Chin v The Queen

[2020] NTCCA 7

CITATION:Chin v The Queen [2020] NTCCA 7

PARTIES:CHIN, Robert

v

THE QUEEN

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

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 26 of 2019 (21625264)

DELIVERED:  1 July 2020

HEARING DATES:  2 June 2020

JUDGMENT OF:  Grant CJ, Blokland and Hiley JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Failure to take into account a relevant consideration – Manifest excess – Misapplication of principle – Re-sentence

Appellant sentenced to imprisonment for 10 years for the supply of commercial quantities of methamphetamine and cannabis – Whether sentence manifestly excessive – Whether sentencing judge erred in applying The Queen v Roe contrary to the principle of instinctive synthesis – Whether principle of parity required appellant to receive a lesser sentence than his co-offender – Whether sentencing judge failed to consider the appellant’s prospects of rehabilitation – No specific error identified in the reasons of the sentencing judge – Sentence manifestly excessive – Appellant re-sentenced.

Misuse of Drugs Act 1990 (NT) s 3

Donovan v The Queen [2010] VSCA 169, Edmonds v The Queen [2019] NTCCA 1, Green v The Queen (2011) 244 CLR 462, Kristiansen v Young [2010] ACTSC 61, Lowe v The Queen (1984) 154 CLR 606, Postiglione v The Queen(1997) 189 CLR 295, R v Kerr [2003] NSWCCA 234, R v Koumis (2008) 18 VR 434, R v McGowan (1986) 42 SASR 580, R v Proom (2003) 85 SASR 120, R v Stone [2010] QCA 157, Weininger v The Queen (2003) 212 CLR 629, R v Wilton (1981) 28 SASR 362, R v Wing Cheong Li [2010] NSWCCA 125, The Queen v Indrikson [2014] NTCCA 10, The Queen v Kilic (2016) 339 ALR 229, The Queen v Roe [2017] NTCCA 7, referred to.

A Freiberg, Fox &Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition).

REPRESENTATION:

Counsel:

Appellant:M Thomas

Respondent:  M Chalmers

Solicitors:

Appellant:Direct brief

Respondent:  Officer of the Director of Public Prosecutions

Judgment category classification:    C

Number of pages:  22

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

Chin v The Queen [2020] NTCCA 7

No. 21625264

BETWEEN:

ROBERT CHIN

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, BLOKLAND and HILEY JJ

REASONS FOR JUDGMENT

(Delivered 1 July 2020)

THE COURT:

1. On 25 August 2017, the appellant and his co-offender were each found guilty by a jury of one count of supplying a commercial quantity of a Schedule 1 drug (methamphetamine) and one count of supplying a commercial quantity of a Schedule 2 drug (cannabis). On 28 November 2017 both the appellant and the co-offender were sentenced to an aggregate term of imprisonment of 10 years, backdated to commence on 20 June 2017 to take account of time already spent in custody. A non-parole period of five years was fixed for each of them.

2. On 19 January 2020, an extension of time within which to make application for leave to appeal, and leave to appeal, were granted by a single Judge. The grounds of appeal are as follows:

   (a)that the sentence imposed is manifestly excessive;

   (b)that the sentencing judge erred in using The Queen v Roe[1] as the means to arrive at the sentence imposed, thereby offending the fundamental principle of instinctive synthesis;

   (c)that the principle of parity ought to have dictated that the appellant receive a lesser sentence than his co-offender given the findings that the appellant was lower in the hierarchy than the co-offender and that the appellant was a drug user who was partly motivated by his drug use; and

   (d)that the sentencing judge failed to consider the appellant’s prospects of rehabilitation.

   Findings of fact by the sentencing judge

3. Before turning to consider those grounds of appeal, it is necessary to address the findings of fact made by the sentencing judge. The facts on which the appellant stood to be sentenced, and was in fact sentenced, for the cannabis supply offence charged in Count 2 are uncontentious. However, there is a dispute concerning the basis on which the appellant stood to be sentenced for the methamphetamine supply offence charged in Count 1.

4. Count 1 charged that:[2]

   Between 22 November 2015 and 28 May 2016 between Darwin and Katherine in the Northern Territory of Australia, [the appellant] unlawfully took part in the supply of a dangerous drug to another person.

   Particulars of dangerous drug supplied: Methamphetamine as specified in Schedule 1

   AND THAT the unlawful supply involved the following circumstance of aggravation,

   (i)    that the dangerous drug was a dangerous drug specified in Schedule 1 and that the amount of the dangerous drug was a commercial quantity.

5. During that period police were monitoring the appellant’s phone calls and SMS messages. At hearing of the appeal, counsel for the appellant submitted that for the methamphetamine supply offence the appellant only stood to be sentenced, and was in fact sentenced, on the basis that it was comprised by three isolated transactions which took place on 12 December 2015, 6 January 2016 and 4 April 2016 respectively. That submission is based on an attenuated reading of the Sentencing Remarks, and should not be accepted.

6. In the course of the Sentencing Remarks the sentencing judge said, “I am going to talk about Count 1 now which involves Mr Chin only”.  The sentencing judge then went on to describe the following transactions.[3]

7. The first transaction described at that point in the Sentencing Remarks was a supply of 3.5 grams of methamphetamine to a person on 12 December 2015. A coded message was sent to the appellant requesting the supply of methamphetamine, and the appellant made arrangements through phone calls and SMS messages which culminated in meeting the recipient in Katherine and delivering a package containing 3.5 grams of methamphetamine. Police observed this activity and arrested the recipient.

8. The second transaction described involved the appellant engaging in the supply of 56.01 grams of methamphetamine on 6 January 2016. This followed a phone conversation he had with the co-offender in which they arranged for the appellant to go to the co-offender’s residence to collect the methamphetamine using the code “two mangoes” for two ounces of methamphetamine. The appellant subsequently went together with his partner and collected the methamphetamine from the co-offender. Police apprehended the appellant and his partner shortly after that transaction. At that time, the appellant’s partner told police the methamphetamine was hers. The sentencing judge was satisfied beyond reasonable doubt the 56.01 grams of methamphetamine was jointly possessed by the appellant and his partner.

9. In the third transaction described, the appellant and the younger sister of his partner arranged for the supply of an unknown quantity of methamphetamine to a number of persons on 4 April 2016. The intended transaction did not eventuate because the suppliers became nervous. 

10. After describing those three particular transactions, the sentencing judge then went on to describe a number of other transactions comprehended by Count 1 in the indictment, without providing any particular description of each transaction:[4]

    There were numerous other phone calls and SMS messages between those dates in which you arranged to meet with another person or people in order to take part in various supplies of methamphetamine.  Those communications all fall within the extended definition of “supply” regardless of whether the individual transactions under discussion in those phone calls ever proceeded to completion.

11. The sentencing judge then went on to describe the offending comprehended by Counts 2 and 4, by which the appellant and his co-offender respectively were charged with the supply of a commercial quantity of cannabis. Her Honour then came to consider Count 3, which charged the co-offender with the supply of methamphetamine to the appellant by reference to nine separate transactions which took place between 27 November 2015 and 6 January 2016.[5] The sentencing judge was satisfied to the requisite standard that each of these transactions had taken place.

12. Immediately after describing those nine transactions, the sentencing judge stated:[6]

    I am going to talk about both men and the offending now.

    I am satisfied beyond reasonable doubt that these instances of supply of methamphetamine and cannabis by Mr Chin were part of a business enterprise being conducted for profit by Mr Chin in which he purchased and on-sold methamphetamine and cannabis, buying from and selling to others (including, most prominently [the co-offender] who supplied him with both methamphetamine and cannabis).

13. When considered in context, it is plain that the methamphetamine supply offence charged in Count 1 comprehended the three transactions which were initially described by the sentencing judge, the various unspecified transactions, and the nine transactions in which the appellant arranged to procure methamphetamine from his co-offender for the purpose of supply (the last of which was the supply of 56.01 grams of methamphetamine on 6 January 2016 which formed one of the three transactions initially described by the sentencing judge). So much is also apparent from the manner in which Count 1 was put to the jury during the course of the summing up. The jury aid relevantly provided:[7]

    4.    The Crown case on count 1 is twofold:

    (a)the Crown also says that in a series of telephone calls between 22 November 2015 and 28 May 2016 with a number of other people (including [the co-offender]), [the appellant]:

    (i)arranged to meet [the co-offender] to acquire methamphetamine for the purpose of supplying it to other people,

    (ii)arranged to meet other people in order to supply them with methamphetamine or to participate in the supply of methamphetamine to them,

    (iii)arranged for third parties to supply methamphetamine to other people, and

    (iv)facilitated the supply of methamphetamine to other people.

    …

    5.    For you to find [the appellant] guilty of count 1, the Crown must prove beyond reasonable doubt EITHER:

    (a) that in telephone calls and SMS messages between 22 November 2015 and 28 May 2016 [the appellant]:

    …

    (iii)did or offered to do an act preparatory to the supply or transport of methamphetamine (for example arranged to acquire methamphetamine in order to supply it to someone else, arranged to meet someone so that a supply of methamphetamine could take place, or arranged for other people to meet for that purpose)

    …

    ·     If you are satisfied that [the appellant] did one or more of the things set out in 5(a) in relation to the drug methamphetamine, that is sufficient.  It does not matter whether or not he went on to actually supply a quantity of methamphetamine, or whether he supplied a different substance, or none.

    (Emphasis by underlining added.)

14. The trial proceeded on the basis that the methamphetamine supply charge comprehended the nine transactions between the appellant and his co-offender, and the sentencing judge found, consistent with the jury’s verdict on Count 1, that those transactions had taken place. It is also plain enough that the sentencing judge sentenced on that basis, and that it was open to do so on the extended definition of “supply”. Section 3 of the Misuse of Drugs Act 1990 (NT) defines “supply” to mean:

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

    (b)   offer to do an act mentioned in paragraph (a); or

    (c)   do, or offer to do, an act preparatory to, in furtherance of, or for the purpose of, an act mentioned in paragraph (a);

    and includes barter and exchange.

15. That definition extends to include an act preparatory to supply such as the acquisition, or arrangement for the acquisition, of methamphetamine in order to supply it to someone else. That was the character of the appellant’s dealings with the co-offender in the nine transactions which the sentencing judge found had taken place. That is also consistent with the submissions on sentencing. The Crown’s written submissions in relation to the first species of supply particularised in the jury aid (set out in paragraph 4(a)), was that the probative force of the telephone intercept material relied on was “overwhelming”.[8] It should be noted in this respect that the evidence of those nine transactions was derived solely from the interception of telephone conversations and text messages between the appellant and his co-offender. That is consistent with the oral submissions on this issue, which included:[9]

    Your Honour, the Crown case in relation to [the appellant] was that he was a very busy, and for a time increasingly successful, mid to high-range local dealer and the way we’ve characterised in our sentencing submissions that … period of success is that it was very much related to the developing relationship that he had with [the co-offender] and his ability to source reasonably substantial amounts of methamphetamine and therefore avoid having to descend all that frequently into the street level dealing.

16. In other words, the appellant’s methamphetamine supply activity charged in Count 1 was inextricably linked to and included the acquisition of methamphetamine from the co-offender.[10] There was nothing put to contrary effect in the submissions made by counsel then appearing for the appellant during the course of the sentencing proceedings.

17. During the course of those nine episodes of supply the appellant and the co-offender made arrangements using the code “mango” to denote an ounce of methamphetamine. Although the quantities actually supplied on all but the last of those occasions were not seized by police, it was the Crown position on sentencing that the communications established the total quantity supplied was something in the order of 224 grams. That figure was derived from the fact that the intercepted telephone conversations disclosed that in December 2015 the appellant sourced 168 grams of methamphetamine from the co-offender[11], and that the appellant was apprehended on 6 January 2016 in possession of a further 56.01 grams which he had just procured from the co-offender.

18. In relation to the cannabis supply offence charged in Count 2, the sentencing judge found that on 14 April 2016 the appellant arranged for his co-offender to supply him with three pounds of cannabis. The funds for the purchase of the cannabis were to be provided by a third person. The prospective purchaser did not provide those funds, however the co-offender did in fact supply the cannabis to the appellant who in turn arranged an alternative buyer.[12]

19. The sentencing judge was satisfied beyond reasonable doubt that these instances of supply of methamphetamine and cannabis by the appellant were part of a business enterprise conducted for profit. The appellant recruited others to sell on his behalf, including Thomas Power, Lindsay Bunn, Erin Walton, Stephen Copley and Leilani Dos Santos. Significantly, he recruited and used his (albeit adult) children in his drug distribution business. He ordinarily sold the methamphetamine and cannabis for cash, but at times received payment in the form of jewellery.[13] Those activities continued after the appellant had been arrested on 6 January 2016 and subsequently released on bail.

20. The sentencing judge found that it was apparent from the text and phone conversations that the co-offender was “higher up the supply chain than [the appellant]”. The sentencing judge also found that once the appellant stopped receiving drugs from his co-offender in the second period during which police were monitoring the appellant’s phone, the appellant’s business suffered and he was dealing more frequently in small amounts at street level and with increasing desperation to source the drug.[14]

    The parity ground

21. It is convenient to deal first with the ground contending that the principle of parity ought to have resulted in the appellant receiving a lesser sentence than his co-offender. Prior criminal history and the degree of culpability and criminality are among the matters properly taken into account in determining the sentences properly imposed on co-offenders in respect of the same type of criminal conduct.[15] Some differentiation between sentences imposed upon co-offenders will be justifiable in circumstances where there are differences between their respective roles, significant variations in their prior convictions or relevant differences in their personal circumstances.[16] As Gibbs CJ stated in Lowe v The Queen:[17]

    It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. 

22. In that same case, Dawson J stated:[18]

    There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for.  

23. Those formulations were adopted in Postiglione v The Queen in the following terms:[19]

    The parity principle upon which the argument in this court was mainly based is an aspect of equal justice.  Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated. …

    Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence.  Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.

24. The first point of distinction between the appellant and his co-offender sought to be made by counsel for the appellant relates to their relative moral culpabilities, principally by reference to their positions in the supply chain. As described above, the sentencing judge found the co-offender was higher in the supply chain. Despite that finding, the sentencing judge found no reason to distinguish between the two offenders in terms of the objective seriousness of the offending, or their respective moral culpabilities.

25. The position in the supply chain was not necessarily determinative of relative moral culpability in the present case. This was a matter to which attention was drawn by the Crown during the course of its sentencing submissions. When addressing the question of parity the Crown made the following submissions.[20] First, the appellant was a very busy, successful, mid to high-range dealer. Secondly, the appellant had a relatively high place in the local drug distribution hierarchy above dealers who themselves were doing “a lot of trade” and who “had a turnover which involved a quite significant dollar value”. Thirdly, the co-offender’s activity was of “much smaller compass” compared to the “sheer volume and frequency of the transactions engaged in by [the appellant]”. It must be recognised in this respect that the co-offender was not the appellant’s only supplier over this period. Ultimately, however, the Crown did not cavil with the proposition that their moral culpabilities were “at more or less an equal level” for parity purposes.

26. Although the co-offender’s conduct was serious because he was sourcing the drugs to supply to the appellant, he was, in effect, a conduit. Moreover, the only activity for which he stood to be punished were his dealings with the appellant. On the other hand, the appellant’s role in the offending involved the establishment and maintenance of a significant drug supply network. Not only was the appellant implicated in the supplies involving the co-offender, he also stood to be sentenced for numerous additional transactions in which he took part in various supplies of methamphetamine. The co-offender’s activity relating to the methamphetamine offence with which he was charged took place over a six-week period. The appellant’s activities extended over a period of six months. The appellant actively recruited and engaged a number of well-known retail drug suppliers, and involved two of his own children. In our view these were aggravating factors relevant to the appellant’s moral culpability which were not present in the co-offender’s case.

1. The second point of distinction sought to be made by counsel for the appellant is that the co-offender’s sole motivation was commercial gain, whilst the appellant’s conduct was found to be partly motivated by his own drug habit. Drug dependency it is not a mitigating factor for an offender who has been found guilty of trafficking of this nature. In R v Proom, Doyle CJ stated:[21]

   To treat drug addiction as a routine mitigating circumstance when sentencing an offender, would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction. To say that is not to deny that addiction may be a form of illness. But Parliament has made it clear that the courts must treat unlawful dealing in drugs severely. It would seem curious in that context to treat as a mitigating factor, the fact that a crime was committed to obtain money with which to purchase drugs in breach of the law.

2. Similarly, in R v Koumis the Victorian Court of Criminal Appeal stated:[22]

   Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence. Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence. Generally speaking, addiction, and any consequential impairment of judgment, will not have any significant mitigatory effect upon those sentencing considerations.

3. Although counsel for the appellant drew attention to the fact that there was no evidence that the appellant lived a lavish lifestyle or had accreted substantial assets from his drug supply activity, it is not in dispute that the appellant’s motives were commercial in nature. In these circumstances, the appellant’s own drug use had limited, if any, mitigating effect.

4. A further point of differentiation is the appellant’s lengthy criminal history. So far as drug-related offending is concerned, the appellant has a conviction for possessing a dangerous drug in 2016; convictions for possessing a precursor to a dangerous drug, possessing methylamphetamines and possessing a trafficable quantity of a dangerous drug in 2012; a conviction for possessing a dangerous drug in a public place in 2006; and two convictions for possessing a commercial quantity of a Schedule 2 substance in 2005. For the offending in 2005, he was sentenced to imprisonment for 12 months which was suspended after he had served 28 days. For the conviction for possessing a traffickable quantity of a dangerous drug in 2012, the appellant was sentenced by the Supreme Court to imprisonment for 18 months. On that same day, the appellant was sentenced to imprisonment for 12 months in the Local Court for possessing a precursor to a dangerous drug, which was suspended after he had served approximately 2 ½ months.

5. In addition to that drug-related offending, the appellant had convictions recorded between 2004 and 2016 for possessing prohibited firearms, possessing an unlicensed firearm, failing to meet storage requirements, possessing ammunition without a permit, delivering a firearm to an unlicensed person, unlawfully possessing property and stealing.  He also had recorded breaches of orders suspending sentence, bail and a restraining order.

6. Ranged against those matters, the co-offender had no previous convictions apart from one road traffic matter. The fact that the appellant continued his supply activities after 16 January 2016 when he was entrusted to remain at liberty in the community on bail was also an aggravating factor which was not present in the co-offender’s circumstances. The sentencing judge seemed to suggest that those different criminal histories were relevant only to whether the co-offender should receive a non-parole period or a partly suspended sentence (although an order suspending sentence was not available in the circumstances).[23] If that is what was intended to be conveyed, we are respectfully unable to agree. An offender’s criminal history is as relevant to the fixing of a head sentence as it is to the structure of that sentence. As the plurality stated in Weininger v The Queen:[24]

   A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.

7. For these reasons, we are unable to conclude that the appellant should have received a lesser sentence than his co-accused. However, that particular contention has been subsumed by the fact that since the sentences were passed, the co-offender’s sentence has been reduced to an aggregate period of imprisonment for eight years after this Court found it was manifestly excessive.[25] In its Reasons for Decision, this Court, differently constituted, made the following observations:

   Against that background, we have concluded that the sentence imposed was manifestly excessive having regard to the nature and scope of the offending for which the applicant was found guilty.  We have reached that conclusion on the basis that the supply involving methamphetamine took pace in a discrete window between 25 November 2015 and 7 January 2016, and the supply of cannabis took place on a single occasion in a quantity of 3 pounds.  We have reached that conclusion notwithstanding that the applicant was in a higher place in the supply chain and that his sole motivation was commercial gain. 

   For parity purposes there were two significant points of distinction between the applicant and his co-offender.  First, the applicant had no criminal history, while the co-offender had a lengthy, highly relevant and somewhat disturbing criminal history.  Secondly, the co-offender had actively recruited and engaged a relatively extensive distribution network involving a number of well-known retail drug suppliers, and involving two of his own children.  The applicant had no involvement in that network beyond his supply to the co-offender.

8. Although the question of parity was not an issue which arose directly in the course of that appeal, it was indirectly relevant to the determination to resentence the co-offender to a lesser sentence. The consequence of that re-sentencing was to leave the appellant with a greater sentence than the co-offender. The observations made by the Court concerning parity in the co-offender’s appeal do not operate as any form of issue estoppel or res judicata in the context of this appeal. However, for the reasons we have already described, which are broadly consistent with the brief assessment made by the Court in the co-offender’s appeal, we are also of the view that the appellant’s antecedents and the conduct comprehended by the methamphetamine supply charge were sufficient to warrant a greater penalty than that imposed on the co-offender. That assessment is not determinative of whether the sentence imposed on the appellant was manifestly excessive, and we turn now to consider that matter.

   Manifest excess

9. The sentencing judge found, with the concurrence of both the Crown prosecutor and counsel then appearing for the appellant, that the appellant and co-offender fell within the second category described by this Court in The Queen v Roe in the following terms:[26]

   The second category of case involves offenders who are in effect convicted of conducting a drug trafficking business for a continuing period of time.  These offenders are characteristically higher up the level of the drug supply chain and they may have established a small organisation in which they use other people as couriers and suppliers to drug users.  The starting point in these cases is ordinarily a sentence of seven to 10 years’ imprisonment.

10. As subsequently explained in Edmonds v The Queen[27], the categories discussed in Roe operate as broad categorisations of the dispositions made in those cases which were subject to review. The penalties referred to are indicative starting points before significant matters of mitigation are considered. In each category, the penalty imposed may be lower or higher having regard to the particular subjective circumstances of the offender, however those subjective factors cannot result in an outcome which is disproportionate to the crime. The summary of categories in Roe does not operate as a guideline judgment, and is intended only to give an indication of particular factors that might be taken into account or given particular weight in these categories of offence.

11. We have concluded that the sentence imposed on the appellant was manifestly excessive having regard to the nature and scope of the offending involved in the two offences for which the appellant was found guilty. All offences involving the supply of commercial quantities of methamphetamine and cannabis are serious, but the objective gravity of the offending in this case was qualified by the fact that it did not involve the quantities of methamphetamine and cannabis seen in more serious supply cases; it did not result in any great profit to the appellant; it was committed in circumstances where the appellant was only one level above the users and street dealers he supplied; and it did not involve any element of cross-border transportation on the part of the appellant. Although the appellant contested the charges and was not entitled to any reduction for guilty pleas or cooperation with authorities, a head sentence of 10 years was excessive having regard to the nature of this particular offending.

12. That finding makes it unnecessary to consider those grounds which assert specific error on the part of the sentencing judge, but we would make a number of brief observations in that respect.

13. First, we do not accept that the sentencing judge used Roe in a way contrary to the principle of instinctive synthesis. Reference to Roe was quite appropriate for the purposes subsequently explained in Edmonds, and the remarks on sentence show a careful consideration of the particular facts and circumstances of this offending. The reference to Roe formed part of the examination by the sentencing judge of where the facts of this particular offending and offender lay on the spectrum of seriousness.[28] Moreover, during the course of submissions on sentence it was accepted without demur that Roe did not operate to fetter the Court’s sentencing discretion.

14. Secondly, we are also unable to accept that the sentencing judge failed to consider the appellant’s prospects of rehabilitation. Due consideration was given to the appellant’s hope to remain abstinent from drugs in the future and to resume employment, and to his expression of remorse in a letter tendered during the course of sentencing proceedings. The sentencing judge observed:[29]

    However, I do not believe that you are truly remorseful.  Actions speak louder than words.  You conducted a drug-dealing business over an extended period of time with no compunction at all.  You did not cooperate with the authorities, you did not plead guilty, and you told numerous lies during your trial in an attempt to evade responsibility for your offending.

    I am told that during your time on remand, you have successfully undertaken several workshops on Alternatives to Violence and you have been invited to serve as an apprentice facilitator in that program.  You are clearly an extremely intelligent and able man and for much of your life it appears that you put those talents to good use.  Unfortunately in more recent years you have put into quite bad use indeed.

15. It is clear that the sentencing judge assessed the appellant’s prospects of rehabilitation as marginal given his lack of remorse and recent history. It was unnecessary for those observations to be expressly identified as an assessment of the appellant’s “prospects of rehabilitation” in order for it to be characterised as such. In any event, an offender’s prospects of rehabilitation do not carry as much weight in cases of this nature, as the principal sentencing objectives will be general deterrence, the protection of the community, punishment and denunciation.[30]

    Re-sentence

16. We have already described the objective gravity of this offending. There is little by way of mitigating circumstance. 

17. The appellant is a mature man who was born in Darwin in 1964 and who has lived in the Northern Territory all of his life. He has 10 children from his first marriage and one child with a subsequent partner. He has been using methamphetamine since about 1999. Up until the commencement of this most recent offending, he had a relatively consistent employment history and worked for a lengthy period in seafood businesses. He experienced personal tragedies as a younger person.

18. At the conclusion of oral argument, both counsel agreed that in the event that the appellant was to be re-sentenced, an institutional report may assist the Court. We have received the Darwin Correctional Centre Institutional Report which is positive in respect of the appellant’s participation in programs and employment. There are no conduct issues of concern. The report advises that the appellant has completed the Intensive Alcohol and Drugs Program and the Safe Sober Strong Program. He has maintained consistent employment throughout his incarceration and has received positive employment reports. He has completed industry specific educational programs including a barista course and safe food handling skill set. He has participated as a trainer in the Alternatives to Violence Program. We have also received the Certificates provided by his counsel since the hearing of the appeal which confirm the appellant’s successful completion of the workshops associated with that program. We have taken the additional material provided to us into account in the re-sentencing exercise.

    Orders

19. We make the following orders:

    1.The appeal is allowed.

    2.The sentence imposed on the appellant on 28 November 2017 is set aside.

    3.The appellant is re-sentenced to an aggregate term of imprisonment for eight years and six months commencing on 20 June 2017.

    4.A non-parole period of four years and three months is fixed.

[1]    The Queen v Roe [2017] NTCCA 7.

[2]    Appeal Book (AB) 4.

[3]    AB 83-84.

[4]    AB 84.

[5]    AB 83-84.

[6]    AB 85.

[7]    AB 32-34.

[8]    AB 11.

[9]    AB 50-51.

[10]     That appeared to be accepted at paragraph [24] of the Written Submissions filed by counsel for the appellant, which stated: "Regarding methamphetamine, the essence of the offending was captured by the same 9 transactions between [the appellant] and [the co-offender]."  However, during the course of oral submissions that characterisation was not accepted.

[11]     AB 17.

[12]     AB 84.

[13]     AB 85.

[14]     AB 86.

[15]R v Wilton (1981) 28 SASR 362; R v Kerr [2003] NSWCCA 234; R vStone [2010] QCA 157; Donovan v The Queen [2010] VSCA 169; Kristiansen v Young [2010] ACTSC 61; R v Wing Cheong Li [2010] NSWCCA 125.

[16]     R v McGowan (1986) 42 SASR 580 at 582-583; Lowe v The Queen (1984) 154 CLR 606; Green v The Queen (2011) 244 CLR 462; A Freiberg, Fox &Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition) at 441.

[17]     Lowe v The Queen (1984) 154 CLR 606 at 609.

[18]Lowe v The Queen (1984) 154 CLR 606 at 623.

[19]Postiglione v The Queen(1997) 189 CLR 295 at 301-2 per Dawson and Gaudron JJ.

[20]AB 50-52.

[21]R v Proom [2003] SASC 88; 85 SASR 120 at [47].

[22]R v Koumis [2008] VSCA 84; 18 VR 434 at 53.

[23]AB 86-87.

[24]Weininger v The Queen (2003) 212 CLR 629 at [32].

[25]     Dinh v The Queen (unreported, NTCCA, 11 December 2019).

[26]     The Queen v Roe [2017] NTCCA 7 at [98].

[27]     Edmonds v The Queen [2019] NTCCA 1.

[28]     The Queen v Kilic (2016) 339 ALR 229 at [19].

[29]     AB 81-82. 

[30]     The Queen v Indrikson [2014] NTCCA 10 at [30].