Horder v The Queen - [2019] NTCCA 3

CITATION:Horder v The Queen [2019] NTCCA 3

PARTIES: HORDER, Damian

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 21 of 2017 (21725162)
DELIVERED:  10 January 2019
HEARING DATE:  7 June 2018
JUDGMENT OF:  Grant CJ, Blokland and Barr JJ
CATCHWORDS:

CRIMINAL LAW – DRUG OFFENCES – JUDGMENT AND PUNISHMENT

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 operation which generated the monies, offender’s role in operation and what became of the monies – assessment may also require comparison with the sentence fixed for criminal conduct by which proceeds derived – sentence to imprisonment for five years manifestly excessive – appeal allowed and applicant resentenced.
Misuse of Drugs Act (NT) s 8, s 37

Carroll v The Queen (2011) 29 NTLR 106, Clarke v The Queen [2019] NTCCA 2, Thorn v The Queen (2009) 198 A Crim R 135, referred to.
REPRESENTATION:
Counsel:
Appellant:JCA Tippett QC
Respondent:  D Morters
Solicitors:
Appellant:Maleys Barristers and Solicitors
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  15

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Horder v The Queen [2019] NTCCA 3

No. CA 21 of 2017 (21725162)
BETWEEN:

DAMIAN HORDER

Appellant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 10 January 2019)
THE COURT:
[1]The appellant was charged by indictment with intentionally supplying a commercial quantity of cannabis and intentionally possessing $28,800 in cash knowing that it was obtained directly or indirectly from the supply of a dangerous drug. The maximum penalty for the supply offence was imprisonment for 14 years, and the maximum penalty for the possession of the tainted monies was imprisonment for 25 years.
[2]The appellant pleaded guilty to both charges and on 28 November 2017 he was convicted and sentenced to imprisonment for three years for…

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 Horder v The Queen

Details

AGLC: Horder v The Queen [2019] NTCCA 3
Case: [2019] NTCCA 3
Decision Date: 10 January 2019

CaseChat Overview and Summary

The applicant, Horder, appealed against a sentence of five years imprisonment imposed by the Supreme Court of the Northern Territory for the offence of dealing with tainted monies. The appeal concerned whether the sentence was manifestly excessive in all the circumstances of the offence and the offender.

The central legal issues before the Court of Criminal Appeal were whether the charge of dealing with tainted monies constituted an abuse of process when the monies were derived from a supply offence with which the offender was also charged, and how the objective seriousness of the offence of dealing with tainted monies should be assessed under section 8(1) of the *Misuse of Drugs Act* (NT). The Court also considered whether a sentence of five years imprisonment was manifestly excessive.

The Court reasoned that while dealing with tainted monies derived from a supply offence does not constitute a separate act of criminality warranting an additional charge, it is not an abuse of process to charge both offences. Such overlap in conduct, elements, or criminality is properly addressed in the imposition of penalty, often through concurrent sentences. However, concurrency is not always necessary, particularly when the tainted monies originate from a source other than the supply offence. In assessing the objective seriousness of dealing with tainted monies, the Court held that consideration must be given to the amounts involved, the number and duration of transactions, the sophistication and scale of the operation generating the monies, the offender's role, and the disposition of the monies. A comparison with sentences for the underlying criminal conduct may also be relevant.

The Court concluded that the sentence of five years imprisonment was manifestly excessive. Accordingly, the appeal was allowed, and the applicant was resentenced.

Orders