Court v Pelekanos - [2018] NTSC 49

CITATION:Court v Pelekanos [2018] NTSC 49
PARTIES:COURT, Michael
v

PELEKANOS, Lawrence

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 41 of 2017 (21730228)
DELIVERED:  25 July 2018
HEARING DATE:  27 November 2017
JUDGMENT OF:  Hiley J
CATCHWORDS:

CRIMINAL LAW – CROWN APPEAL - DRUG OFFENCES – SENTENCING - Intentionally possess a trafficable quantity of a Schedule 1 drug – Cocaine – Supply to 6 friends for recreational use together - Objective seriousness of offending – Application of principles in R v Roe - Importance of punishment, denunciation and general deterrence - Sentence by way of fine manifestly inadequate – Head sentence of imprisonment necessary - Appeal allowed
Local Court (Criminal Procedure) Act (NT) s 177; Misuse of Drugs Act 1991 (NT) s 7C, s 37
Green v The Queen [2011] HCA 49; R v Wilson [2011] NTCCA 9; Rigby v Kotis [2018] NTSC 48, applied
R v Alexander Hatzivalsamis & Anor SCC 21708473 and 21708479, referred to
REPRESENTATION:
Counsel:
Appellant:T Grealy
Respondent:  P Maley
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Maleys Barristers & Solicitors
Judgment category classification:   B
Judgment ID Number:  Hil1808
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Court v Pelekanos [2018] NTSC 49

No. LCA 41 of 2017 (21730228)
BETWEEN:

MICHAEL COURT

Appellant

AND:

LAWRENCE PELEKANOS

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 25 July 2018)
Introduction

The appellant has appealed against the sentence imposed upon the respondent by the Local Court on 11 August 2017. The respondent pleaded guilty to and was convicted of intentionally possessing a trafficable quantity of a Schedule 1 drug, namely cocaine, in a public place, on 23 June 2017, contrary to s 7C(1) of the Misuse of Drugs Act. He was sentenced to a fine of $5000, with a victim’s assistance levy of $150.
The quantity of cocaine involved was 28 grams. That is 14 times the amount prescribed under the Misuse of Drugs Act as a trafficable quantity (2 grams). The maximum penalty for the possession of a trafficable quantity of a Schedule 1 drug in a public place is 14 years imprisonment.[1]
Section 37(2) of the Misuse of Drugs Act imposes a mandatory requirement that a person convicted of an offence that carries a penalty of seven years imprisonment or more serve a term of actual imprisonment of not less than 28 days unless the Court, having had regard to the particular circumstances of the offence or the offender, is of the opinion that such a penalty should not be imposed. The respondent served six days in remand and was then granted bail on conditions which included him reporting to police three times a week and surrendering his passport.
The appellant appeals on the ground that the sentence was manifestly inadequate in all the circumstances of the offending and the offender. Notwithstanding that it may have been open to the sentencing judge to find particular circumstances of the kind referred to in s 37(2) the fundamental contention on behalf of the appellant is that the sentence should have been imprisonment.
This appeal was heard at the same time as Rigby v Kotis[2] which involved issues similar to those here, in particular a Crown appeal against the adequacy of a fine as distinct from imprisonment for offending that involved possession and or supply of a trafficable quantity of cocaine where the quantity involved was in the region of 28 grams (1 ounce).
I consider and discussed the principles regarding Crown appeals against sentence in Rigby v Kotis and do not need to repeat them here. I also discussed what is known as the “residual discretion” and the proviso contained in s 177(2)(f) of the Local Court (Criminal Procedure) Act.[3]
Relevant facts provided to the Local Court
The defendant, now the respondent in these proceedings, was a 26 year-old male living in Adelaide, South Australia. Some time prior to 10:30 AM on 23 June 2017 he sourced a quantity of cocaine from an unknown source in Adelaide with the intention of transporting it to Alice Springs. He packaged 28 grams of cocaine inside a freezer bag before wrapping that bag inside a separate freezer bag. That freezer bag was sealed in a Cryovac bag and smothered in toothpaste. A second Cryovac bag was placed around the package, in an attempt to avoid detection by law enforcement officers. He placed the package inside two pairs of underpants he was wearing and then boarded a Qantas flight at Adelaide airport and travelled to Alice Springs. When he arrived at the Alice Springs airport he was searched by police and the Cryovac package containing the 28 grams of cocaine was found and seized. It was agreed that if the cocaine was sold in Alice Springs by the gram the 28 grams had the potential to yield $14,000.
The prosecutor tendered a bundle of photographs and the defendant’s criminal history from South Australia, which contained a single conviction for driving under disqualification or suspension.
Counsel for the defendant tendered a bundle of references and letters. Three of them attested to his good character and another two evidenced his attendance at counselling sessions and ongoing treatment at a drug rehabilitation facility in South Australia. Counsel told the Court that he had been a recreational drug user for some six years since he had spent some time on holidays in Mexico when he was about 21 years of age. After he was arrested for this offending and spent six days in the Alice Springs correctional facility he realised that he needed to desist from using drugs. Accordingly he has moved back home to live with his parents and has been attending drug counselling and has been seeing a psychologist to get further help to overcome his habit of using recreational drugs.
On this particular occasion the defendant and six friends were travelling to Alice Springs for a week. He had purchased the cocaine for $6000. The cocaine was to be shared with his friends during their week’s trip in Alice Springs and they were to reimburse him for their share.
Her Honour’s reasons
Her Honour noted the maximum penalty of 14 years, that the amount of the drug was three quarters of what has been prescribed as a commercial quantity and that Schedule 1 drugs are listed as such because of their deleterious effect on both people and the community as a whole. Her Honour also observed that the respondent appears to be an intelligent young man and would and should have known the risk that he was taking when transporting and using such a quantity of the drug.
Her Honour made a number of significant findings. These included findings: that the respondent was intending to use the cocaine with his six friends during their week longer holiday in Alice Springs; they would be reimbursing him for their shares of the $6000 that he had paid for the cocaine; there was “no evidence … that he intended to make any financial gain at all”; and “there was no intent on his behalf to distribute to the general community, only to his known friends, who wish to use the drugs.”
Her Honour then referred to other matters such as his positive character, steps taken by him to avoid use of recreational drugs and to deal with issues which caused him to use such drugs, his early plea and his expressions of remorse. After referring to her consideration of relevant principles regarding sentencing in relation to Schedule 1 drugs Her Honour said:
[I]n looking at the particular circumstances of this offence, it seems to me, given the particular nature of what he intended to do and who he was bringing drugs for, he does differentiate from those cases in some respects. He was not intending to … despoil the Northern Territory per se, but share with his friends who were also from interstate on holiday. There was no particular financial gain and no evidence he would end up with more money than what he had paid for in relation to the drugs.
Her honour found that there were particular circumstances. Her Honour did not, but could have, also referred to the fact that he had spent six days in custody, and also other things he had been doing since being released on bail including moving back with his parents and continuing with his university studies and part-time retail work.
Submissions and consideration
Counsel for the appellant contended that her Honour failed to impose a sentence that reflected the seriousness of the offending and imposed a sentence which did not meet sentencing standards.
Counsel referred to the decision of the Court of Criminal Appeal in R v Roe[4] where the majority identified factors relevant to an assessment of moral culpability and objective seriousness of offending involving methamphetamine, also a Schedule 1 drug. These include the social consequences that follow from the commission of the offence, the existence of a commercial venture in the supply of drugs, the role of the offender in that enterprise, the level of his or her participation in the offending, the reward which the offender hoped to gain, the difficulty in detecting such offending and the quantity of drugs involved.
Referring to these factors counsel for the appellant pointed out that the offending involved the importation of cocaine into the Northern Territory from interstate, the offender’s role was more than that simply of a mule, and that the quantity involved was at the higher end of trafficable quantities. Whilst these matters are self-evident, I disagree with some of the other submissions put by counsel for the appellant.
Counsel contended that “it may be inferred that the respondent would have received some reward (though not financial) which was commensurate to the significant risk he took.” There is no basis for such an inference, particularly beyond reasonable doubt.
Counsel also contended that her Honour attached too much weight to her finding that the respondent was supplying to willing friends rather than the general community. Counsel submitted that “regardless of who the respondent was supplying (be it to people known to him or strangers), he was supplying a dangerous drug to people in the Northern Territory.” Counsel contended that even though he did not initially intend to supply to other people in the Northern Territory community “he [may] have been persuaded to supply more generally, particularly given the significant profit that might have been obtained.” Counsel contended that 28 grams was a large quantity to be shared by only seven people in the space of one week and that “[t]here is likely to have been considerable temptation to (at least) recover costs by selling some of that amount to other people in the Northern Territory.” Again, I reject those contentions. There would have been no basis for her Honour to reach those kind of conclusions at all, let alone beyond reasonable doubt.[5]
In relation to the “commercial” nature of the offending the circumstances in the present matter were rather unusual in that the supply was to be only to the six identified friends of the respondent solely for their own use. The overwhelming number of drug cases which end up in the Supreme Court involve supply to unnamed and undisclosed people who are likely to supply some or all of it to other members of the community. Although the quantity involved was significant, there is no basis for challenging her Honour’s conclusions about the intended use of the cocaine. It was not the kind of commercial enterprise normally referred to in the authorities.
Counsel also submitted that the offending was more serious because the supply to the respondent’s friends would be more difficult to detect than supplied to other members of the public. This is because it would be done behind closed doors and not on the streets. I do not agree with this contention. Most of the cases that are seen, in this Court at least, involve drugs that have been detected by police using methods similar to those adopted here rather than by random discovery on the streets.
Counsel for the appellant also referred to the various matters put in mitigation including his positive character, his attempts to overcome his recreational drug habits, his remorse and his prospects of rehabilitation, but contended that when weighed against the seriousness of his offending the resulting mitigation was minimal. Counsel referred to part of the sentencing remarks in Hatzivalsamis[6] where Southwood J said:
The weight to be given to rehabilitation, generally speaking, is lessened in cases such as this, particularly where offenders come from good backgrounds and were in meaningful employment making commensurate amounts of money.
Although that proposition cannot be gainsaid the circumstances in that case were distinguishable from the present. See my discussion about that in Rigby v Kotis at [38].
There is no doubt that punishment, denunciation and general deterrence are very important factors to be taken into account when sentencing for offending involving the supply of dangerous drugs. However that does not mean that little weight should be given to the kind of circumstances which existed in the present case.
Counsel for the appellant also contended that the imposition of the fine would not be a personal deterrent to the respondent because his limited financial circumstances were such that it would be paid by his parents, initially at least. However he acknowledged that, and one would expect that, he would repay his parents. Contrary to counsel’s contention I consider that such an ongoing obligation to his parents would serve as an ongoing reminder of the fact that he had committed the offence and that he should not do so again.
In support of her contentions that the sentence was manifestly inadequate counsel for the appellant provided a table summarising previous sentences imposed in both the Local Court and Supreme Court for the possession of cocaine. This is the same table as that which I discussed in Rigby v Kotis. For the reasons stated there I did not find those sentences of much assistance.[7]
Of greater assistance are the penalties imposed by this Court for the supply or possession of trafficable quantities of other Schedule 1 drugs. As I pointed out in Rigby v Kotis offending of this kind ought to attract a head sentence of imprisonment in order to properly reflect the need for denunciation and general deterrence. This is so even though the offending involved a single occasion of supplying the drugs to six friends.
Conclusions and orders
I consider that the sentence imposed upon the respondent, namely a modest fine, was manifestly inadequate. A sentence of imprisonment was required.
However, I do not consider that if the respondent was to be resentenced now it would be necessary or appropriate for him to serve further time in prison. Indeed he has already spent six days in custody. Rather he should be given the benefit of a suspended sentence. This is particularly so in light of his good character and his efforts to overcome his previous problems with drugs. I do not consider that other factors such as specific deterrence and protection of the community are of any relevance in his case. There is no suggestion that anything has happened since he was dealt with by the Local Court that would warrant him being removed from his family, work and present circumstances in South Australia and sent to prison. Moreover I do not consider that a suspended sentence would require supervision or conditions. I agree with her Honour’s findings of particular circumstances of the kind contemplated by s 37(2) of the Misuse of Drugs Act.
In my opinion none of the factors referred to in the authorities such as R v Wilson[8] and Green v The Queen[9] which might enliven the Court’s use of the residual discretion or which would invoke the Court’s application of the proviso in s 177(2)(f) exist in these circumstances. The prevailing requirement is that proper sentencing standards are maintained and in the case of sentencing error such as occurred here, the error corrected.
Accordingly, I will allow the appeal and resentence the respondent.
Subject to any further evidence or submissions from counsel I would sentence the respondent to 12 months imprisonment but fully suspend that sentence forthwith.

___________________

[1] Because the parties agreed to the matter being heard in the Local Court, that Court could only impose a maximum penalty of five years imprisonment.

[2] Rigby v Kotis [2018] NTSC 48 (Rigby v Kotis).

[3] See particularly Rigby v Kotis [2018] NTSC 48 at [54] – [68].

[4] [2017] NTCCA 7.

[5] Indeed I note that during his submissions counsel for the respondent told the judge that a person could consume between 5 and 7 grams on a “good night”.

[6] R v Alexander Hatzivalsamis & Anor (SCC 21708473 and 21708479, Sentencing Remarks, 8 August 2017).

[7] See Rigby v Kotis [2018] NTSC 48 at [43] – [44].

[8] [2011] NTCCA 9.

[9] [2011] HCA 49; (2011) 244 CLR 462.