Jordan v The King

[2023] NTCCA 2

CITATION:Jordan v The King [2023] NTCCA 2

PARTIES:JORDAN, Bruce

v

THE KING

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

JURISDICTION:  CRIMINAL APPEAL from SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 6 of 2022 (22029223)

DELIVERED:  21 February 2023

HEARING DATE:  17 February 2023

JUDGMENT OF:  Blokland, Brownhill JJ and Riley AJ

CATCHWORDS

CRIMINAL LAW – Sentence – Drug Offences – Appeal against sentence – No error in sequential reasoning process of sentencing judge – No justifiable sense of grievance from different sentences between co-offenders – No reliance on extraneous facts by sentencing judge – Error not made out – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed.

Misuse of Drugs Act 1990 (NT) s 5.
Sentencing Act 1995 (NT) ss 5(2), 5(4)(a) and (b), 40(1), 55.

Ahmad v The Queen [2022] NSWCCA 144; Cook v The Queen [2018] NTCCA 5; Dang v The Queen [2014] NSWCCA 47; Forrest v The Queen [2017] NTCCA 5; KMC v DPP (SA) [2020] HCA 6; Markarian v The Queen (2005) 228 CLR 357; Mohindra v The Queen [2020] NSWCCA 340; Pantorno v The Queen (1989) 166 CLR 466; The Queen v Idrikson [2014] NTCCA 10; The Queen v Olbrich (1999) 199 CLR 270; Wong v The Queen (2001) 207 CLR 584.

REPRESENTATION:

Counsel:

Appellant:M Shaw KC

Respondent:  L Babb SC/L Auld

Solicitors:

Appellant:Shaw & Henderson

Respondent: Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  16

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

Jordan v The King [2023] NTCCA 2

No. CA 6 of 2022 (22029223)

BETWEEN:

BRUCE JORDAN

Appellant

AND:

THE KING

Respondent

CORAM:BLOKLAND, BROWNHILL JJ and RILEY AJ

REASONS FOR DECISION

(Delivered on 21 February 2023)

1. This was an application for leave to appeal and, if leave is granted, an appeal against sentence on 3 grounds. The grounds were: (1) that the sentence was manifestly excessive, which had three sub-grounds also put as specific errors on the part of the sentencing judge; (2) that the sentencing judge engaged in a two staged approach to sentencing rather than an approach by way of ‘instinctive synthesis’; and (3) that the sentencing judge denied the applicant procedural fairness.

2. On 17 February 2023, we decided to grant leave to appeal and dismiss the appeal. These are our reasons for doing so.

   Background

3. The applicant pleaded guilty to one count of supplying a commercial quantity of cannabis, a Schedule 2 drug, contrary to s 5(1) of the Misuse of Drugs Act 1990 (NT).

4. He was sentenced to imprisonment for nine years, with a non-parole period of six years and four months. There was no challenge to the non-parole period, which was a consequence of the exclusion of a suspended sentence where the head sentence exceeds five years imprisonment pursuant to s 40(1) of the Sentencing Act 1995 (NT), and the mandatory requirement for a non-parole period of 70% of the head sentence for this kind of offence pursuant to s 55 of the Sentencing Act.

5. The agreed facts on the plea were essentially that, for a period of around 12 months, the applicant used his business in Adelaide as a cover for sending consignments of cannabis to the Northern Territory by freight as part of a syndicate operating in Darwin and Alice Springs. The syndicate’s distribution method involved filling large metal drums with 60 x 1 pound packages of cannabis, packaging the drums into crates to look like regular consignments from the applicant’s business, and sending them from Adelaide to Darwin via a national freight company. The syndicate members received the cannabis, and paid the syndicate’s Darwin head for it, either directly or through associates. The syndicate sent substantial amounts of cash to Adelaide. The applicant lodged the consignments of cannabis at the freight company depot in Adelaide and confirmed lodgement and arranged collection with syndicate members in the Northern Territory. A total of 10 consignments were sent by him during the relevant period. On three occasions, the offender travelled to Darwin himself to receive the consignment and deliver it to syndicate members. By this means, the applicant facilitated the supply into the Territory of approximately 1,576kg (to Darwin) and 130kg (to Alice Springs) of cannabis. The syndicate’s operations were sophisticated and methodical, using the guise of the applicant’s legitimate business. If the cannabis had been sold by the pound in the Northern Territory, its value was over $20.8 million.

6. The respondent was 59 years old at the time of sentencing and had no prior criminal history related to drug offending. He entered an early guilty plea. He was found to be a man of prior good character. He was not a cannabis user. He had suffered some significant life setbacks, including injury in a boating accident, consequent financial difficulties, prostate cancer, complications from surgery, the loss of a relationship and loneliness, all of which led him to turn to drinking alcohol and withdraw from those who might have supported him. A psychiatric assessment indicated that the applicant may have been suffering from depression, but the expert opinion was that while this may have been associated with his becoming involved with the syndicate, it was not significantly causally associated with the offending. This condition was not put in mitigation of the offending, but simply, along with the other life setbacks, to explain or partially explain it. The sentencing judge accepted that the applicant became involved with the syndicate in the context of significant life setbacks and some level of depression.

7. The applicant’s role was not of principal in the syndicate, but it may be inferred from the facts that: (a) it was his business that was used as a cover for the transport of the cannabis; and (b) he lodged the cannabis consignments and collected them himself (on three occasions) or arranged for their collection in the Northern Territory, that his involvement was essential to the syndicate’s supply chain. The sentencing judge found as much.

8. The applicant had no prior relevant criminal history and the sentencing judge accepted that he was a man of prior good character. However, the weight to be given to general deterrence, punishment, denunciation and protection of the community in cases of commercial drug supply are generally greater than factors particular to the offender such as prior good character.[1]

9. Eleven other people have been sentenced for their role in the syndicate.

   Ground 2 – ‘two-staged approach to sentencing’

10. It is convenient to deal with this ground first.

11. The applicant asserted that the sentencing judge engaged in a ‘two staged approach’ to sentencing of the kind held to be erroneous in Wong v The Queen (2001) 207 CLR 584 (‘Wong’) at [74]-[75] and Markarian v The Queen (2005) 228 CLR 357 (‘Markarian’) at [39].

12. The applicant pointed to the following passage from the sentencing judge’s sentencing remarks:

    Although your offending must be seen at the very upper end of the range of seriousness, for the reasons I have just stated, the starting point for your sentence will not be the maximum of 14 years, but instead, will be 12 years.

13. The argument put was that the sentencing judge identified a starting sentence of 14 years imprisonment due to characterisation of the seriousness of the offending at the very upper end of the range of seriousness, and then effectively assigned a mathematical value to the applicant’s prior good character, absence of relevant criminal offending and his age, so as to reduce the starting point to 12 years imprisonment before deducting a 25% discount for the early guilty plea. The identification of 14 years was said to be the first stage, and the reduction from 14 years to 12 was said to be the second stage, of that approach. The submission was supported by reference to the sentencing judge’s question to the prosecutor, during argument on sentencing, that given the large quantity of cannabis involved in the offending, the sentence should ‘start around the maximum and work back from there’.

14. As regards the sentencing judge’s question during argument, statements made by the sentencing judge in argument do not form part of the reasons for imposing the sentence, and they cannot be relied on to establish error in the sentencing exercise.[2]

15. The applicant’s argument depended heavily on construing the words ‘for the reasons I have just stated’ as referring only to the preceding paragraph of the remarks in which the sentencing judge referred to the applicant’s early plea, his prior good character, the absence of relevant criminal offending and the need to moderate the sentence to take into account his age. There is no warrant for reading those words as so confined, rather than as referring to all of the preceding paragraphs of the remarks, which related to both the offending and the applicant.

16. We do not accept that the sentencing judge proceeded as the applicant asserted. The term of 14 years imprisonment is the maximum penalty prescribed by s 5 of the Misuse of Drugs Act for the offence with which the applicant was charged. As the plurality held in Markarian,[3] careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them, and secondly because they invite comparison between the worst possible case and the case before the court at the time, and thirdly because in that regard they provide, taken and balanced with all of the other relevant factors, a yardstick.

17. We reject the submission that the sentencing judge took a ‘mathematical approach’ of the kind eschewed by the High Court in Wong because he started with the maximum penalty and worked backwards. What the sentencing judge did was refer to (pay attention to) the maximum penalty of 14 years, characterise the seriousness of the case before him as being at the very upper end of the range of seriousness (that is, relative to the worst possible case for which that maximum penalty is reserved), and conclude that in light of that yardstick and all of the matters before him, both in relation to the offending and the applicant, a sentence of 12 years imprisonment was appropriate before the discount for the guilty plea. It was a sequential reasoning process, but there is nothing erroneous about that per se.[4]

18. The sentencing judge did not arrive at a subliminally derived figure and then add or subtract, item by item, passages of time in order to fix the time to be served in prison, as was eschewed by the High Court in Markarian.[5]

19. The sentencing judge did not commit the error asserted by ground 2.

    Ground 1 – manifest excess

20. The principles applicable to this ground are well known and have been stated by this Court many times.[6] The sentence must be plainly, not just arguably, excessive; it must be unreasonable or plainly unjust; the presumption is that there is no error; appellate intervention is not justified simply because the result below is markedly different to other sentences; intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, although not apparent from the reasons; the appeal court must approach the sentence in the context that there is no single correct sentence and there may be differences of judicial opinion within compliance with appropriate sentencing principles.

21. The applicant asserted that the sentence of nine years imprisonment is manifestly excessive and pointed to three specific ways in which it was said that the sentencing judge erred, being that: (i) the sentencing judge placed too much weight on the quantity of cannabis supplied; (ii) the applicant’s sentence offended the principle of parity; and (iii) the sentencing judge failed to have regard to the applicant’s prospects of rehabilitation.

22. The applicant argued that the sentencing judge attributed too much weight to the quantity of cannabis involved, by reference to the asserted ‘two-stage approach’ to sentencing (which we have rejected for the reasons set out above) and the sentencing judge’s question about the effect of the quantity already referred to (reliance on which we have also rejected).

23. Considered in the context of his sentencing remarks as a whole, we do not accept that there was undue weight given to the quantity of cannabis involved. The sentencing judge also made reference to, importantly, the role of the applicant in the transportation of cannabis into the Northern Territory, including the use of his business to do so, his lodging the consignments and arranging for their collection or doing that himself, and when he did the latter, his collecting the crates and delivering them to an associate’s premises, taking them apart and storing the drums. The sentencing judge also made reference to there being 10 separate consignments over the 12 month period over which his offending occurred. The sentencing judge also referred to the personal circumstances of the applicant, and found, on the basis of the report from the psychologist, that the applicant became involved in the drug trade in the context of significant life setbacks and depression, which explained (at least partially) but did not justify the offending. We do not accept that the sentencing judge engaged in a process of reasoning in which ‘other equally important sentencing considerations were tempered or put to one side’ due to emphasis on the quantity of cannabis involved.

24. The applicant argued that the sentence below was inconsistent with the principle of parity because of disparity between it and the sentences imposed upon the other eleven syndicate members sentenced for their roles in the syndicate, particularly James and Wagner. The eleven syndicate members received sentences ranging from imprisonment for nine years (the applicant) to imprisonment for three years (Macfarlane).

25. During sentencing submissions, James and Wagner were said by the Crown to have a higher level in the syndicate than the applicant. Both men were also sentenced by the sentencing judge.

26. James was the head of the Darwin limb of the syndicate. He received a sentence of seven years imprisonment for the offence of supplying some of the cannabis the subject of the applicant’s offending (9 of the 10 consignments using the applicant’s business). He was involved in the arrangements by which the cannabis from consignments was distributed to syndicate participants for sale and monitored and enforced their financial obligations. James’s sentence on this count comprised a ‘starting point’ of 14 years imprisonment, which was then reduced to seven years on account of his guilty plea, that he had his assets valued at $874,152 forfeited as crime-used property (that is, property legitimately acquired but used in the offending), and that he had given assistance to authorities in the forfeiture proceedings.

27. Wagner was one of two men involved in collecting money from syndicate participants and providing it to James or sending it to Adelaide. He received a sentence of seven years imprisonment for the offence of supplying some of the cannabis the subject of the applicant’s offending (8 of the 10 consignments using the applicant’s business). Wagner’s sentence on this count comprised a ‘starting point’ of 14 years imprisonment, which was then reduced to seven years on account of his guilty plea and his assistance to authorities, which included that he provided the passcodes for the cypher-phones used by the syndicate members to communicate, thereby permitting police to identify and link the members of the syndicate.

28. Only the applicant committed offending relating to all 10 of the consignments from Adelaide using his business.

29. We do not accept the submission that involvement in the commercial side of the syndicate’s operation (ie the selling of cannabis) or the collection of its money is more morally culpable than the applicant’s role in facilitating the transport of the cannabis to the Northern Territory under the cover of a legitimate business. Nor do we accept the submission that the explanation for the applicant’s involvement in the syndicate reduced his culpability as compared to James and Wagner. Nor do we accept the submission that the applicant’s level in the syndicate’s hierarchy must be reflected in a sentence lower than that of James and Wagner. Nor do we accept the submission that the applicant’s role and culpability was not markedly different to that of the syndicate members other than James and Wagner, most of whom were sentenced for offences comprising receiving and distributing cannabis and remitting funds back to the syndicate. Such submissions minimise the extent of the applicant’s involvement in the syndicate’s operations, the importance to the syndicate’s operations of his actions in facilitating the transportation of the cannabis, and the significance of doing so under the guise of a legitimate business, making detection very difficult.

30. In any event, it is not correct that the applicant received the same ‘starting point’ (ie the sentence before discounts for guilty pleas and any property forfeiture and assistance to authorities) as James and Wagner. Their starting points were 14 years, whereas the applicant’s starting point was 12 years. This reflects the differences between the seriousness and moral culpability of their offending and that of the applicant, as well as the applicant’s age.

31. We do not accept the argument that the disparity between the applicant’s sentence and James’s is not justified by the forfeiture of James’s assets because that penalises the applicant for not being involved in offending characterised by commerciality. It simply reflects a relevant factor which the Court is required to take into account in determining James’s sentence.[7] There is no warrant for that relevant factor, not present in the applicant’s case, to feature in the determination of the applicant’s sentence.

32. We do not accept that the disparity between the sentences of the applicant and the other members of the syndicate, particularly James and Wagner, is such as to give rise to a justifiable sense of grievance. Rather, the disparity exists because of relevant differences between the offending and the offenders.

33. The applicant argued that the sentencing judge attached too little (or no) weight to the applicant’s prospects of rehabilitation because those specific words (‘prospects of rehabilitation’) did not appear in the sentencing remarks and the sentencing judge referred only to the applicant’s prior good character and lack of antecedents.

34. The appellant’s argument reads the sentencing remarks with ‘a hyper-critical eye’ and contrary to the presumption that the sentencing judge knows the law.[8] Section 5(2) of the Sentencing Act, which sets out the matters to which a court must have regard in sentencing an offender, makes no reference to ‘prospects of rehabilitation’. That is not to say that an offender’s prospects of rehabilitation are not relevant in sentencing, but it demonstrates that the words ‘prospects of rehabilitation’ are not determinative.

35. The sentencing judge referred to the applicant’s guilty plea, prior good character, lack of antecedents and his age in reaching the starting point for the sentence was 12 years imprisonment. In the absence of any direct evidence of remorse or steps taken towards his own rehabilitation, these were the key considerations relevant to his prospects of rehabilitation. It cannot be concluded that the sentencing judge did not take the applicant’s prospects of rehabilitation into account or afford them appropriate weight. It is to be noted that, in cases involving commercial supply of significant quantities of cannabis, prior good character and prospects of rehabilitation do not carry much weight.[9]

36. The appellant has not demonstrated that the applicant’s sentence was unreasonable or plainly unjust.

1. The sentencing judge did not commit the errors asserted by ground 1.

   Ground 3: procedural fairness

2. The applicant asserted, relying on the High Court’s decision in Pantorno v The Queen,[10] that the sentencing judge failed to afford the applicant procedural fairness because he drew the inference that the applicant had packed the cannabis into the drums himself, which was not a fact agreed on the plea.

3. The applicant pointed to the following passage from the sentencing judge’s sentencing remarks:

   There is no evidence that you actively sourced the cannabis consigned by you from Adelaide to the Northern Territory. The cannabis was probably provided to you by your criminal associates in South Australia, referred to in par 2 of the Crown facts. However, the evidence strongly suggests that you packed the cannabis in the green metal drums referred to earlier. That is entirely consistent with the fact that you agreed that your business would be used as a cover for sending consignments of cannabis to the Northern Territory by road freight. Also, when police searched your home address … they found three empty green metal drums of the same type seized at the time of your arrest at Northline Darwin. Moreover, when police searched your business address … they found numerous tubes of black silicone, consistent with the silicone used to seal the drums seized by police in Darwin.

4. This passage does not indicate that the sentencing judge drew the inference as asserted by the applicant. The passage relates to matters not found or established on the evidence. It commences with an observation that there is no evidence about sourcing the cannabis. It is followed by a passage that refers to the extent of the applicant’s role (in travelling to Darwin to collect the consigned crates), which includes reference to what ‘the evidence establishes’. That language contrasts with the passage set out above, in which the sentencing judge does not make a finding beyond reasonable doubt; he simply observes that ‘the evidence strongly suggests’ the applicant packed the drums. The passage includes that the cannabis was ‘probably’ sourced by the applicant. Such language is not the language of an adverse inference drawn by a judge who is presumed to know the law that where a finding is adverse to the applicant, it is incumbent on the prosecution to prove it beyond reasonable doubt.[11] In the remaining sentencing remarks, the sentencing judge reiterates matters identified in the following passage, but makes no further reference in the sentencing remarks to the applicant packing the green drums himself.

5. We therefore do not accept that the sentencing judge erred by drawing the inference that the applicant packed the drums himself.

6. The sentencing judge did not commit the error asserted by ground 3.

   Disposition

7. For the above reasons, the application for leave to appeal was allowed and the appeal was dismissed.

   __________________

[1]See Cook v The Queen [2018] NTCCA 5 at [25]-[26].

[2].     See Ahmad v The Queen [2022] NSWCCA 144 at [20] per Mitchelmore JA (Meagher JA and Bellew J agreeing), citing Mohindra v The Queen [2020] NSWCCA 340 at [37] per Basten JA (Johnson and Davies JJ agreeing) and Dang v The Queen [2014] NSWCCA 47 at [32] per Adamson J (Simpson and Davies JJ agreeing).

[3]At [31].

[4].    See Markarian at [24].

[5]At [39].

[6]See, for example, Forrest v The Queen [2017] NTCCA 5 at [63]-[64].

[7]See s 5(4)(a) and (b) of the Sentencing Act.

[8]See KMC v DPP (SA) [2020] HCA 6.

[9]See The Queen v Idrikson [2014] NTCCA 10 at [30] per Riley CJ, Southwood and Kelly JJ.

[10](1989) 166 CLR 466.

[11]See The Queen v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.