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 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
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.