLY AND BLOKLAND JJ

 

APPEAL FROM:                               BARR J

 

CATCHWORDS:

Criminal law – sentencing – Crown appeal - manifestly inadequate – circumstance of aggravation – whether breach of De Simoni principle – whether portion of suspended sentence too great – Appeal dismissed

 

Criminal Code (NT) s 1, s 213, s 305, s 414

Criminal Code (WA) s 393

Misuse of Drugs Act 1990 (NT)

Sentencing Act (NT) s 5, s 40, s 103

 

R v De Simoni (1981) 147 CLR 383;applied

 

Daniels v The Queen (2007) 20 NTLR 147; R v Daldy (NTSC, SCC 21226273, 4 December 2012), (sentencing remarks); R v Sych and Burns (2006) 18 NTLR 160; discussed

 

Clarke v The Queen [2009] NTCCA 5; Dinsdale v The Queen (2000) 202 CLR 321; McKay v The Queen (2001) 11 NTLR 14; Megson v R (2006) 17 NTLR 57; R v Carey [1998] 4 VR 13; R v Hitanaya [2010] NTCCA 3; R v Kurungaiyi (2005) 15 NTLR 70; R v Messell (2010) 28 NTLR 49; R v Osenkowski (1982) 30 SASR 212; R v Riley (2006) 161 A Crim R 414; R v Rindjarra (2008) 191 A Crim R 171; R v Wilson (2011) 30 NTLR 51; The Queen v Maralngurra [2013] NTCCA 1; referred

 

Dr Mirko Bagaric, ‘The Fallacy and Injustice of Imprisonment to Discourage Potential Offenders,’ (2009) 33 Crim LJ 134;

‘Bringing Sentencing Out of the Intellectual Wasteland – Ignoring Community Opinion’ (2010) 34 Crim LJ 28;

John Nicholson SC ‘Sentencing – good, bad and indifferent’ (2012) 36 Crim LJ 205;

Bagaric & Alexander, ‘(Marginal) general deterrence doesn’t work – and what it means for sentencing,’ 35 Crim LJ 269.

 

REPRESENTATION:

 

Counsel:

    Appellant:                                    D Morters

    Respondent:                                 J Tippett QC

 

Solicitors:

    Appellant:                                    Office of the Director of Public Prosecutions

    Respondent:                                 Maleys Barristers & Solicitors

 

Judgment category classification:   C

Judgment ID Number:                      BLO 1304

Number of pages:                            24


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

The Queen v Renwick & Johnston [2013] NTCCA 3

No. CA 2 of 2013 (21220667) & (21220665) and

CA 3 of 2013 (21237231)

 

 

                                                     BETWEEN:

 

                                                     THE QUEEN

                                                         Appellant

 

                                                     AND:

 

                                                     MICHAEL EDWIN DAVID RENWICK

                                                         First Respondent

 

                                                     AND:

 

                                                     TREVOR JOHN JOHNSTON

                                                         Second Respondent

 

 

CORAM:    MILDREN ACJ, KELLY & BLOKLAND JJ

 

REASONS FOR JUDGMENT

 

(Delivered 21 February 2013)

 

THE COURT:

Introduction

[1]       This is a Crown appeal brought as of right pursuant to s 414(1)(c) of the Criminal Code against sentences imposed on the first and second respondents by the learned sentencing judge on 18 December 2012. 

[2]       The grounds of appeal are as follows: that the sentences were manifestly inadequate; that the learned sentencing judge was in error for failing to take into account facts which on the Crown’s view would aggravate the seriousness of the offending and that the extent of the suspension of each sentence was too great. 

[3]       The principles governing Crown appeals are not in doubt and are well known.  Crown appeals enable the courts to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views and to correct sentences which are so disproportionate to the seriousness of the crime as to “shock the public conscience”.[1]  The Crown is entitled to have sentences corrected which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards.[2] 

[4]       Since the amendments to s 414(1)(A) of the Criminal Code on 27 April 2011, the limitation that formerly applied to Crown appeals because of double jeopardy is no longer relevant.  The court retains a residual discretion to refuse to correct a sentence notwithstanding a finding of manifest inadequacy.[3]

Proceedings before the learned sentencing judge

[5]       Both respondents pleaded guilty on an ex officio indictment to one count of supplying a commercial quantity of a schedule 2 dangerous drug (cannabis)

and one count of supplying a schedule 2 dangerous drug (methamphetamine) contrary to the Misuse of Drugs Act (NT).  The maximum penalty for the charge of supply a commercial quantity of cannabis is 14 years imprisonment and for the charge of supply methamphetamine, five years imprisonment. 

[6]       The first respondent also pleaded guilty on a further indictment to one count of unlawful entry with the following circumstances of aggravation: that the building was a dwelling house; that there was an intention to commit the crime of stealing and that the offence was committed at night time.  The maximum penalty for this count is 20 years imprisonment.  He also pleaded guilty to one count of theft associated with the unlawful entry which carries a maximum penalty of seven years imprisonment.

[7]       On the ex officio indictment both respondents were sentenced to 18 months imprisonment on count 1 and 9 months imprisonment on count 2.  The period of imprisonment on count 2 was to be served cumulatively to the extent of 6 months on count 1.  For both respondents the total head sentence for this offending was two years imprisonment. 

[8]       The second respondent’s sentence was ordered to commence on 5 October 2012.  The sentence imposed on him was ordered to be suspended after he had served six months of the sentence.  An operational period of two years was ordered.

[9]       The first respondent was sentenced to an aggregate term of 6 months imprisonment with respect to the second indictment which was to be cumulative to the extent of three months on the sentences for the ex-officio indictment.  The total head sentence in relation to the second respondent was two years and three months imprisonment, commencing 31 May 2012 and suspended after 9 months.  The operational period was ordered to be two years.

[10]    The agreed facts before his Honour in relation to the first count against the Misuse of Drugs Act were that at some time prior to 5 May 2012 both respondents arranged to transport 4,949.2 grams of cannabis from Adelaide to Darwin for the purpose of commercial sale.  The first respondent arranged the cannabis to be stored in a garden shed at premises occupied by his former partner.  Police monitored discussions between the respondents which indicated they anticipated a profit of approximately $45,000.00.  Police discovered the cannabis on 5 May 2012.  After both respondents became aware that police had discovered the cannabis, the second respondent left the Northern Territory while the first respondent remained in Darwin. 

[11]    In relation to the second count against the Misuse of Drugs Act, on 24 May 2012 both respondents arranged for the first respondent’s daughter to fly to Perth, receive methamphetamine from the second respondent and fly back to Darwin with the drugs.  The first respondent’s daughter was arrested at Darwin Airport on 25 May 2012 in possession of 30.91 grams of a substance containing methamphetamine.  The monitoring of telephone calls by police revealed comments from the first respondent to the second respondent indicating they had lost in excess of $60,000.00.

[12]    The facts in relation to the aggravated unlawful entry and theft, (relevant only to the first respondent), were that the first respondent agreed to take two co-offenders, (who were not dealt with by his Honour), to a location so that they could enter premises where they believed money and drugs were present.  One of the co-offenders told the first respondent the intention was to force the occupant to hand over property to them.[4]  The offence was committed at night time.  The first respondent drove the co-offenders to the premises, (a dwelling house), and waited outside while the co-offenders entered the nearby dwelling, inflicted violence on two residents and stole property.  The first respondent admitted he benefited in the sum of $150.00 for participating in these crimes.

[13]    The first respondent had previous convictions in the Northern Territory and other jurisdictions.  Generally speaking, most of his previous convictions were unrelated to drug matters; the majority of previous convictions in the Northern Territory related to traffic matters.  The previous convictions for drug offences in the Northern Territory were dealt with by way of fines in the Court of Summary Jurisdiction.  One recent matter of significance was a conviction in 2009 for aggravated assault for which he was sentenced to a term of 14 days imprisonment suspended after one day.  An operational period of 12 months was set.  There is no record of any breach of that operational period.  Many of the interstate convictions are old and a number date back to when the first respondent was a juvenile.  He has served relatively short periods of imprisonment as an adult.  The offences for which he has previously been ordered to serve a gaol sentence include aggravated assault and assault police (1993); unlawful use of a motor vehicle (1993); break enter and steal, aggravated assault (1994) and serious assault on a police officer (1995).  Although some of the earlier convictions are serious and overall indicate the first respondent is not a law abiding person, they do not appear to be at the level of gravity of the current matters. 

[14]    In submissions on behalf of the first respondent his Honour was told the first respondent was 51 at the time offending and was 52 at the time of sentencing.  He has 10 children whose ages range between 14 months and 30 years of age.  One of his daughters was in court to support him.  He had lived in the Northern Territory for 20 years, and was originally from Queensland.  He completed schooling to year six in Queensland; his mother passed away when he was young.  His father had abandoned both him and his mother hence he was placed into boys’ homes and various orphanages.  His schooling was disrupted and he had no formal high school education; he can however read.  The work history described to his Honour was varied and included stock work, labouring, building, station work, buffalo and bull catching in both the Northern Territory and Queensland. 

[15]    His Honour was told the first respondent was involved in a serious motor vehicle accident in the early 1990s that caused detrimental and significant health issues.  For the past 10 years he has declined both mentally and physically.  The consequences of his injuries coincided with the commencement of drug use including the use of MS Contin (upon which he is now reliant), and other pain killers.[5]  His Honour was told the first respondent had been smoking cannabis for twenty years and that he became a heavy user after the car accident.  It was said it also helped him sleep.  The Court was told he had been effectively unable to receive that medication while on remand and was “doing it very, very tough” in custody on remand.  It was submitted the seven months on remand had been a harrowing time. 

[16]    He had previously been stabbed by a former partner and spent four or five months in hospital; he had also suffered a minor gunshot wound and was hospitalised for a short period in relation to that.  He suffers chronic pain and suffered a major heart attack in 2003 requiring surgery interstate.  He has been on a disability benefit. 

[17]    In relation to the offending itself his Honour was told the first respondent has known the second respondent for about 20 years.  He had been struggling financially on the disability pension for about 14 years and wanted to provide support for family, particularly his daughter who had recently been sexually assaulted.  It was put the offending would also assist in supporting his own drug use.  His Honour was told the first respondent genuinely regretted being involved in the offending.  He has a 14 month old child with his current partner and one other dependent child.  His Honour’s attention was drawn to the fact that the charges against the Misuse of Drugs Act proceeded by way of ex-officio indictment and he had pleaded guilty at the earliest opportunity to those charges.  This court was told the first respondent did not enter his plea to the unlawful entry and stealing charges until the morning of the sentencing proceedings.  He had previously maintained a plea of not guilty to those charges.  This court was also told the second indictment was originally a more serious count of robbery. 

[18]    His Honour was reminded the first respondent did not make any money out of the criminal enterprises the subject of the intervention of police.  His Honour was also reminded that the 30 grams of methamphetamine falls within the scope of what under the Act is a “trafficable quantity” being between two grams and 100 grams.  It was submitted by the first respondent that the offending was stupid offending.  It was described by his counsel as “spontaneous, unsophisticated and stupid offending from a man who felt at the time that there was a degree of sadness in his life and this was a way out, a quick way out”. 

[19]    His Honour ordered and received an assessment[6] for Suitability for Supervision.  The first respondent was assessed as suitable.  The report also

 

included specific conditions for treatment for substance abuse.[7]

[20]    In terms of the second respondent, a vast array of previous convictions were before his Honour.  The second respondent’s previous convictions for drug offences were dealt with by way of moderate fines.  Some of the significant offending is old, the record commencing in the 1960s. In 1969 he was imprisoned for stealing and receiving and in 1968 for false pretences; in 1966 for shop break and unauthorised use of a motor vehicle.   

[21]    In the 1970s he was imprisoned for various break enter and steal offences; in 1972 he received a term of imprisonment for illegal use of a motor vehicle.  In more recent times, there has been no offending of the level of gravity as the offending being dealt with before the learned sentencing judge. 

[22]    In terms of personal circumstances, his Honour was told the second respondent had entered a plea of guilty to the charges on the ex officio indictment at the very first opportunity.  He is 66 years old, is single and has had four children.[8]  A daughter attended Court to support him from Western Australia.  He has brought up his two sons who have never been in serious trouble.  He has worked all of his life as a fruit picker.  He first came to the Northern Territory 14 years previously to pick mangoes.  He grew up in Clare, South Australia and is one of eight children.  He was schooled until grade seven and then went to work pruning and picking grapes to help support the family.  He has always supported his children, takes great pride in this and gets on well with his ex-wife.  He played A-Grade football for North Adelaide as a young person and during that period started to get involved in trouble, and with other associates committed offences that resulted in terms of imprisonment.

[23]    Through his counsel he told the court he thought that through the current criminal enterprises he could establish a retirement fund.  He told the Court he wanted to retire in any event given his age.  He was hoping not to be before the justice system again. 

[24]    He told the learned sentencing judge he wanted to return to Western Australia as soon as he was able to be released where he would join family.  He has significant medical problems including a vertebrae crushed in a car accident, hyperaesthesia, chronic obstructive pulmonary disease including chest pain and benign prostrate hypertrophy.  He takes a number of prescribed medications on a daily basis including symbicort, albudazole, pantoprazole (for gastro-oesophageal reflux disease), ibruprofen (for relief of pain), salbutamol (broncho-spasm), docusate (constipation), sennosides (stimulant laxative), omeprazole (gastro-oesophageal reflux disease) and prazosin-hydrochoride (high blood pressure).[9]  The court was told he had been examined in relation to heart trouble and that imprisonment would be more difficult for him to bear now than it had been in the past.

[25]    The Crown’s submissions before the learned sentencing judge stressed the necessity to consider the planning, the commercial gain anticipated, the lengthy criminal histories of both respondents and the need to deter and punish for such serious offending.[10]  In particular it was submitted his Honour should bear in mind that both respondents continued their criminal activity notwithstanding they knew they had been detected by police in relation to the first count on the ex officio indictment.

[26]    Counsel for the Crown submitted the learned sentencing judge should have regard to a previous sentence passed by him in a matter of R v Daldy,[11] in which his Honour adopted, as a starting point a head sentence of three years imprisonment for the possession and supply of cannabis for commercial purposes.[12]  In that case the offender had arranged for the transport of drugs into the Northern Territory.  It was submitted the scheme employed by the respondents to bring the drugs into the Northern Territory was relatively sophisticated; the fact that the methamphetamine charge utilized the first respondent’s daughter to bring the drugs to Darwin both aggravated the offending and tended to lessen the first respondent’s claim to be motivated to assist a daughter.  It was submitted that the harms and social consequences of bringing drugs into the Northern Territory should be acknowledged in the sentences.  Additionally it was submitted the first respondent’s role as a driver in the unlawful entry when the primary offenders assaulted two residents causing harm to one required a degree of cumulation in the sentences imposed.  The Crown sought significant sentences in relation to both respondents justified primarily on the basis of the gravity and ongoing nature of the offending, the previous convictions of both respondents and the harms caused by drugs in the Northern Territory.[13]  Further, the Crown submitted that there was nothing in the respondent’s personal circumstances to amount to any significant mitigation.

Ground 1 – That the Sentences were Manifestly Inadequate

[27]    Although the sentences may be characterised as at the lower end of what might be expected for serious drug and related offending, in our view the appellant has not demonstrated the sentences are so low as to “shock the public conscience” or that they are otherwise in need of correction that would justify interference with discretionary sentences.  It is common ground there is no ‘tariff’ for offending of this nature and that the circumstances for even drug offences with a commercial purpose vary widely as between the offences and offenders.  We acknowledge it is well established that offences involving drug distribution for commercial gain attract the consideration of general deterrence as the primary sentencing principle weighing heavily in the final disposition.[14] 

[28]    Although examples may be found of what appear to be heavier sentences being imposed for drug offences with a commercial element, on closer analysis there are often identifiable reasons for the apparent disparity.  For example, in R v Messell,[15] the large scale of the overall operation and the intricacy of the arrangements in part led to a view that a heavier sentence was warranted than had been imposed by the learned sentencing judge.  Daniels v The Queen[16] involved ongoing drug sales in a small Aboriginal community where the appellant was found to be “party to a major drug distribution activity”.  Particular considerations were applicable in that case.

[29]    Before this Court and before his Honour the Crown relied on the sentence imposed in R v Daldy[17] as a comparative sentence involving a similar amount of cannabis being brought into the Northern Territory.  R v Daldy proceeded on three counts against the Misuse of Drugs Act, two of which carried the maximum term of 14 years imprisonment.  The prisoner in R v Daldy had paid others to bring cannabis to him.  His offending had proceeded further into the realisation of proceeds than here.  He had already received $19,700 from sales of cannabis.  It is clear as submitted by the appellant that Daldy had no previous convictions, however as pointed out, there were other considerations in Daldy that may account for the difference in the sentences.  No attempt was made on the hearing of this appeal to put before us a sufficient number of comparative sentences to indicate the general range of sentences for offending of this kind.

[30]    It was submitted that the learned sentencing judge erred in placing insufficient weight on the need for general deterrence and too much weight on considerations such as prospects for rehabilitation and the personal circumstances of the respondents.  As already noted we agree the sentences were in the lower range of what might be expected but the learned sentencing judge clearly took into account the seriousness of the offending.  His Honour referred to the damage that drugs caused the social fabric of the community.[18]  He was concerned about the continued offending so soon after learning of police intervention in relation to the first count on the ex officio indictment;[19] there was no question his Honour considered relatively significant terms of imprisonment as a starting point for both respondents.[20]

[31]    His Honour also appropriately identified the relevant previous convictions of both respondents.[21]  Although there were many convictions noted, his Honour also had regard to the age of some of the convictions, the type of offending and previous penalties.  That his Honour was moved to take account of certain subjective features such as age, (particularly in relation to the second respondent), poor health, (both generally and in the light of prison conditions on remand), as well as prospects and suggestions made for the rehabilitation of the respondents, has not been shown to be inappropriate.  These were the very types of matters to which the learned sentencing judge was entitled to have regard.  If his Honour was moved to accord weight to those matters, in our view that was properly within his Honour’s discretion.  That others may take a different view about the significance of those factors does not in itself lead to the conclusion the sentences were manifestly inadequate.  His Honour was clearly intent on imposing sentences of imprisonment thus acknowledging the significance of the punitive aspects of sentencing including deterrence.  Given the multiple offences, the principle of totality was relevant to enable a disposition that reflected the overall criminality. 

[32]    Counsel for the Crown argued that the offending comprising the aggravated unlawful entry by the first respondent was unrelated to the counts on the ex officio indictment and therefore should not have been accumulated to the extent of 50% of the sentence.  In our view the principle of totality need not be confined in the way suggested by the Crown.  It is a matter of broad discretion utilized to achieve the objective of a sentence reflective of the whole of the conduct.  The unlawful entry was broadly related to drug offending.  The Crown facts revealed the first respondent agreed to drive the principals to the residence where there was “money and drugs”.[22]  One of the items stolen was “cannabis plant material”.  This offending was committed six to eight weeks prior to the offending on the ex officio indictment.  It was within his Honour’s discretion to order partial accumulation, calibrating the sentences in the manner that he thought appropriate in all of the circumstances.

[33]    As with the counts on the ex officio indictment, this Court acknowledges the sentences for the aggravated unlawful entry and stealing were in the lower range but we are not persuaded they were vitiated in error or so low as to shock the public conscience and warrant interference by this Court in the discretion of the learned sentencing judge.  The first respondent had agreed to drive the principal offenders for commercial gain.  The commercial gain was $150 and the proceeds of the theft were not significant.  It was clear the first respondent did not personally commit any acts of violence; the Crown conceded before his Honour that he was not as criminally culpable as the two offenders who entered, although it was submitted he was not “far off”.[23]  The term of six months imprisonment cumulative to the extent of three months for this type of offending in the context of the overall sentences does not in our view demonstrate error. 

[34]    We would dismiss this ground.

Ground 2 – error as to circumstance of aggravation

[35]    This ground is relevant only to the appeal against the sentence in respect of the first respondent for the aggravated unlawful entry and stealing charges.  The circumstances of aggravation alleged and pleaded to were that he entered with intent to commit a crime (stealing) (s 213(4) Criminal Code); that the building was a dwelling house (s 213(4) Criminal Code) and that the offence was at night time (s 213(5) Criminal Code).  By operation of s 213(3), (4) and (5) Criminal Code the maximum penalty prescribed was 20 years.

[36]    His Honour determined that the fact that one of the occupants suffered harm and required treatment in hospital as a consequence of the assault committed by the co-offenders could not form the basis of sentencing the first respondent.  It is convenient to set out the sentencing remarks relevant to this ground:[24]

“On the admitted Crown facts, one of the victims of the illegal entry in which you participated suffered harm and required treatment in hospital as a consequence of assaults committed on him by Smith and Gounder.  A second occupant was also assaulted by Smith.

On further consideration however, I do not take those matters into account in your sentencing because the circumstances of aggravation with which you have been charged and pleaded guilty include relevantly, unlawful entry with intent to commit the crime of stealing and not intent to commit the crime of assault, aggravated assault, cause harm or the crime of robbery.  Moreover, you are not charged as a joint participant in any assault or similar crime of violence.

...

Although you participated with Smith and Gounder in the common purpose, acting as driver to the other two, you did not enter the premises or assault anybody.  Moreover, you did not actually take any property for yourself.

Your counsel has told the court that you were to be paid $150 for your role and this is consistent with the agreed Crown fact that you were unhappy as to the low level of payment to you in that specific amount.  I therefore conclude that you were paid only $150 for your role as driver that night.”

[37]    In our view his Honour was not, as a matter of law prevented from having regard to the harm caused by a co-offender if it was in the contemplation of the first respondent, however given the limited detail before his Honour on the nature of the assault causing harm and the nature of the harm itself, we would not interfere with the sentence his Honour passed for this offending.

[38]    This ground concerns the application of broad principles governing determinations on whether circumstances which amount to a crime other than the crime for which an offender has been convicted can be taken into account as part of the circumstances surrounding the commission of the crime.

[39]    The principle in R v De Simoni[25] was concerned with sentencing for a crime of robbery in the course of which the offender had wounded the victim.  Under the relevant section of the Western Australian Criminal Code,[26] “wounding” was a specified circumstance of aggravation which increased the maximum penalty from 14 years to life imprisonment.  In R v De Simoni it was held a judge imposing a sentence is entitled to consider all of the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[27]

[40]    Section 305(4) of the Criminal Code (NT), (a provision in similar terms to   s 393 Western Australian Criminal Code), provides that if it is intended to rely on a circumstance of aggravation “it shall be charged in the indictment.”  In the context of the Criminal Code (NT) the necessity to charge a circumstance of aggravation has been held to be a reference to those circumstances specifically identified by legislative provision rather than every factual circumstance that might be said to aggravate the commission of the offence charged.[28]

[41]    In R v Syrch and Burns[29] this court confirmed the fundamental principle that a sentencing judge is to take into account all of the relevant circumstances surrounding the commission of the crime, both aggravating and mitigating.  The question of what are the circumstances surrounding the crime was held to be left to the good sense of sentencing judges without laying down rules.  It is not to be determined by whether or not the conduct is “part of the offence;” but rather by fairness and the practical administration of criminal justice.[30]  Further, Syrch and Burns held that in keeping with the principle expressed in The Queen v De Simoni and with s 305(4) Criminal Code a circumstance of aggravation accompanying the commission of the primary offence must be charged if it is specifically provided for in the Criminal Code and would result in an increased penalty.  That is not the case here.

[42]    The structure of s 213 Criminal Code (NT) means that any offence intended to be committed upon entry of the building which carries a maximum penalty of more than three years imprisonment increases the maximum for the s 213 offence to 7 years imprisonment.[31]  Further, the fact that the building is a dwelling house increases the penalty to 10 years imprisonment, no matter what the intended offence upon entering is proven to be.  If the Crown had charged any other offences than stealing being intended upon entry of the building, it would not have increased the maximum penalty beyond that which applies when “intent to commit the crime of stealing” is charged.  Taking account of the harm caused, does not, in our opinion offend the principle in De Simoni, but rather would give expression to the principle in Syrch and Burns that both aggravating and mitigating circumstances of the offending be taken into account.

[43]    As counsel for the Crown has pointed out on appeal and we accept to be the case, had the Crown elected to charge “intention to assault”, (without circumstances of aggravation), the maximum would have been two years imprisonment.[32]  It is not permissible for the Crown to allege an intention (upon unlawful entry) to commit an aggravated assault as circumstances of aggravation (of assault) are not elements of the offence.[33]

[44]    Although we agree that his Honour was not restrained as a matter of law from taking into account the harm, it is not in our view clear what the nature of the actual harm suffered was.  The first respondent was the driver who was asked to drive the principal offenders to the house where there was “money and drugs”.  He was told the intention was to “force the owner to hand over property to them”.  It is not clear if this “force” meant assaults causing harm or if it referred to menacing behaviour.  For clarification his Honour asked the learned prosecutor whether the Crown accepted the role of the first respondent was “just as a driver”. [34]  The learned Crown Prosecutor said: “As a driver your Honour, but still participated to some extent with each of the principals in the home invasion”, and later “ ... it was certainly lesser than the two that went inside and committed acts of violence”. 

[45]    It is not clear on the facts or from the subsequent clarification what was reasonably contemplated by the first respondent beyond some form of menacing conduct.  The level or type of harm was not described.  There was no victim impact statement or medical report before his Honour which may have clarified this.

[46]    Although we agree it was an error to conclude that as a matter of law that harm could not be taken into account, in assessing the gravity of the offending, given the vagaries surrounding the extent of the harm, this consideration could not have made a significant difference to the sentences imposed. 

[47]    We would not allow the appeal on this basis.

Ground 3 – The Extent of the Suspension of Each Sentence was too Great

[48]    The Crown submits the period of the sentence to be served before suspension was inadequate given the antecedents of each respondent.  Further, it is said to demonstrate that the learned sentencing judge gave undue weight to the subjective factors relevant to both respondents in the light of well established principles for offending in the nature of commercial drug supply.  We agree that the proportion of the sentence to be served is low; one third of the total sentence for the first respondent and one quarter of the total sentence for the second respondent.  We are not persuaded however that it is so low that it should be interfered with.

[49]    There is no minimum period established, either at law or by authority, as to the length of time an offender is required to spend in actual imprisonment before release on suspension.  The minimum term to be served includes a punitive element.  The same considerations that are relevant for the imposition of the head term of imprisonment must be revisited in determining whether to suspend that term,[35] or any part of it.

[50]    Setting the minimum term requires both consideration of the gravity of the offence and the circumstances of the offender.  The Sentencing Act (NT) allows a Court to make an order suspending a sentence where it is satisfied that it is desirable to do so “in the circumstances”.[36]  In our view this requires consideration of both the objective and subjective circumstances.

[51]    Despite arguments on behalf of both respondents referring to learned articles pointing out the lack of empirical research supportive of the principle of general deterrence,[37] we agree with the appellant that general deterrence is the major sentencing principle governing commercial drug supplies.  Further, general deterrence is required as a matter of law,[38] when sentencing offenders in the Northern Territory.  This does not mean however that there cannot or should not be a proper balancing with other factors, both objective and personal circumstances before a final sentence is passed.

[52]    In setting both the head term and the minimum terms, as we have already said, we agree these sentences are low but we see no error in the learned sentencing judge’s identification of the significance of aspects of the criminal conduct or the subjective features.  There is no tariff for such offending.  His Honour was entitled to have regard to rehabilitation, (including treatment for addiction), age, health, the harshness of remand conditions and pleas of guilty in setting both terms.  Given a significant portion of the sentence was suspended, his Honour would be entitled to reason that this assisted with providing an incentive for both offenders not to re-offend and was therefore an aid to reduce the risk of re-offending.  In our view both the minimum and head terms of imprisonment do provide some general deterrence to others from committing offences of this type.

[53]    We would not allow this ground of the appeal. 

[54]    The appeal is dismissed.

_____________________________



[1]         R v Osenkowski (1982) 30 SASR 212 per King CJ at 213; R v Riley (2006) 161 A Crim R 414 at 18-20; R v Hitanaya [2010] NTCCA 3.

[2]         R v Riley (2006) 161 A Crim R 414 at 19 citing Barbara (unreported) CCA (NSW) No. 60638 of 1996 (24 February 1997); R v Rindjarra (2008) 191 A Crim R 171 at [28], [29].

[3]         R v Wilson (2011) 30 NTLR 51 per Riley CJ at 27.

[4]         AB 13.

[5]         AB 17-22. 

[6]         Under s 103 Sentencing Act.

[7]         AB 82.

[8]         AB 77.

[9]         AB 78-79.

[10]        AB 37-38.

[11]        SCC 21226273, 4 December 2012.

[12]        AB 14-15, 39.

[13]        AB 35-50.

[14]        Clarke v The Queen [2009] NTCCA 5 at [46]; Daniels v The Queen (2007) 20 NTLR 147; R v Carey [1998] 4 VR 13 per Winneke P at 17.

[15]        (2010) 28 NTLR 49.

[16]        (2007) 20 NTLR 147.

[17]        Sentencing Remarks, NTSC, SCC 21226273, 4 December 2012.

[18]        AB 88.

[19]        AB 88; 90.

[20]        AB 88; 90.

[21]        AB 87; 90.

[22]        AB 59.

[23]        AB 41.

[24]        AB 84-85.

[25]        (1981) 147 CLR 383.

[26]        Section 393 Criminal Code (WA).

[27]        R v De Simoni at 389, Gibbs CJ with whom Mason and Murphy agreed.

[28]        See R v Syrch and Burns (2006) 18 NTLR 160 at 164 at [13].  Section 1 Criminal Code (NT), “circumstance of aggravation” means any circumstance by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.

[29]        (2006) 18 NTLR 160.

[30]        R v Syrch and Burns (above) at [16], [20], [22], [25]; see also McKay v The Queen (2001) 11 NTLR 14 at 27-29; [28] – [30].

[31]        Section 213(3) and (4), Criminal Code (NT).

[32]        S 213(2) Criminal Code (NT).

[33]        R v Kurungaiyi (2005) 15 NTLR 70, per Mildren J at [17]; Megson v R (2006) 17 NTLR 57.

[34]        AB 13.

[35]        Dinsdale v The Queen (2000) 202 CLR 321 and 348; see also the joint judgment of Gaudron and Gumman JJ at 330; discussed recently in The Queen v Maralngurra [2013] NTCCA 1 at 28.

[36]        Section 40(1) Sentencing Act (NT).

[37]        Eg Dr Mirko Bagaric, ‘The Fallacy and Injustice of Imprisonment to Discourage Potential Offenders,’ (2009) 33 Crim LJ 134; ‘Bringing Sentencing Out of the Intellectual Wasteland – Ignoring Community Opinion’ (2010) 34 Crim LJ 28; John Nicholson SC ‘Sentencing – good, bad and indifferent’ (2012) 36 Crim LJ 205; Bagaric & Alexander, ‘(Marginal) general deterrence doesn’t work – and what it means for sentencing,’ 35 Crim LJ 269.

[38]        Sentencing Act (NT), s 5(1)(c) “to discourage the offender or other persons from committing the same or similar offence”.