Clarke v The Queen

Case [2019] NTCCA 2

CITATION:Clarke v The Queen [2019] NTCCA 2

PARTIES:  CLARKE, Tegan

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 22 of 2017 (21716804)

DELIVERED:  10 January 2019

HEARING DATE:  31 May 2018

JUDGMENT OF:  Grant CJ, Blokland and Barr JJ

CATCHWORDS:

CRIMINAL LAW – DRUG OFFENCES – JUDGMENT AND PUNISHMENT

Whether sentencing judge failed to give weight to sentencing purpose of rehabilitation – contention that sentencing court accorded inadequate or excessive weight to a factor properly viewed as a particular of manifest excess – appellant’s history showed prospects for rehabilitation were poor – breach of suspended sentence by reoffending was serious – sentencing judge gave appropriate consideration to rehabilitation – open to conclude prospects of rehabilitation poor – open to conclude, the appellant’s relative youth notwithstanding, that purpose of rehabilitation not a compelling sentencing purpose in the circumstances – appeal dismissed.

CRIMINAL LAW – DRUG OFFENCES – JUDGMENT AND PUNISHMENT

Whether sentencing judge fell into error by effectively sentencing appellant for supply of commercial quantity of methamphetamine when charge for less than commercial quantity – whether breach of principle in The Queen v De Simoni – appellant had significant and relevant criminal history – offending charged in count 2 involved intensive level of drug dealing activity notwithstanding total amount less than a commercial quantity – offending possessed financial or commercial character – appellant engaged in offending shortly after released on order suspending sentence – no basis to conclude appellant sentenced for supply of commercial quantity – appeal dismissed.

CRIMINAL LAW – DRUG OFFENCES – JUDGMENT AND PUNISHMENT

Whether sentences imposed individually and in total manifestly excessive – individual sentences for supply offences not manifestly excessive having regard to nature of offending conduct, appellant’s prior criminal history and fact that offending occurred while appellant was taking the benefit of order suspending sentence – whether sentence imposed for possession of tainted monies manifestly excessive in all the circumstances of the offence and the offender – where offence of dealing with tainted monies does not constitute a separate act of criminality warranting a charge separate and additional to the offence by which those monies were derived, the charge will be an abuse of process and/or may attract a plea in bar – no abuse of process in charging both a supply offence and dealing with monies derived from that supply – where the dealing with tainted monies shares conduct, elements or criminality with the offence by which the monies were derived, matter properly addressed in the imposition of penalty and appropriate orders for concurrency – no necessary call for concurrency where tainted monies are derived from some source other than the supply with which the offender is also charged – assessing objective seriousness of an offence against s 8(1) of the Misuse of Drugs Act (NT) involves consideration of amount(s) involved, number of transactions, period over which transactions occurred, sophistication, size and extent of the…

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AGLC
Clarke v The Queen [2019] NTCCA 2
Case
[2019] NTCCA 2
Decision Date

CaseChat Overview and Summary

The case of *Clarke v The Queen* concerned an appeal against sentences imposed on the appellant for drug offences. The appellant, who was 23 years old at the time of the offending, was involved in the supply of methamphetamine and cannabis, and the possession of tainted monies. The appeal was heard by the Supreme Court of the Northern Territory, comprising Grant CJ, Blokland and Barr JJ.

The legal issues before the Court included whether the sentencing judge erred by failing to give adequate weight to the sentencing purpose of rehabilitation, whether the judge effectively sentenced the appellant for a commercial quantity of methamphetamine when the charge was for a lesser amount, and whether the sentences imposed, both individually and in total, were manifestly excessive. The appellant also contended that the sentencing judge had improperly considered the supply of drugs when sentencing for the possession of tainted monies.

The Court found that the sentencing judge had given appropriate consideration to the appellant's prospects of rehabilitation. Despite the appellant's relative youth, the judge was entitled to conclude, based on her poor prospects for rehabilitation, her significant criminal history including breaches of court orders, and the serious nature of her reoffending while subject to a suspended sentence, that rehabilitation was not a compelling sentencing purpose in this case. The Court also determined that the appellant was not sentenced for a commercial quantity of drugs, but rather for intensive drug dealing activity, and that the charge of dealing with tainted monies did not constitute an abuse of process. However, the Court found that the criminality inherent in the supply offences adequately accommodated the criminality charged in relation to the tainted monies, and that the total sentence of four years and six months imprisonment was manifestly excessive.

Consequently, the appeal was allowed in part. The Court found no error in the sentencing judge's consideration of rehabilitation or the application of the principle in *The Queen v De Simoni*. However, the Court determined that the total sentence imposed was excessive, and the appellant was resentenced.

Orders

Orders of the court

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Background

Background to the litigation

The third ground of appeal claims the learned sentencing judge failed to give any weight to the sentencing purpose of rehabilitation. The sentencing facts The Crown facts presented in the sentencing proceedings were as follows.[4] The appellant was 23 years old, unemployed and living with her mother at the time of the offending. At some time prior to 5 April 2017, and immediately prior to 23 February 2017, the appellant’s boyfriend was supplied with an unknown quantity of cannabis plant material and methamphetamine. The appellant, with and for her boyfriend, sold those drugs to others in and around Darwin. On 5 April 2017 detectives executed a search warrant at the appellant’s residence. On arrival they saw the appellant in the front yard with her young child. As they arrived, attending officers identified themselves and watched the appellant run through the front door and inside the house. She left her child unattended. Detectives accessed her residence through both the front and back of the house. A police officer who accessed the back of the premises saw the appellant run into the garden area. She was told to stop but turned and ran back inside where she was apprehended. Police located a black ‘Sandleford’ metal safe near the appellant’s position when she was first seen in the back garden. During the course of the search, police found and seized a clip seal bag containing approximately 10 grams of cannabis in the first bedroom in a child’s backpack; loose cannabis weighing approximately 0.5 grams in a bowl in the laundry; loose cannabis weighing approximately 0.5 grams in a bowl on the back veranda; three iPhones located in one bedroom; a black Alcatel One-touch phone on the veranda table; a silver Samsung phone on the veranda table; an iPhone on the veranda table; and a fridge bag containing shopping bags emitting a strong odour of cannabis under the kitchen sink. The safe found in the garden bed was seized and forced open. Inside was $40,500.00 in Australian currency in various denominations. At the conclusion of the search the appellant was arrested. She declined to participate in a recorded interview with police. Investigating police determined from text messages on her mobile telephone that she had, on the previous day, sold cannabis to an unknown person. Her mobile phone was forensically examined. Following the interrogation of her phone by forensic technicians, SMS text and chat messages revealed she had been engaged in sourcing and supplying significant quantities of methamphetamine and cannabis from 23 February to 5 April 2017. The downloaded phone content showed the appellant co-ordinated the on-supply from other persons or actively engaged in the supply of methamphetamine and cannabis in varying amounts and prices to a number of individuals. Typically the appellant would receive queries about q’s (quarter points = 0.25 grams), hbs (half balls = 3.5grams) bs (balls = 7 grams) and g’s (1 gram). Different prices were negotiated, depending on the customer, and a time to collect or deliver the substances would be discussed. Sometimes the drugs would be exchanged for jewellery or other goods. Truck City and local shops would frequently be used as ‘drops’ for exchange, while on other occasions the appellant would deliver directly to the purchaser.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the Crown drew the sentencing judge’s attention to the sentencing remarks for the robbery matter, which identified that the appellant had previously relied on her purported commitment to change and to engage with rehabilitation and other services. The submissions on behalf of the Crown drew particular attention to the objective seriousness of the offending in count 3.[13] The sentencing considerations The sentencing judge referred to the maximum penalties for each count and observed at the outset that count 3 was the most serious as it carried a 25 year maximum penalty. It was accepted that the Crown could not identify with precision the quantity of drugs that had been sold in order to derive the proceeds charged in count 3, but it was clear that the drugs were being sold on a very regular basis.[14] The sentencing judge also noted that the material which had been downloaded from the appellant’s phone revealed the supply of both cannabis and methamphetamine on numerous occasions. So far as the supply charges were concerned, the sentencing remarks emphasized the significance of the role of an offender in the supply operation for sentencing purposes, and concluded that the appellant played a substantial role as the dealer.[15] The sentencing judge touched on a number of the appellant’s previous personal difficulties and previous drug convictions. Mention was made of the plea of guilty being at an early stage, although it was also noticed the appellant had declined to provide assistance to police. Reference was made to the pre-sentence report which indicated that the appellant did not see her drug use as the problem and that her response to being supervised in the community had been poor. The sentencing judge remarked that he doubted that rehabilitation played much of a role in the sentencing calculus, noting the previous convictions involved breaching bail and other orders, and that the appellant had shown little regard for the law in the past. The importance of general deterrence and punishment was stressed. In that respect, the sentencing judge remarked that the appellant “is going to have to learn the hard way”.[16] Ground 3: The learned sentencing judge failed to give any weight to rehabilitation Against that background, the third ground of appeal can be dealt with in relatively short order. As this Court has previously observed,[17] any contention that the sentencing court has accorded inadequate or excessive weight to a factor is properly viewed as a particular of manifest excess. For that reason, this ground of appeal as framed cannot stand alone and the contention made is properly considered in the context of the ground asserting manifest excess. Even were that not the case, in the present matter the sentencing judge obtained a pre-sentence report to assist with the assessment of the appellant’s prospects. As should be obvious from the appellant’s history as set out above, the prospects for rehabilitation were poor at the time of the sentencing proceedings. The breach of the suspended sentence was serious, involving ongoing criminal activities. The appellant’s prior criminal history, including breaches of orders and poor compliance with supervision, and her minimal employment history, were referred to in the remarks on sentence.[18] The sentencing judge gave appropriate consideration to the appellant’s prospects of rehabilitation. It was open to conclude having regard to her personal circumstances that her prospects of rehabilitation were poor. It was also open to conclude, the appellant’s relative youth notwithstanding, that the purpose of rehabilitation was not a compelling sentencing purpose in the circumstances of this matter.