Bakos v The Queen - [2006] NTCCA 5

Bakos v The Queen [2006] NTCCA 5
PARTIES:BAKOS, RONNIE
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:NO. CA 29/2005 (20502273)
DELIVERED:  3 MARCH 2006
HEARING DATES:  17 FEBRUARY 2006
JUDGMENT OF:  ANGEL, MILDREN & RILEY JJ
CATCHWORDS:

STATUTES – INTERPRETATION- CRIMINAL LAW– DRUG OFFENCES - SENTENCE

Appeal against sentence – Misuse of Drugs Act (NT) – Section 37(5) - Defendant drug dependent person - Whether mitigating – Drug dependence at time of offending a circumstance of the offending for the purpose of section 37(2) Misuse of Drugs Act (NT) –Appeal allowed.

Tramontano v R (2002) 131 ACrimR 1;Miller v Burgoyne (2004) 150 ACrimR 7, applied.
REPRESENTATION:
Counsel:
Appellant:S Cox QC
Respondent:  Dr N Rogers
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ang200603
Number of pages:  5

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bakos v The Queen [2006] NTCCA 5

No. CA 29/2005 (20502273)
BETWEEN:

RONNIE BAKOS
Appellant

AND:

THE QUEEN
Respondent

CORAM: ANGEL, MILDREN & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 3 March 2006)
THE COURT:

On 17 February 2006 at the conclusion of the hearing of this matter we allowed this appeal by leave against sentence and ordered that the non–parole period fixed by the judge at first instance be set aside. We further ordered that the unserved balance of the head sentence be suspended on condition that the appellant place himself under the supervision of the Director of Correctional Services for a period of 18 months and that the suspension of the sentence be conditional upon the appellant obeying all lawful directions of the Director of Correctional Services, undertaking such urine analysis tests as may from time to time be required by the Director of Correctional Services and such drug counselling as may be recommended by the Director of Correctional Services, and further, not using any illicit drugs during the period of 18 months. We fixed an operative period for the purposes of s 40(6) Sentencing Act (NT) of 18 months from 17 February 2006.
What follows are our reasons for making those orders.
On 7 December 2005 the appellant pleaded guilty to three offences under the Misuse of Drugs Act (NT). The three offences comprised the unlawful possession of a trafficable quantity of cocaine (9.167 grams) contrary to s 9(1) and (2)(b)(ii) Misuse of Drugs Act (NT) for which the maximum penalty is seven years imprisonment; the unlawful possession of a trafficable quantity of heroin (7.1264 grams) contrary to s 9(1) and (2)(b)(ii) Misuse of Drugs Act (NT) for which the maximum penalty is seven years imprisonment; and finally, the unlawful supply of heroin to another person contrary to s 5(1) & (2)(a)(ii) Misuse of Drugs Act (NT) for which the maximum penalty is 14 years imprisonment. For the purposes of the Misuse of Drugs Act (NT)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakos v The Queen

Details

AGLC: Bakos v The Queen [2006] NTCCA 5
Case: [2006] NTCCA 5
Decision Date: 3 MARCH 2006

CaseChat Overview and Summary

The appeal in *Bakos v The Queen* concerned the sentencing of the appellant for drug offences under the *Misuse of Drugs Act* (NT). The central question was whether the appellant's status as a drug-dependent person at the time of the offending constituted a mitigating circumstance for the purposes of sentencing under the Act.

The primary legal issue before the Court of Appeal was the proper interpretation of section 37(5) of the *Misuse of Drugs Act* (NT) in conjunction with section 37(2) of the same Act. Specifically, the court had to determine whether drug dependence, as defined by the Act, was a circumstance of the offending that could be considered in mitigation of sentence, or if it was a separate consideration.

The Court of Appeal, applying the principles established in *Tramontano v R* and *Miller v Burgoyne*, held that drug dependence at the time of the offending was indeed a circumstance of the offending for the purposes of section 37(2). The court reasoned that the Act contemplated drug dependence as a factor that could be taken into account when determining an appropriate sentence, particularly in relation to the offender's culpability and the need for rehabilitation. Consequently, the appeal against sentence was allowed.

Orders